The Advantage Blog
Values and Principles Drive Verdicts as Much as Evidence or the LawDecember 17, 2012 | | Case Strategy, Opening & Closing
Most jurors enter a trial with very little expertise on the particular topic at issue. They are unfamiliar with legal concepts like “burden of proof” or “standard of care,” or “proximate cause.” However, all jurors have a sense of what is important to them – the things they value. When it is time to deliberate and render a verdict in a case, these values play a pivotal role in determining what they discuss, how they discuss it, and ultimately how they vote. Therefore, it is critical that attorneys go beyond consideration of the evidence and identify and appeal to the values likely to converge with those held by the jury.
Values define preferred ways of acting or preferred end-states. The use of values in “public argument” settings is both highly prevalent and especially effective. Public or “general” argumentation is distinct from specialized argumentation because it “does not require special knowledge or rules for the participants.”[i] Instead, it is argument that is directed toward typical members of the public who are not well-versed on the standards of a specific field.
Arguments made to a jury are more consistent with those in a “public” argument setting. Although jurors are instructed on the law and are expected to follow these instructions when making a decision, it is unlikely that the brief directions they are given are enough to make jurors legal experts. Arguments made in a summary judgment motion before a judge would be considered more “specialized,” while arguments made in trial to non-expert jurors are “general.”
Successful public arguments “must conform to what most people in the society regard as factual, reasonable, and linked to acceptable social values.”[ii] Audience members are attracted to appeals that bolster their beliefs. These underlying beliefs provide an efficient route for judgment if other routes seem more difficult. When an audience is confused or unable to understand the complexities of specialized argument, jurors will default to standards they can easily grasp, like using the values they hold as a way of judging whose actions were appropriate.
There are multiple ways to use values when presenting a case and it is not difficult to weave them into a case narrative. The simplest way to use value appeals is as the basis for a particular goal that was being pursued by an individual or organization. Jurors typically want to know why someone engaged in a particular behavior. They do not just want to know what was done, but they want to know why someone made the choices they did. Jurors want to understand what is “behind” the action. For example, consider the issue of “caring” in a medical malpractice suit. Jurors can forgive mistakes in medical care, because even doctors and nurses are human. But, they will not forgive a lack of medical caring. So, the best plaintiff medical malpractice narratives are those that focus on the lack of care, concern, compassion of the medical professional. Ultimately, it is not just about what they did, but their perceived attitude towards the patient.
But it is not enough to claim a value and link it to a party or an actor, because the value appeal in the narrative need to be consistent with an audience’s general expectations of that party or actor. Suppose a large public company engaged in internal critical analysis of discrimination and the data revealed discrimination occurred. The defendant would need to frame the results in as positive a way as possible in a defense. But, to just appeal to a value and claim it has engaged in an effort to minimize discrimination because it is just the “right thing to do”, would likely result in jurors rejecting the position. The espoused value is inconsistent with the jurors’ views of the controlling motive of the company. Businesses are not driven by altruism, they are driven by profit. However, if the company argues that it tried to minimize discrimination in order to enhance the competitiveness and profitability of the company, jurors are more likely to accept that the business is telling the truth since the value of “making money” is consistent with what is expected from a public company.
Value appeals can be developed by thinking about the form of the argument you are presenting. For example, some value appeals operate as part of an argument by “dissociation”. Dissociation occurs when a speaker separates two concepts that were previously linked. Frequently, dissociations separate “appearance” from “reality” in a given situation. For example, many people oppose the concept of a company spying on a private citizen. But if the business shows that in reality the surveillance is an effort to assess a person’s honesty, it may be viewed as acceptable since we strongly value honesty. The negative appearance of the purpose of the action is false (spying) and should be separated from a more highly valued reality (assessing honesty). The value appeal helps create the positive image for the “reality” portion of the dissociation.
Value appeals can also operate as part of a “person/act” argument. A person/act argument works on the premise that people who embody positive values are more likely to act in positive ways, so by showing a jury that a person stands for admired values like justice or honesty, the jury is more likely to believe that he or she behaved in a manner worth supporting. The values, positive attributes, and the ethos of the character in the trial are supported through the presentation of patterns of behavior. If the patterns of behavior are inconsistent with the alleged claim (i.e. “out of character”) than it is much less likely a jury will be inclined accept the allegation.
Remember that the jury is situated in a conflict between multiple parties, and they are being asked to render a just verdict. They are being asked to do what is right. A simple but powerful exercise is to assess the quality and quantity of positive values shared between your client and the jury and the quality and quantity of the negative values that can prevent a jury from developing a positive identification with the opposing party.
Jurors learn a lot during a trial about specific subjects, but ultimately they must rely on their personal value framework to help them decide which side in a dispute should be supported. Creatively tapping into this dimension of rhetoric, argument and language can help ensure that jurors view your client’s acting in a manner consistent with the core values they use to direct their own lives.
[i] Malcolm Sillars, “Audiences, Social Values, and the Analysis of Argument, The Speech Teacher 22 (1973): 295.
[ii] Richard Rieke and Malcolm Sillars, Argumentation and the Decision-Making Process (Glenview, IL: Scott-Foresman, 1975).
Glenn Kuper, Ph.D., is a consultant with Tsongas Litigation Consulting, Inc. He received his doctorate in speech communication from the University of Washington and is a former assistant professor of communication at the University of Puget Sound and executive speechwriter for Governors Locke and Gregoire. He can be reached at email@example.com.
Theodore Prosise, PhD., is vice president and a senior consultant at Tsongas Litigation Consulting, Inc. He received his doctorate in communication from the Annenberg School of Communication at the University of Southern California and is a former assistant professor of communication at the University of Washington. He can be reached at firstname.lastname@example.org.
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