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A View From the Jury Box: Jurors From a Recent Trial Share Their Observations
The Advantage: 12.08: V.5, 3rd edition
We recently had the opportunity to talk with a group of jurors who served on a multi-week trial in a State court case. Six of the twelve jurors met with us to discuss their overall reactions to the trial process. Their observations about the evidence, the witnesses, and the arguments were, as usual, enormously helpful in understanding what worked and what didn’t. This group of jurors was particularly vocal about the presentational aspects of the trial-- the elements that exist in nearly every trial. The quotations are accurate and remind us what an amazing instrument an American jury can be.
We’re watching you.
The main event may be taking place on the witness stand, but jurors are watching everyone at every moment. “We noticed what the non questioning attorneys and witnesses were doing. We observed nose picking, pens rolling up and down the tips of noses, and knuckle chewing.” But don’t worry about these behaviors -- jurors chalked this up to normal fidgeting. What you do need to be aware of are behaviors that could have a negative impact. Jurors reported suspicions of intentional distractions, “One of the lawyers was coughing due to cold, but some of us wondered if it was an intentional ploy to create a distraction during devastating testimony.” “Another lawyer was shuffling papers as if he was trying to make noise. And it was always right next to the microphone during testimony of the opposition. We wondered if they were trying to keep us from focusing on the witness.” Jurors also talked about telling nonverbal demeanor at counsel table. “Some of the attorneys looked bored. I wondered if they even cared.” Another commented, “One of the lawyers was constantly leaning back in his chair. It looked sloppy and to some of us, disrespectful to the whole process.” The attorneys’ actions also served as a barometer of how worried they were. “If they were rearranging big piles of paper, and not paying too much attention, we knew alarms weren’t going off. If they started taking a lot of notes, we knew they had some concern.” The key – don’t give the jury anything to think about. Sit up, focus on the testimony, and don’t draw unnecessary attention away from the witness stand.
What are you wearing today?
Is it really possible to go three days, or in some cases five weeks, without discussing reactions to the evidence and witnesses? Jurors tell us, “Yes.” “We listened and adhered to the judge’s instruction to refrain from talking about the issues. We knew that doing so would obstruct the justice process.” So what do jurors talk about? As you might suspect, they talk about you, or should we say your clothes. One juror told us, “We scored their ties everyday to see who was wearing the prettiest, coolest, nicest looking one. And we'd poll each other to see who won.” Often, attorneys ask us if the jury will hold it against them if they are wearing an obviously expensive suit. This jury told us, “No.” The three-piece suits, fancy ties and cuff-links won every time. “The clothes had nothing to do with our decision. They all wore nice clothes, and we loved to see the really nice clothes. But that’s not what mattered. It comes down to how they treat witnesses on the stand.” So don’t worry too much about what you wear, just don’t wear the same suit two days in a row.
Thank you for showing us
Graphics are becoming a mainstay in the courtroom. There’s almost no such phenomenon as “too slick.” The interviewed jurors sang the praises of demonstrative aids. “We loved the high tech and low tech approaches to helping us understand this case.” One juror disclosed, “I was at sea most of the time with the details, so to have those educational graphics was really helpful. They took data and turned it into information.” But just as much as having effective graphics can help, not having them can hurt. “The fact that some of the attorneys didn’t have graphics made me think they were trying to obfuscate the facts. It was like they were hoping we didn’t get it.” Humans are visual learners, and they need visual tools to help them learn. But don’t think you have to go high tech. In this trial, a wide variety of graphic aids were used – flip chart drawings, animated PowerPoint slides, on-the-fly document callouts, magnetic boards, and good old-fashion courtroom props. The key to each was that it made a relevant point to help make sense of complex issues. And the jury loved them all. “We never felt pandered to. We felt educated,” jurors explained. “We even drew the picture one of the attorneys drew in closing on our own flip chart to help us stay focused during deliberation.”
Where to stand, where to look.
When it comes to sitting or standing when examining witnesses, jurors favored standing. “It looked like they were more engaged when they were walking around,” reported one juror. Another stated, “The question and answer was really the most important part, but it was more exciting when the attorneys were up there approaching the witness stand. It was powerful and it gave me something to watch.” Keeping the jury engaged is an important part of your job throughout the entire trial. Jurors told us that eye contact with the jury box was another effective way keep the jury involved. But they also reported that constant eye contact with the jury was unnatural. “We’re watching a show. The plot is the attorney getting the story from the person who’s telling it. We’re supposed to watch that story unfold.” Jurors expected the experts to talk to the jury more than the fact witnesses. “I liked it when the experts looked at us every once in a while. But I thought it was arrogant when the attorney would say ‘would you explain to the jury’ and the witness would not.” “What didn’t work,” one juror reported, “was when an attorney would score a point with a witness or make a joke, then look at the jury like, ‘Hah, did you hear that?’” Eye contact is effective when it is natural and engaging, not when it becomes a part of a charade.
Too many “I don’t knows.”
This jury confirmed what jurors have told us in the past – they do not trust the “I don’t know” answer. As one juror reported, “I started tallying the ‘I don’t knows,’ and when I got to 35, I thought ‘what do you think, we’re stupid?’” Ok, so maybe the witnesses didn’t say ‘I don’t know’ 35 times, but after five dismissals, it might as well have been 35. With today’s increased media-hype about corporate scandal and executive misconduct, jurors are becoming less and less tolerant of claimed ignorance. “Not one of the witnesses in the corporate line up seemed to know anything. No one would accept responsibility. Each tried to pass the buck onto someone else. Several witnesses painted a pretty clear picture of corporate arrogance and indifference.” The key take away is that witnesses need to do their homework, and if they really don’t know an answer to a question, they need to learn alternatives to the “I don’t know” mantra.
It really is too early in jury selection.
We know there is a persistent belief among some that you can win your case in voir dire. But we have yet to see that occur. Jurors simply do not have a context in which to plant the seeds. As one juror explained, “I could see that the lawyers were trying to set the stage, but it didn’t have any influence on me. I knew so little at that point, that I couldn’t put their questions into any sort of meaningful context.” Another added, “We had forgotten the lawyers’ questions by the time the openings started.”
A strong opening can set the stage, but it won’t carry the day.
If all openings were simply an introduction of the evidence to come, the parties would be in a tie after day one. But not all openings are created equal. The side that wins the battle of the frameworks – that is the side that tells the better story – enjoys an advantage out of the gates. In this particular case, jurors did not say they had made up their mind after opening. But they did recognize that the defendant would have an uphill battle – which is a testament to the strong framework created in the opening. The foreperson of the jury explained, “At the end of the day, the defendants had a pretty big hole to dig out of.” But don’t be confused – a powerful framework does not mean jurors have made up their minds. “Openings left me curious and wanting to know more, but I didn’t decide until I reached the jury room. You can’t know what you’re deciding until you have the questions in front of you,” one juror stated. Another explained, “There was a lot of smoke, but I wanted to hear the rest of the story.” Jurors truly need to hear all the evidence before they can be sure of their conclusions. “It was a game of back and forth throughout the whole trial, which really forced us to wait until we had everything to piece it all together.”
Expert Fees…who cares.
The days of shocking the jury with the other side’s expert fees truly are gone. Jurors expect highly paid experts on both sides and no one cares how much it costs. “We cared about the substance, not how much they were paid.” jurors told us. Focus your time on discrediting methodology and conclusions, not on credentials and fees.
Conclusion
This discussion confirms what other studies have suggested: American jurors are savvy, media trained observers of life, who appreciate a little theater, and who resent attempts at manipulation. And they’re watching you very closely.
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