Everyone knows that it is good trial strategy to connect with jurors and avoid alienating them, right? But sometimes, in our eagerness to advance aspects of our case, we don’t think of how some of our words and actions are perceived by jurors.
In our over 20 years of talking with jurors in post-trial interviews and with mock jurors, they have provided many examples of attorneys who did not appear to give enough thought to the effect their words and actions might have on jurors. Such was the case with the attorney who, during voir dire, was attempting to undermine the credibility of the opposition’s experts and their academic backgrounds, while trying to bolster the hands-on, field experience of his own experts. As he sought to cast doubt on their upcoming testimony, he emphatically argued the following to prospective jurors: “We all know it’s true that those who can, do, and those who can’t, teach.”
With one comment, this attorney alienated a good portion of the prospective panel, who, like many of us, had family members or friends who were teachers, or had personal teaching experience, or remembered a favorite school teacher with great fondness. Needless to say, he failed in the goal of connecting with the jurors and made the task of persuading them to be open to his case much more difficult.
In this blog, we’ll look at why knowing about your jurors (and prospective jurors) is key in persuading them to hear and accept your case. At trial, jurors are the audience that counts and you’ll want to connect with as many of them as possible with the goal of persuading as many of them as possible.
Why Focus on Your Audience – the Jurors?
Attorneys say what they say at trial to obtain a particular response from jurors – to have those jurors find for their clients. While each juror has his or her own particular frame of reference – their own interests, knowledge and experiences – through which they filter the arguments, evidence and testimony they hear and see, people tend to focus most closely on things that are important to them. They pay particular attention to messages they perceive as affecting them and aligning with their own values, beliefs and personal interests.
Attorneys are often so focused on the evidence or testimony that they forget to step back and remember the needs of the people they’re talking to. Yet it’s that very focus on your audience, the jurors, and their needs that should guide everything you do and say. If you’re going to obtain the response you hope for from these people – a verdict in favor of your client – they have to understand your case and be able to argue on your behalf. As such, thinking about what will enable them to do so is paramount.
Can I Connect with Every Juror?
People process things differently, but we all can handle only limited amounts of information at one time. When faced with large amounts of conflicting and ambiguous facts, which are rampant in a trial, people use cognitive shortcuts and create stories about “what happened here” to help them evaluate the competing cases. These stories act like filters; information consistent with their stories is accepted, but inconsistent information tends to get partially or completely ignored. Therefore, people can “hear” the same set of facts and draw very different conclusions. Of course, it’s not realistic to think you’ll be able to convince every person, but by aligning and adapting your messages to your audience’s values, beliefs and interests, you are more likely to be more persuasive with more people. Knowing about and understanding your jurors is vital to approaching your case in such a way that jurors can “hear” your side of the story.
How Do I Learn About the Characteristics of My Jurors?
How can we learn about our prospective jurors and their characteristics? Even before trial starts, you can obtain valuable information about your jurors and what they will likely find persuasive. Two excellent sources of that information are social searches and mock trials.
- Social Searches as a Source of Information. In today’s world, people share incredible amounts of information on publicly available online forums. Obtaining information from what people share about themselves and from other public sources can be particularly helpful in jury de-selection, especially in federal court and other times when voir dire is limited. This information can also be very helpful in understanding some of the probable filters jurors hold and in tailoring your messages in ways jurors can assimilate. In addition, to further support the trial team’s awareness of the characteristics of their jurors, at Litigation Insights, once jury selection is completed, we provide our clients with a summary of all of the information we know about the seated jurors from our social searches and voir dire. This allows counsel to have this information at their fingertips.
- Mock Trials as a Source of Information. If you have the benefit of conducting a mock trial in advance, you will already know which themes resonate with jurors and help them to assimilate your story. In addition, from the statistical analysis of mock jurors’ backgrounds, you can have an excellent idea of some of the key characteristics of your “worst” jurors for jury de-selection.
Additional Tips for Connecting with Jurors
The following are some additional tips jurors have told us they find helpful and that establish an attorney’s persona as successful and persuasive. In particular, they appreciate it when attorneys (and witnesses) exhibit the following behaviors:
- Have clear themes that communicate your key messages. Jurors appreciate brevity and clarity.
- Teach important information and concepts without being arrogant or condescending. It is important to be understandable and avoid jargon.
- “Connect the dots” for jurors, helping them understand how disparate pieces of evidence and testimony relate to your story and themes. Remember: you know the story but they don’t.
- Clarify ambiguities. In the absence of information, people “fill in the gaps,” so you want to minimize the opportunities for them to do so.
- Look for opportunities for common ground. People have a tendency to prefer those they believe are similar to themselves. Psychologists refer to this as the similarity/leniency bias. It suggests that presenters should seek opportunities to find similarities and common ground with jurors, but it is also important to not cross the line into pandering to them. For example, one very experienced and successful attorney we have worked with always tells the story of growing up on a farm and the advice that his working class father gave him. He does this in such a way that makes him come across as just an average guy, which makes him seem familiar and accessible to jurors, rather than patronizing.
Most effective attorneys have figured out that it’s not only the evidence, but the story and knowing their audience that allows them to connect with jurors. Adapting their messages to the needs, experiences and preferences of their audiences enables attorneys to be more persuasive in developing advocates for their cases in the jury room.
By: Barbara Hillmer, Ph.D. – Senior Consultant