This week, Will Smith delivered what the Oscars have desperately needed in recent years: something for people to talk about the next day. It’s hard to imagine a hotter topic around the water coolers this week. Plenty of jokes will be flying as evidenced by Conan O’Brien’s Tweet asking if anyone has a late night show he can borrow just for Monday. I’ve already heard the one about Smith immediately inking a deal to star in the “Pursuit of Slappyness.” I know a lot of litigators who don’t care about the Oscars and probably find it silly (perhaps even annoying) that so many people waste their time and energy talking about a tiff between two celebrities at an awards show; however, there is a critical lesson in all of this for courtroom strategy, and it’s a lesson that too few litigators appreciate.
Work with us and inevitably you’ll hear one of our favorite sayings, “A verdict is a product of what jurors choose to talk about most in deliberations.” Juror focus is zero sum. If they are talking about one issue, they are not talking about another. Consequently, every subject in deliberations inherently distracts the focus from some other issue in the case.
This may sound cliché, or perhaps too general, but the implications are profound. We have had a few significant matters lately where we were able to fundamentally change the outcome in our mock trials by changing what the jurors talked about in deliberations. In one of those cases, we got our butts kicked pretty bad in the first mock trial and realized we needed to shift the topic of discussion. We wrote new presentations that refocused and repackaged the key issues into a different topic and angle on the case, tested them in another round of mock trials, and witnessed an astonishing shift in the verdicts, completely eliminating anything close to the $100M+ verdicts we saw in the first mock trial.
Watercooler talk is important, and it teaches us a valuable lesson about presentation strategy at trial. Every attorney needs to understand what jurors find most interesting about the case because that is what they will want to talk about when they get to deliberations, and what they want to talk about impacts the entire course of deliberations. It directly impacts the momentum each party gains in the deliberations. Sometimes, early momentum for the opposing party is difficult or impossible to recover from. In other words, the watercooler subject of the case might favor one party over the other. Consequently, if jurors begin deliberations on that subject, it creates early momentum for that party. It emboldens some members of the jury and it silences others who have little to offer on the subject at hand.
This is also when the group dynamic emerges. At the start of deliberations, as the jurors talk through the first issue of their choosing, they get a sense of who else on the jury is credible, competent, worth listening to, and worth following. The topic of discussion in this early stage of deliberations directly impacts each of these. If the starting topic favors the plaintiff, it could discourage defense advocates on the jury from speaking up. Even worse, perhaps they speak up, argue for the defense, and lose that argument because it is not seen as significant to the rest of the panel and the decision at hand. That defense advocate may not enjoy the experience of losing an argument in front of a group of strangers, so he or she may lack the motivation to speak up again, meaning the defense has just lost a key advocate. Or perhaps the motivation remains, but in the eyes of the other jurors, that defense advocate no longer has credibility because he or she just lost the argument on the first thing they spoke about.
Years ago, I worked on a series of similar cases for which we did several rounds of mock jury research. One of the universal findings was that we could predict the verdict based on what the jurors in each group spoke about first. If they spoke about us first, we lost every time. If they focused on the opposing party first, we won every time.
This is why it is so critically important to understand the watercooler subject in your case. It may not be the most important issue in the case (perhaps not important at all), but it can have a profound impact on everything else that happens in deliberations.
