By Thomas M. O’Toole, Ph.D.
It finally happened this past week. I was called for jury duty. I have spent my entire adult life studying jury behavior and decision-making. I spent years in graduate school and wrote a dissertation on juror sense-making to receive my Ph.D. in legal communication and psychology. I’ve read thousands of studies on juries. I’ve worked in the field for over a decade. I’ve watched hundreds of mock juries deliberate. Yet, I had never been called for jury duty.
There were many surprising things about the experience, but most surprising were the distractions and the boredom. I know jury duty can make life difficult for jurors. I know jurors sit around and wait a lot. I know the process can be quite boring. Yet, before this experience, I had not appreciated the reality of it.
Despite my excitement to experience directly what I have studied for so long, my first thought was concern for the time commitment. This is a busy time of year. The kids are getting ready to go back to school. There is always a “back to school” phenomenon with work where things get really busy. I had no idea how I was going to manage my work and meetings if I was selected to be on the jury. In short, life is hectic, not just for me, but for everyone. This creates a fair amount of stress, which distracted me throughout the entire process.
This stress is important to discuss because it creates a distraction for jurors that has implications for attorneys. Jurors’ time is extremely valuable to them. This means attorneys need to be efficient. Jurors do not want their time wasted and are quick to grow impatient and annoyed with attorneys who seem disorganized. This takes more work than many attorneys appreciate. Most attorneys do not think of themselves as the type that are inefficient and wasteful of jurors’ time, but perceptions of time being wasted can come from unexpected sources that may not be obvious to attorneys. Here are just a few examples:
- Selling your case in voir dire or spending time on issues that jurors have difficulty understanding how they could be relevant to the case they are about to hear
- Spending the first 10 minutes of your opening statement talking about the importance of jury duty and what an honor it is to represent your client
- Spending 30 minutes in direct or cross with a witness before getting to topics that help jurors understand the issues in the case
- Long pauses as you try to find an exhibit
- Fumbling with technology
- Constant side-bars and/or objections
The lesson for attorneys here is that it is important not only to plan what you are going to do, but also how you are going to do it. For example, perhaps you have a good idea of how you are going to start your opening statement, but have you actually walked through it and practiced it? This is the kind of preparation that is critical to creating a tight, efficient, and effective trial presentation. You have to practice it to really know how you are going to do it. I know time is finite and it may seem as if there are more important trial preparation efforts that are needed in the limited time you have, but it does not matter how important information is if it is not presented well.
This may be an obvious recommendation for openings and closings, but similar preparation should go into direct and cross-examination. I have previously discussed how long, drawn-out efforts to build foundation with witnesses can undermine the case strategy. But more important, long, drawn-out efforts to build foundation are painfully boring and will cause you to lose your jurors. They will hear the words that are said, but they will not hear the message because they have disengaged. You have to lay foundation, but preparing for how that will be done can make you more efficient. Consider challenging yourself to figure out how few questions it can take you to properly establish a foundation. Brilliant trial strategies are often the product of relentless efforts to edit presentations down to the bare essentials.
The other issue with jury duty besides concerns about time and efficiency is boredom. I never appreciated just how much jurors have to sit and wait and how incredibly boring it is. Sure, I realized during those moments when voir dire did not start until 11 a.m. that the jurors had been waiting all that time, but I was busy with my own preparation, so I did not think about the boredom aspect. I did not consider the reality of being in a juror’s shoes and having to directly experience the boredom of that process. In my experience with jury duty, I waited in the jury room for a day and a half before anything happened. I did not enter a courtroom during that time. I just waited. The jury waiting room was very nice. It had comfortable chairs, vending, free coffee and water, books, etc. But it was still boring. Most jurors were not prepared for this on day one and did not bring something to work on or keep them busy. I overheard one juror say, “I didn’t realize I would be sitting here all day. I figured I would either get picked or sent home and I would be done.” By day two, everyone had laptops, books, or something to occupy their minds.
Once you are assigned to a courtroom, you wait 15-30 minutes for the bailiff to come get you. Then you wait in the hallway outside the courtroom as the bailiff puts everyone in order and waits for the judge to call the jurors in. Once you’re in the courtroom, you wait until everyone is situated before getting started with jury selection. If there’s private voir dire, you wait for that. If the judge handles hardships in open court, you wait a long time for that.
Then the judge conducts his or her voir dire, which involves long lists of individuals or companies that might be involved in the case in some way, shape, or form. This is incredibly boring. By this point, you just want to get to the action, but that is still a long ways away.
I’m not sure I have read anything before that talks about the extent of this boredom. It is real and it impacts attorneys. But it also creates opportunities. I recently read the book, Talk Like Ted, by Carmen Gallo. This book was very enlightening. I recommend it to all trial lawyers, even if the only benefit is the motivation it provides to give a better presentation. I taught public speaking at the university level for five years. I’ve functionally taught public speaking within the jury consulting profession for over ten years. People often think of public speaking as an art. Most people watch a TED presentation and think, “I could never give a speech that good.” They think the quality of the presentation is attributable to some inherent trait of the speaker. The reality is that these speeches are not the product of some artist or savant. Instead, they are the product of speakers who put incredible amounts of time and preparation into their presentation. Sadly, trial presentations do not receive the same amount of time and preparation. In some respects, it is understandable. Attorneys have full plates. There is a lot that needs to get done before trial. But, as previously mentioned, attorneys also need to consider the reality that information does not matter if it is not presented well. It won’t be remembered. It won’t be linked to the key issues it relates to, and consequently, it won’t make an impact in deliberations.
Attorneys need to learn to be presentation artists. This is not the product of talent, but of time and dedication. The bar is painfully low in a litigation setting. Incremental artistic improvements to trial presentations can make a world of difference. The key is dedicating the time to this part of trial preparation and giving yourself a license to be a little creative.
