Juror Engagement Versus Juror Listening

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Kathy was dead set on sticking it to our client, the defendant. She knew in her bones that things had happened just the way the plaintiff had described, and it made her angry. It was only a few years earlier that Kathy had experienced a similar situation in her workplace where she was passed over for a promotion. It marked the beginning of a year-long unraveling of her life and Kathy blamed it all on her employer. As she listened to the plaintiff’s story, Kathy could see it perfectly in her head, as if she was personally experiencing it all over again. When she got back into the jury room, she knew exactly how she wanted deliberations to end: with a big verdict against the defendant. While the plaintiff was only asking for a few million dollars in damages, Kathy had her eyes on a bigger number. It was a nightmare scenario for our client. Thank God it was only a mock trial and Kathy was only a mock juror.

There are a lot of lenses through which we could analyze what happened with Kathy, the most obvious being jury selection and the importance of probing for personal experiences that will cause jurors to identify with your opponent’s narrative. However, another equally important take-away is the power and importance of engagement. Kathy’s personal experience was important because it served as a trigger for her active engagement in the case. It created a connection to Kathy’s own personal life that immersed her into the case. She was no longer just a passive listener on the jury, but actively engaged, going as far as reliving the experience in her own mind as she listened to the plaintiff’s case.

When we talk about the importance of having an engaging message, it is easy to take this as nothing more than run-of-the-mill, generic advice without really appreciating what it truly means for trial strategy. Passive jurors don’t drive verdicts; actively engaged jurors do. Anyone who has ever watched a group of mock jurors deliberate knows this. The vocal advocates on the jury, who speak up and work hard to convince the group to go a certain way, are the ones who were engaged throughout the trial. Rather than just listen to the case, they interacted with it, projecting their own lives into it.

Yet, we continue to see so many trial presentations that treat jurors as mere passive listeners. Maybe it is because some attorneys don’t know the difference. Maybe it is because some attorneys don’t understand how to actually create a truly engaging presentation. I want to focus on the latter. Here are five simple strategies for increasing jurors’ engagement with your case presentation.

1. Personalize the case. We live in an egocentric culture. This is not a judgement; just an observation of the reality of how we make sense of the world around us. Nobel Prize-winning psychologist Daniel Kahneman showed us in his research that the most persuasive messages are those that tap into a sense of familiarity. Our brains gravitate to what is familiar. A familiar argument will usually defeat a factually accurate argument when the two are in conflict. This is why it is so important to find a way to connect parts of the case to the personal lives of the jurors to create a sense of familiarity. When successful, the jurors inject themselves into the case, imagining themselves as characters in the story you are telling.

2. Give jurors something to believe in. Why does your case matter? What does it stand for? What values does it uphold? Every case speaks to a fundamental value, even the most mundane cases. Jury consultants exist to help attorneys find that value when it is difficult to see. Grounding a case theory and presentation in the shared values of your jurors is critically important because it invests the jurors in the case. They will feel compelled to defend that value in the deliberation room, which means they will become active participants working hard to protect ideas that are important to who they are.

3. Be an inspiring teacher like Ms. Wilson. There are two kinds of teachers: those who show up and do the basic job and those who truly love their profession and are passionate about finding new ways to connect to students. Ms. Wilson is the latter and is one of the best teachers I have seen. Passionate teachers are always looking for inspiring ways to teach material and that was what Ms. Wilson does. They want their students to get interested in and excited about the subject matter. They use every medium at their disposal, and they are not afraid to get creative. Many attorneys however seem reluctant to take a similar approach in the courtroom, instead relying on the same boring presentation styles and techniques that have pervaded courtrooms across the country for decades. The most successful attorneys I have come across like to be creative in the courtroom. They love their craft and are not afraid to try something new and different.

4. Be passionate. Just like Ms. Wilson, it is also important to be passionate. If you are not passionate about your case, how can you possibly expect it of jurors? Maybe you think you don’t need passionate jurors, but these motivated advocates control the course of deliberations. They will emerge regardless of whether or not you feel the need to stir passion in the jury box. The only question is whether they will emerge in your client’s favor or your opponent’s. Passion is contagious. If it is apparent that you truly believe in your case, jurors are more likely to believe in it as well. If instead, you’re just showing up and doing the job (even doing it well), jurors sense that as well. Our culture is shaped by inspiring leaders and the same is true of courtroom culture, so it is important to step up and find ways to be that inspiring leader for jurors. However, you cannot fake passion and emotion. As an old friend and colleague used to say, “Jurors have finely-tuned BS detectors.” They can tell when emotions are disingenuous and your credibility will be lost.

5. Entertain the jurors. Persuasion is fundamentally entertainment, and the courtroom environment does not change that. When we are bored, we check out. When we are entertained, we stay engaged. It is that simple. This does not mean you have to do anything outlandish and inappropriate. There are plenty of ways to entertain within the rules of decorum that the courtroom demands. Using a variety of mediums is one simple way to entertain. Animations and graphics designed as “eye candy” go a long way. Working hard to become a more dynamic speaker is another.

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