“Jurors have already made up their mind after opening statements.”
All trial lawyers are familiar with this popular myth. And in the middle of a trial—especially an expensive, high-stakes one—it can be rather disheartening to think the jurors have already made their decision. But there are certain strategies and techniques that can ensure you have the jurors’ full attention and engage them throughout the process.
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In order to capture someone’s attention in a lasting way, you must consider their motivations. After a trial, jurors want to be able to go back into the community and say they voted for a verdict that will make everyone safer. They are simply waiting for someone to lead them to a mental place where they can accept a meaningful verdict.
When it comes to trust, we as lawyers have an uphill battle. In a national survey, over half of respondents thought the plaintiff’s lawyer had lied during trial, and 74 percent of respondents thought the defense attorney had lied. Only 27 percent of respondents agreed in any part with the sentence “Most lawyers would never lie to a jury.”
When you first talk about the plaintiff, the jurors will have a number of scrutinizing thoughts, including:
- Is she only here for the money?
- Does she really want to get better?
- Is she really experiencing the symptoms she complains of?
- What kind of person is she?
Jurors, like the majority of the country, are suspicious of both sides. They will step back and listen to hear who is talking within the norm and whose views make more sense to them.
Establishing credibility and trust with jurors requires answering four questions for them:
- Who are you?
- Why are you here?
- What’s in it for me if I listen to you and give you my vote?
- What’s in it for you if I listen to you and give you my vote?
In our demand-driven world, jurors want to know what’s in it for them. Why should they lean one way or the other? Who is leading them one way or another? What are their motivations for doing so? In order to be effective trial lawyers, we have to understand jurors on a deeper level and earn their trust.
The Courtroom as a Moral Arena
More than half (60 percent, to be exact) of Americans view a trial as a moral arena in which it is more important to do the “right” thing than the “legally correct” thing. As such, you have to assume that most jurors will seek to do the right thing before they seek to follow the exact letter of the law.
When you think of the courtroom as a moral arena, credibility becomes crucially important. As the jurors’ guide, you become the most important witness in the trial—and they must believe your words are the truth. You and the plaintiff both must work on the manner and method of your presentation to ensure you are putting your best—and most credible—foot forward. If the jurors start to doubt what you say or start to think the plaintiff is only here for the money, you will be fighting a losing battle.
Never forget that credibility goes beyond the courtroom. The credibility battle increasingly takes place online, in places like:
- Your website, your client’s website, and your expert witnesses’ website
- Your social media channels, your client’s social media channels, and your expert witnesses’ social media channels
Using Schemas and Frames To Your Advantage
Jurors make decisions based on information they are familiar with. In order to understand data, we store, catalog, and relate information as it comes in. We use “schemas” to give meaning to incoming information by providing a pre-existing frame of reference within which to interpret it. Therefore, information that is consistent with our beliefs is processed more quickly and remembered more accurately. Information that does not line up with our beliefs takes longer to process and does not stick nearly as well.
Jurors deliberate around themes, another type of “mental organizer” that helps us recall facts. Based on the theme they have accepted, jurors will look for the evidence that fits this theme (and often disregard evidence that does not fit this theme). Understanding this will allow you to frame your case in a way that outlines an acceptable theme.
Framing your case in the correct way is arguably the most important part of any trial. Jurors respond to certain values, such as following the rules, preserving public safety, and working hard. Framing your case within one of these values can help bolster your argument. For example, try to frame your case as a simple matter of following the rules (which, of course, the defendant did not do). Focus on that in your communication with the jurors: Why is there a rule? Why is having rules important? How does this rule keep us safe? How does breaking this rule hurt people? This allows you to speak to the true motivation of the defendant; why did they break the rule? Were they trying to save time? To get ahead? To save money? If this reason is not sufficient, the jurors will be more likely to side with your client.
In order to frame your case correctly, try to answer the following questions:
- Who is the protagonist?
- Who is the antagonist?
- How was the problem created?
- Why did the problem happen?
- Why must that problem be solved?
- How do we solve that problem?
- Why will this solution help us?
And as with any good story, it needs good scenery. Go out and capture the story with video, photographs, records, statutes, rules, regulations, witnesses, and electronic evidence. This will improve your credibility, as well as give the jurors some much-appreciated variation in storytelling.
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The Land Mine Analysis
It only takes one moment to destroy months and months of hard work. One misstep, one wrong word, and the entire case could be ruined. It is crucial to identify potential problem spots before you ever step foot in the courtroom.
The “Land Mine Analysis” is a useful tool that can help you pinpoint problem areas. Start by listing 20 points that, if any one of them is believed, would cause the case to crash and burn. Then “defuse” each mine by preparing rebuttal facts and points.
Another way to accomplish this goal is to create a balance sheet for your case. Put all of the negatives of your case on one side and put all the positives of your case on the other. Arrange them so that certain positives answer their associated negatives. Then, figure out how to restructure the remaining negatives so that they become a positive (or at least become a less-potent negative).