By Thomas M. O’Toole, Ph.D.
Last month, I wrote about the importance of juror note-taking and raised the question of how an attorney might exert influence over a juror’s note-taking through his or her trial presentation. The fundamental concern was that, despite numerous studies and opinions about the value of allowing jurors to take notes, little attention has been given to how the way in which jurors take notes impacts their use and value during deliberations. This concern stemmed from a recent shadow jury experience I had where I was able to watch the various ways in which the jurors took notes during trial. Some jurors’ note-taking appeared to be completely random with no observable pattern. These jurors appeared to take notes on issues that each side might agree were completely irrelevant. Conversely, they failed to take notes on issues that we felt were extremely important. Other jurors furiously took notes, accumulating their own little transcription of the trial.
The problem is that neither of these note-taking styles are helpful. The random approach provides no structure or map for jurors to draw on during deliberations. The transcription approach buries key issues in the multitude of pages, making it difficult for the juror to locate key items when he or she needs to defend against opposing advocates in deliberations. This can create momentum for the other side and change the course of deliberations.
This all led me to wonder if there are ways an attorney can structure his or her presentation over the course of trial to influence the ways in which jurors take notes. There has been nothing (that I can find) written on this topic, which makes this discussion more exploratory than anything else.
Since part one of this blog, I’ve discussed the topic with a few attorneys as well as a few judges from different trial venues. The feedback from the judges was interesting. My primary question for them (knowing this was an issue) dealt with how objectionable it would be for an attorney to make note-taking recommendations in his or her opening statement. All of the judges agreed that, if the other side objected, the objection would have to be sustained. Three of the judges openly wondered whether or not there was a way to address it in voir dire, which I found interesting since this is where most of the attorneys I spoke with focused the issue.
With the focus on voir dire in mind, here are my initial thoughts on how an attorney might approach the issue. The caveat, obviously, is that this approach has not been road-tested. I typically try to avoid brainstorming in blogs and publications, but I strongly believe this is a potential strategy that is worth exploring in this regard given the dearth of research and discussion.
My initial thought is that the attorney should gradually build up the issue. A good place to start might be a question addressing jurors’ ability to take notes.
“You will hear from the judge that you will be allowed to take notes during trial that you can use during deliberation. I want to start by asking if there is anyone here who believes they would have difficulty taking notes over the course of trial?”
From there, I might examine the willingness to take notes, with a follow-up question such as.
“Is there anyone here who, for any reason at all, would generally prefer not to take notes during trial?”
Attorneys may need to add an element to the questions that make it clear that jurors have no obligation to take notes just to make sure this discussion is consistent with the judge’s preliminary instructions.
These questions have two primary purposes. First, in the future, when strategies to guide juror note-taking become a more common presentation tactic, attorneys will want to know if there are jurors who are unable or unwilling to take notes. More important, in the interim, these questions create a probing context to the questions to follow that functionally package recommendations to the venire about how to take notes as genuine exploratory questions in voir dire.
From here, I would transition to the questions that package the note-taking recommendations.
“As you have heard, this is going to be a long trial, which may mean that you take a lot of notes. Is there anybody here who would be opposed to setting aside the first page or two of their notebooks to keep a list of the key arguments and evidence that I point out over the course of trial to use as sort of an index or quick reference page?”
From there, I would expand upon the recommendation:
“What I would like to do is keep a going list of key issues and evidence on these large post-it pads to help you figure out what should go on that first reference page or two. Is there anyone here who has problems with me doing this?”
It may seem manipulative to suggest that counsel should disguise these recommendations as voir dire questions, but they also function as genuine voir dire questions as well. I’m not entirely sure how it is different from other questions to venire members about non-substantive things that will happen over the course of trial. For example, I’ve heard attorneys mention that their client will not be present every day of trial and ask whether or not jurors have a problem with that. These note-taking questions seem to be somewhat in the same vein.
If I were recommending these voir dire questions to an attorney, my recommendation would be to ask them at the very end of voir dire. This is for two reasons. First, voir dire time is limited and these questions cannot become a distraction to the real goal of voir dire, which is to identify and eliminate high-risk jurors. This is the most important task in voir dire and must be the priority. In fact, in situations where voir dire time is significantly limited (for instance, I recently had a case where the federal judge allowed each side a total twelve minutes of voir dire), I would not recommend attempting this strategy. The second reason for asking these questions at the end of voir dire is that it probably makes sense to have this discussion as close in time to the actual opening statement as possible since the attorney will want to have elements of opening that are a natural extension of these note-taking recommendations.
In the opening statement, these questions tee the attorney up to initiate the process of structuring the jurors’ note-taking in a way that does not give rise to an objection. For example, without making any recommendation at all, the attorney can simply walk up to the 3M pad, draw a line down the middle, and write “Issue” and “Evidence” at the top of each column. The context created in voir dire will allow jurors to understand what is going on. The attorney’s act of creating the cover page should prime/encourage jurors to do the same. In doing so, the attorney is not making an argument or anything of the sort, which should help him or her avoid objections. From there, the attorney should use this list throughout trial. On the left side, identify key issues. On the right side, write down exhibit numbers, etc.
The critical element of this strategy is avoiding a situation where the list becomes too cluttered or overwhelming. Remember: if everything is important, nothing is important. The goal is to essentially create a clear, understandable index of the issues the attorney wants to have at the forefront of the discussion during deliberations. This requires some tough decisions by the attorney about what is and what is not important. But honestly, these tough decisions need to be made regardless of whether or not the attorney engages in this note-taking recommendation strategy.
Since this is essentially new territory for strategy development and recommendations, I would love to hear your thoughts, concerns, objections, modifications, etc. I am an old debate nerd who really enjoys these kinds of discussions about new and interesting ways to tackle issues at trial, so shoot me an email ([email protected]) with your thoughts.