By Dr. Ken Broda-Bahm:
Sheep tend to placidly eat what's in front of them. Wolves, on the other hand, hunt. Now, with that distinction in mind, think about how we now typically gather information. There may have once been a time when the average American came home from work, turned on the television, and just soaked in the news as placidly as a sheep. Now, on the other hand, we hunt our information like a wolf. In addition to being able to target our news from a dizzying array of television channels, including some that are tailored to our ideological preferences, we also rely on the internet to Google-up news stories that precisely fit the focus and the facts that we're looking for. And when we find it, we don't simply read it. Instead, we comment on it, we tweet about it, and we argue on Facebook. Even those of us who are old enough probably have difficulty remembering a time when we just received our news instead of engaging with it.
Yet despite being information wolves in our daily lives, we expect jurors to be information sheep during trial and simply process what they're given. We see the resulting strain in the frequent stories of jurors doing their own electronic research. Often, commentators attribute that to the prevalence and availability of technology, but there is something broader at work: Jurors want to hunt. According to a recent study (Hannaford-Agor, Rottman & Waters, 2012), it is that desire that causes most jurors to want to research information about their case on the internet. Most avoid the temptation, but the desire itself is something that advocates should account for in the way they present their cases. This post includes advice, not for keeping jurors off the internet (see other posts for that), but for appealing to the information wolf that lies at the heart of today's juror.
The Desire to Hunt: Research on Motives for Juror Online Communication
The mass media and legal press are replete with stories of jurors using electronic tools and social media to find out more about the case than the judge lets in the courtroom door. But few investigations have systematically focused on the juror beliefs and attitudes driving those stories. One such investigation was recently sponsored by the National Center for State Courts. They surveyed jurors from 15 trials and found that jurors generally understood the court's instructions prohibiting their own online research, and no jurors succumbed to the temptation to use the internet to supplement their case understanding. However, a substantial number wished they could have conducted some sort of research on the cases they heard prior to deliberation. So there is a preference on the part of jurors to not just receive information but to seek it out, and that should influence how we talk to jurors. While we obviously can't just allow jurors to do their own work, we can acknowledge that desire in instructions. And we can also adapt to that need by tailoring our persuasive appeals. I think there is a three-step process having to do with the way we frame and address the jury's questions.
Step One: Discover Questions
One direct path to finding out what jurors will want to investigate is to discover the questions that will naturally occur to them. For example, when we're conducting a focus group early in the case, we'll provide a brief statement of the case and then immediately ask, not for a leaning or a verdict, but "What else would you want to know?" The answers to that question can help to structure your remaining discovery and can also serve as building blocks for your message. Instead of just hammering jurors with your message, you can make sure you are answering their questions, and that is key to your fact finders' ability to reach a decision they can be comfortable with.
Step Two: Ask Questions
Obviously, questions play an important role in presentation of evidence, and as much as possible, these direct and cross questions should serve as a "voice of the jury" in representing what fact finders would want to know. But questions can also take center stage in opening statement and closing argument. Move through your opening story, and nail down your closing argument by posing questions and pointing the way toward answers. As a structuring device, transition, or heading, a question is almost always going to be more engaging and more effective than a topic.
That means this is less effective:
Now, let's take a look at what was happening and what the parties were thinking at the time they entered the contract.
and this is more effective:
That leads to this question: What did the parties both intend to have happen as a result of this contract?
The question format invites a more motivated audience. If jurors know what questions they're trying to answer, they'll know what information they're looking for in order to answer them. While you won't always know the specifics of the verdict form at the start of trial, you will usually know the general questions jurors will need to answer in order to reach a decision, especially if you've followed step one.
Step Three: Allow Questions
When you have the opportunity, let jurors pose questions to the witnesses. While there are both pros and cons to juror questions, from an advocate's perspective, the bottom line should be simple: Would you rather know or not know that a juror has a question? Of course, it is better to know. When the judge allows the question to be asked and answered, that can reduce the jurors' incentive to risk a mistrial by looking something up on their own. And even when the question isn't allowed, it is still good to know what they're thinking because you can often address the motive behind the question, if not the question itself, through a future witness or via argument. The other benefit is within the mind of the juror: The mere ability to ask questions makes the juror more of a participant than a passive audience, more of a wolf than a sheep. Even when they don't end up asking many questions - a sign that you're doing your job and answering those questions first - the difference in mindset is still important.
Putting predictability above all else, some lawyers will still like jurors who, like sheep, just accept what they're given. But ultimately, the best lawyers should say, "Who's afraid of an information wolf?" The greater the role played by jurors' literal or figurative questions, the more you are providing an interaction and not just a presentation. Just as in the case of judicial persuasion, the best persuaders want an active and engaged audience, because that creates the opportunity to effectively persuade through dialogue and not just monologue.
Other Posts on Juror's Process:
- What the Heck Are They Doing In There?? Understanding Jurors Deliberating
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- Determine Whether Your Jurors Are Driven by Process or by Verdict
Hannaford-Agor, P.,, Rottman, D. B.,, & Waters, N. L. (2012). Juror and Jury Use of New Media: A Baseline Exploration Executive Session for State Court Leaders in the 21st Century (Papers), National Center for State Courts
Photo Credit: Luisar, Flickr Creative Commons