The lawyer world vs. the jury world

Richard Gabriel, The Daily Record Newswire

Lawyers usually hate jury selection. Not only does voir dire provide limited time and information to identify jurors who will decide the fate of their clients, but it directly confronts attorneys with a problem they have in communicating complex cases to today’s demanding and skeptical juror: that jurors and attorneys think and communicate in completely different ways.

Jury trials have been diminishing in recent years, making it more difficult for attorneys to practice their trial skills. Also, lawyers spend months, if not years, in the minutiae of their cases, becoming versed in the baroque technical and legal vernacular of patents, engineering or medical terminology. Finally, in law school, attorneys are trained away from communicating simply and clearly, and are instead taught to view the world through a legal lens.

Laurie Levenson, a professor at Loyola Law School in Los Angeles, describes the problem this way: “Law students are taught a whole new vocabulary in law school. Words like ‘reckless,’ ‘negligent’ and ‘malice’ are redefined for them. They also spend a lot of time reading appellate decisions with complicated legal language. Law students also want to use big words to sound like the lawyers they sometimes see on television. They end up developing one language they use to communicate with their colleagues, experts, judges and opposing counsel and an entirely different language with the jury.”

As attorneys move into litigation practice, they also learn that there are systemic challenges in communicating clearly with a jury at trial.

Here are some of the problems that prevent attorneys and from communicating more effectively with jurors. Simply being aware of these problems can help lawyers refocus on clear jury communication:

Too much information
Attorneys are trained to focus on the facts and to be overly inclusive in discovery and in presenting evidence at trial. That focus increases the complex and foreign data that a jury has to consider. This data dump, coupled with a juror’s lack of familiarity with a subject, increases what social psychologists call “cognitive load.” The juror’s brain fills up with competing damages evaluations, regulatory language and policy interpretations, and cannot absorb more information. Ironically, the more evidence we try to load into a trial, the less jurors rely on that evidence and the more they rely on their own personal experience and beliefs. And while developing a comprehensive legal record is important, it is more critical to be mindful of the load you will be asking a juror to bear and how it will affect his or her decision-making process.

Lack of a story
Attorneys are more trained in fact gathering and legal research than story construction. However, jurors make sense of facts and law by constructing stories of the evidence. As jurors piece together a case, they put together a narrative structure of “what happened.” As most trial schedules are dictated by a court’s erratic calendar or witness availability, jurors have difficulty maintaining a cohesive story structure as witnesses are taken out of order or are interrupted by objections and sidebars.

Lack of emotion
Attorneys are trained that emotional issues in a case are irrelevant and prejudicial unless they directly relate to emotional distress or pain and suffering or otherwise affect the victim. We artificially distinguish emotions from facts when they are, in truth, inseparable. Biologically, we are programmed to have sensory/emotional reactions to all information that we then rationalize and justify. To ignore the underlying emotions and values in a case is to ignore the motor that drives most juror decisions.

Too-focused questions

Attorneys are trained to ask tightly focused questions in order to get controlled responses from witnesses. However, in voir dire, the best way to recognize bias is to ask vague and ambiguous questions. In an employment case, for example, the question “Generally, how do you feel employers treat employees?” encourages a juror to access his or her first impressions from the general topic and talk about opinions and experiences in his or her own words. An undirected first impression such as this one tells you where a juror is likely to go first when he or she hears about the issues in case.

Prior experiences
Attorneys are essentially asking jurors to perform cognitive gymnastics when they ask if they can “set aside” any prior experiences or opinions about the parties or issues in a case. Psychologically, that is impossible. Let’s say a juror has had a prior bad experience with a doctor and is sitting on a medical-malpractice case. A juror can try to compensate for that prior experience by considering whether his or her impressions at trial are based on the evidence or past experience, but that effort already affects the way the juror views evidence, making him or her no longer “impartial.”

Lack of context
Jurors desire background history about the parties, companies and organizations in order to understand their motivations and to establish the “norms” or standards of conduct for the case. But sometimes judges exclude such context as irrelevant or prejudicial and sometimes attorneys exclude it on their own. They do so at their own peril. When context isn’t provided, jurors will simply supplant their own history based on personal experience or things they see on television or the Internet.

Either-or approach
Attorneys are trained in a Socratic method of issue analysis and an advocacy model based on forensic debate. In the traditional advocacy model, both sides presuppose they will prevail on the issue, refusing to admit any weakness or vulnerability. While judges decide in favor of one side all the time, a more accurate decision-making model involves jurors negotiating a combined reality where they spread the blame among multiple parties for any harm that has befallen a party in a case. Simply put, most jurors think that a party would not be in court unless they had done at least something wrong.  Understanding how the jury will create a combined reality of “what happened” allows an attorney to better position his or her case.

Passivity
Overall, the way trials are structured ignores the way jurors prefer to evaluate information. Trial courts emphasize talking versus showing and listening versus participating. While jurors are used to getting most of their information from computers and television, which they can control, they struggle to listen passively for hours a day to attorneys, witnesses and judges who talk at them.

Backwards information

Jurors are not given jury instructions until the end of a case, after they have already formed impressions about the evidence. As such, they don’t really know what they are supposed to be looking for. Sure, they are given general instructions about listening to evidence, taking notes and judging witness credibility, but usually they are not told that their job in listening to the evidence, taking notes and judging witness credibility will be to judge whether a defendant was negligent and whether that negligence was a cause of the plaintiff’s injuries or whether the plaintiff or other parties were responsible for their own injuries.
Professor Harry Caldwell of Pepperdine Law School, who has written books on trial advocacy and great closing arguments, discusses what he sees excellent lawyers do to overcome communication challenges: “Most lawyers argue upside down – they give their opinion and then back it up with the evidence. This creates an intellectual gap that causes resistance in jurors, which is a killer in trial. Effective attorneys create questions and a horizontal dialogue where the juror feels they are on the team with the lawyer answering those questions. This allows good lawyers to get beyond the law and into the lives of the parties in a case: their underlying motivations, their loves and hates. It allows them to talk to a jury like a friend they are meeting for coffee.”

We often become so well-versed in the tongue of our own country — the land of motions and matters, statutes and substance, practice and procedures — that we sometimes forget to speak the language of jurors, which requires communicating with clarity, conciseness and meaning.

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Richard Gabriel is president of Decision Analysis, a trial consulting company with offices in Los Angeles and Chicago. He is co-author of “Jury Selection: Strategy & Science” published by Thomson-West.

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