By Thomas M. O’Toole, Ph.D.
“A verdict is a product of what jurors choose to focus on.” This mantra has been drilled into my head since my early days of working on my doctorate in Legal Communication and Psychology. The extraordinary simplicity of the statement causes it to teeter on the brink of cliché, but as my favorite author David Foster Wallace once said, “the most obvious, important realities are often the ones that are hardest to see and talk about.” Clichés are clichés for a reason: they speak to simple truths. Sometimes, however, these simple truths are so simple that they are easy to ignore, but to steal another line from Wallace, I’d ask you to “bracket for just a few minutes your skepticism about the value of the totally obvious.”
Jurors’ focus is zero-sum. If jurors are focused on one thing, they are not focused on something else. This is critical once you consider the research that suggest jurors remember as little as 10% of what they heard over the course of trial by the time they reach deliberations. Any given case has hundreds or thousands of pieces of information associated with it. This is true of even the simplest cases. It may not feel that way to the attorneys, but that is because the attorneys have already determined what he or she believes is important about the case (i.e. he or she has already established a focus). Consequently, many facts and a lot of testimony will be forgotten or ultimately have no impact on deliberations. Focus serves as the gatekeeper for what is considered important and unimportant, which plays a critical role in what is remembered and discussed during deliberations.
For this reason, all strategy revolves around focus. If you control the focus, you control the discussion, and as the “cliché” goes, you control the outcome. Thus far, the discussion has been academic and somewhat abstract, so let’s get concrete. There are multiple layers of focus. The first level of focus is a question of who you want the jurors talking about during deliberations. This is fairly simple to answer. If you are the plaintiff, you want jurors talking about the defense, and if you are the defense, you want jurors talking about the plaintiff. Jurors do not spend hours of deliberations time heaping praise on the object of their focus. The more they focus on something or someone, the more critical they will become. In over a decade of experience watching mock jurors deliberate, interviewing shadow jurors, and talking to actual jurors after trial, I cannot recall a single instance where jurors’ focus on our client was beneficial to us.
Let’s look at plaintiffs, for example. I have a close friend who does a lot of plaintiff work. He told me about a case once where the actions by the defendant were pretty egregious, but the damage to the plaintiff was not great. Consequently, he was concerned that there was not much value to the case. What he failed to understand at the time was that jurors award large damage figures out of anger and frustration, not out of sympathy. Consequently, the actual damages suffered by the plaintiff were, in some respects, irrelevant (i.e. damages make the plaintiff the focus). The value of the case came from the egregious nature of the defendant’s actions. A strategy that effectively focused jurors on the actions of the defendants and generated anger and frustration was going to produce a larger damage award than a focus on the plaintiff’s injuries. When jurors are unhappy with a defendant, they want to send a message. In this respect, the damages serve a punitive function, even though punitive damages might not be in play. In Washington, where punitive damages are generally not allowed, we simply call them “noneconomic damages.” In other words, jurors will find a way to implement their punitive measure. There are a variety of ways to accomplish this without ever suggesting punishment or something similar. Instead, this is the product of focus on the frustrating choices of the defendant.
Switching sides, the same benefit can be obtained by defendants. In order to award money to a plaintiff, jurors have to want to find in favor of the plaintiff. If they do not want to find in favor of the plaintiff, they won’t or they will award such low damage figures that the verdict is functionally a defense victory even though it is technically a plaintiff’s victory. I have seen cases where the relevant evidence and law favored the plaintiff, but we were able to craft a strategy that critically-oriented jurors towards the plaintiffs in such a fashion that they simply did not want to find for the plaintiff, regardless of the strength of the evidence or testimony. Some might call the resulting verdict jury nullification, but it is more nuanced than that. In these instances, jurors interpret the evidence, testimony, and law in a way that leads them to believe they are actually following the law and drawing the ”just” conclusion. In academia, this is called motivated rationality, which means that people decide what they want to believe first and then interpret everything around them to support that belief. They explain away contradictory facts, discount them, or simply ignore them.
The second level of focus is the practical execution of the case presentation throughout trial. While it is simple to know whether you want the focus on the plaintiff or defendant, it is much more difficult to craft a strategy that effectively achieves this focus. The best example here is from the defense point of view. Defendants want the critical focus on the plaintiffs, but this can be difficult to achieve. In many cases, the defense cannot come right out of the gate with arms swinging without risking significant backlash from the jurors. Instead, these defendants have to “earn the right” to be critical, which means they have to achieve a presentation level focus that results in the deliberation focus being on the plaintiff.
Let’s look at a recent case I worked on that involved the death of a young child. The plaintiffs were the parents who were suing a company that owned the recreation area where the child died. This was a case where each side had its own set of weaknesses. The defense weaknesses made it very difficult for the defense to come right out and blame the parents even though there was decent evidence to suggest that the parents were responsible for the events that led to the child’s death, primarily because of their failure to watch over their child. Early on in trial, we adopted a theme of “overwhelmed parents.” We never came out and said this. Instead, we told a story where we described the events in a manner that allowed jurors to arrive at this conclusion on their own. We focused on situational elements that were overwhelming, such as the number of children and pets they were trying to watch at the same time, their total lack of familiarity with the environment of the recreation area, and several other factors. We liked this strategy because everyone can relate to overwhelmed parents. It created a tone of sympathy , but ultimately still made the parents the focus. This allowed us to get key issues out there early in trial without risking backlash and then be more aggressive in closing argument after the evidence and testimony came in (which is where we earned our right to be more aggressive).
In every case, there are two levels of focus. There is the focus that you want jurors to have in deliberations and then there is the focus of the case presentation. Sometimes these are the same, but often they are not. Instead, the case presentation focus often has to be more subtle or nuanced in order to achieve the deliberation focus. It is important to differentiate the two. This is why the storytelling recommendation that pervades the jury consulting industry often falls short. Storytelling focuses on the story that jurors construct in deliberations. After all, all of the research on storytelling as it relates to litigation focuses on how jurors create stories in deliberations. This does not mean attorneys are storytellers. Instead, attorneys are strategic presenters who subtly guide jurors’ focus in a manner that leads them to construct the desired story in deliberations. Consequently, the real art of jury consulting is the crafting of the presentation-level focus.
