By Thomas M. O’Toole, Ph.D.
It is a scary proposition to hand a case that you have worked on for months or years over to a jury for final adjudication. With all that’s on the line, it’s actually quite preposterous when you think about it. It took you months or years to learn enough about the case to bring it to trial and present it. Now you’ll hand the fate of all that work over to a small group of random people, who probably knew nothing about the issues in the case before they showed up for jury duty. You have no clue what they will do. All you can do is wait and hope.
It doesn’t necessarily have to be this way. As I’ve discussed in previous blog posts, attorneys focus too much on strategies for persuasion at the expense of strategies for controlling deliberations. A persuaded juror is not necessarily an influential juror and this is important because the safest bet for any attorney is to assume there will be some division amongst the jurors when they enter that deliberation room. Strategies for persuasion do very little for the attorney in this scenario. Either they were persuaded or they were not. Now, the jurors need to figure out how to resolve the division and render a verdict.
As I’ve said in the past, attorneys should think of deliberations as a debate between jurors. This means the attorney is more of a debate coach than a debate participant. His or her job over the course of trial is to prepare persuaded jurors to win the debate in deliberations.
There are a variety of strategies an attorney can deploy to arm his or her advocates on the jury to win the debate in deliberations, but in this post, I want to discuss deliberation instructions in closing argument. In other words, I want to discuss how an attorney can and should instruct jurors how to deliberate in the closing argument.
Winning an argument or debate often comes down to controlling what is debated or argued. This is why process is so important. Where a jury begins their deliberations heavily influences the outcome. For example, if jurors begin deliberations by going around the table and having everyone state their “feelings” about the case, this can build anger and frustration towards a party early in the deliberation process, which can be very difficult for that party to overcome. Conversely, if the jurors start by looking at the first verdict form question and the corresponding jury instruction, this may lead to a more procedural approach that caps the influence of emotional reactions to the case. These are just two of the common processes. Sometimes, jurors jump to a question further down the verdict form and start their deliberations there. Sometimes, jurors start by talking about what they want to accomplish as a group and then reverse-engineer the verdict form and jury instructions to accomplish that end.
The possibilities for how the jurors choose to deliberate are endless. Consequently, it is absurd to leave it up to them to figure out how they want to deliberate. Instead, attorneys should dedicate time in their closing argument to showing the jurors how they should deliberate once they get back to the jury room.
Here are five key elements for effectively instructing jurors how to deliberate in the jury room.
1. Acknowledge the difficulty of figuring out how to deliberate. Consider starting this part of your closing by acknowledging the fact that the trial process may be new to a lot of the jurors and they have patiently waited through days or weeks of complex and, at times, confusing testimony. Acknowledge that it can be tough to figure out how to deliberate when they finally get back to the deliberation room. Suggest to them that they should start by figuring out a process for deliberations before they start talking about the actual case. This simple discussion will help them start thinking about the process.
2. Propose a process for deliberations. Give them a suggested process for deliberations. Tell them exactly what you want them to do. If you want them to review a particular jury instruction, tell them to look at that before they even start talking about the verdict form question it applies to. Tell them what you want them to pay particular attention to in the jury instruction and explain to them why your suggestion is an important one. The key is to walk them through the process that you want them to follow. Don’t assume it is obvious because nothing is obvious when people are overwhelmed with complex and confusing information.
3. Tell them where to start their deliberations. The starting point of deliberations is a key moment in the process. What jurors choose to talk about first often influences what they talk about for the remainder of deliberations. It sets the focus and can establish critical momentum for one party or the other. For example, if jurors begin deliberations by going around and having everybody share their general feelings about the case (essentially venting), this can build anger and frustration that can be difficult for the party that benefits from a procedural approach to overcome.
4. Pick 3-5 exhibits you want them to focus on. In all my years of interviewing jurors after trial and conducting mock trials, I have never seen a jury or mock jury look at every exhibit that was presented to them. Last year, I interviewed jurors after a four-week trial where over one thousand exhibits were admitted. The jurors told me they looked at six exhibits during the three days that they deliberated in the case. If jurors are only going to look at a few exhibits in the case, you should consider telling them in closing what those exhibits should be.
5. Tell them what not to do. Finally, tell jurors what they should not do. If your client benefits from a procedural approach and the opposing party has a strong emotional appeal, show the jurors the jury instruction about not letting emotion drive their decision-making and explain to them why this is important. This does not mean that you can shut down emotion in deliberations, but it does mean that you have primed your advocates on the jury to squash it when emotion starts to run amok.
