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Arming Your Jurors for Deliberation
The Advantage: 12.06: V.3, 3rd edition
Over the past fifty years, an extensive amount of literature has been devoted to an examination of the impact of “extra-legal” factors on a jury’s decision-making process. “Extra-legal” factors are those factors that lie outside the scope of what is deemed legally relevant to judgments of guilt and/or liability. While legal theory presumes jurors are only influenced by those elements formally presented at trial, extensive research shows that extra-legal factors can have a considerable influence upon a jury’s decision-making process. Examples of common extra-legal factors include attorney presentation style, hindsight bias, injury severity, implicit case themes, and juror personalities.
A well-known theory of persuasion, the Elaboration Likelihood Model (ELM) offers both a framework and a solution for addressing these confounding variables within the courtroom. ELM posits individuals process messages through two cognitive routes: central or peripheral, and depending upon which route is used, one’s opinions will be modified or changed differently.
In the central route, message processing involves a higher level of cognitive reasoning; there is more elaboration or more effort used to find and scrutinize material or arguments. In a trial setting, a juror who cognitively processes information using the central route, more actively engages with the evidence put forth by each side and evaluates that evidence against the applicable laws as dictated by the court, the attorneys, and the jury instructions. On the other hand, peripheral route information processing is low effort, less elaborative, with a focus on cues, such as a speaker’s tone or appearance, rather than the message or argument itself. A juror who cognitively processes information using the peripheral route allows peripheral cues or extra-legal factors (i.e., how the plaintiff interacts with his or her attorney while sitting next to each other) to exert influence during the formation of that individual’s beliefs and attitudes towards the case.
At the heart of ELM, lie the issues of motivation and ability. Specifically how “motivated” is the individual to actively engage in or process the information and arguments being presented? And, does the individual posses the “ability” to actively process the information and arguments being presented?” Motivation comes in a variety of ways: genuine interest in the information or material, belief that the information is personally relevant in some way, or the belief that they are participating in an exercise that is righting an injustice. Ability refers to one’s cognitive abilities—one’s skill level or aptitude for understanding the material being presented. Individuals who are both motivated and able to process a message will use the central route while others will rely upon peripheral cues to guide the formation of their attitudes.
This raises two important questions for attorneys: 1) Has the trial team effectively developed the necessary psychological motivations to compel jurors to apply the law in favor of their client? 2) Has the trial team devoted adequate consideration to ensuring the information is accessible and comprehensible?
ELM research has consistently shown the strength and longevity of attitudes resulting from central processing are significantly more prevalent than attitudes resulting from peripheral processing. A natural extension of this finding is that jurors who use central processing in a way that favors your trial team will possess greater influence in the deliberation room because they are both motivated and able to be your advocate. In essence, you have armed your jurors to be your advocate at the most crucial of times—in the deliberation room.
The first issue the trial team must address is motivation; a juror will not become your advocate in the deliberation room unless the motivation exists to do so. Psychological motivation needs to be established early in the case--as early as opening statements. Remember, the goal is to compel jurors to process information in a manner that is favorable to your client. If the psychological motivations are established late in trial, the jurors have missed out on a number of opportunities to arm themselves to effectively argue your case in the deliberation room. Or, even worse, they have interpreted the information in favor of the other side.
To help establish motivation you might ask yourself: “What can the jury feel good about if a verdict is rendered in my client’s favor?” Playing a role in the making of a “just” or “right” verdict is a psychologically satisfying outcome that will motivate many jurors. Motives can vary across cases. In a medical malpractice case, a physician who is well respected and highly regarded, and later appears likeable on the witness stand, may steer jurors towards a defense verdict. In this case, jurors might find it difficult to “punish” a physician they believe is a good person and one they could see as their own.
Another example involves a construction case. In a case where apartment building tenants are suing a construction company that built the apartment complex for injuries resulting from exposure to “toxic” mold, a jury could find it psychologically satisfying to steer the tenants in the right direction by finding that it was the lack of maintenance on the part of the apartment’s management team that led to the mold exposure and not negligence on the part of the construction company. By pointing the tenants in the right direction, the jury is allowing them to see the real source of the problem and take action to prevent similar injuries in the future. This is an outcome that jurors can feel good about.
The second issue to address is the jurors’ ability to process the message. Once the jury is motivated to embrace your case theory, they must possess the means to be your advocate. This requires jurors be provided with the language and explanations to effectively argue your case in the deliberation room. Without this, your greatest supporters function as weak advocates in the deliberation room. We often witness, in our mock jury research, mock jurors who are motivated to fight for one side but do not have the ability to articulate their strong feelings about the case because the attorney representing that side has not armed them with sufficient language and themes. This makes it difficult for these mock jurors to fight back when facing strong mock juror advocates for the other side. Or even worse, the natural human tendency when lacking the confidence to articulate an opinion is to remain silent. Silent advocates do not lead to favorable verdicts!
A variety of studies have shown that when message comprehensibility is low, peripheral cues play a significantly greater role in the formation of attitudes. What this means for the trial team is that, if your evidence and testimony is not accessible to the jury, they will look elsewhere for guidance in interpreting the case issues. This is where extra-legal factors tend to exert undue influence in the decision-making process and/or where the jury begins to embrace the other side’s story.
A recent example of this problem was observed during a medical malpractice trial. The attorney, who has a very distinguished career representing defendants in medical malpractice litigation, rigorously examined the expert witnesses covering all the minute details of the case. While it was quite an impressive display of his medical knowledge, the information was communicated in a manner that made it inaccessible to the jurors. During post-trial interviews, jurors frequently commented on how impressed they were with the attorney’s knowledge on the medical issues. However, despite the awe, they were unable to adequately understand the complex medical issues that were being discussed. Jurors consistently stated their regret that he had not asked each of the experts to explain the medical issues in “layperson” terms. If jurors do not adequately understand the case issues, they are not equipped to argue your case in the deliberation room.
Focusing on these two issues, motivation and ability, is critical to the success of any litigation. Attorneys should address these issues early, not only early in the trial, but also early in the planning stages for trial. A strategy that incorporates these concerns can help guide discovery and the development of an appropriate case strategy and is the first step towards a verdict in your favor.
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