As attorneys watch mock trial deliberations, their most common reaction is shock that the jurors have retained so much information from such short, intense presentations.
You are ready to try your case. You’d like to know how those 12 important individuals are going to react to what you have planned – before you give your opening statement – but an understanding of their viewpoint and their unique psychology seems elusive. Help is on the way: the insights gleaned from academic and mock trial research offer a one-way mirror into the psyche of jurors. Jury psychologists study juries in many different cases, in many different venues, and that allows us to draw general conclusions about how juries think and how they process information. The following description offers insights into who jurors are, why lawyers don’t intuitively understand jurors, common mindsets for jurors, the most common ways that jurors interpret case material, and how jurors make damage decisions. Importantly, acknowledging and comprehending how jurors really think can lead to better results at trial.
What Have We Learned?
Jury make-up. It is a mistake to underestimate the intelligence and cognitive abilities of jurors. Indeed, as attorneys watch mock trial deliberations, their most common reaction is shock that the jurors have retained so much information from such short, intense presentations. However, jurors are characterized by a number of limiting attributes that are built into the system: They are unlikely to have any information about, or experience with, the real issues in the case (anyone with a high level of expertise is often struck during jury selection, and for good reason – they might lead the panel); they typically lack legal training or background; and they are not necessarily highly educated or sophisticated in the ways of the world.
As a part of the selection process, particularly in some venues, certain groups are able to be released from service with hardship excuses, such as a dependence on income through commissions, or being full-time caregivers. As such, jurors are often those who are available for service, or who are unwilling to test the demand characteristic of “submissiveness” or conformity that pervades the courtroom. Nonetheless, we know that jurors who remain after selection work hard to understand the material that is presented to them, are focused on their service, and take their role very seriously. But, they are not to be fooled or easily led down a path – as human beings, they look for the human truth in what is happening in a case.
- Jurors’ mindsets. Jurors know that they are in the midst of an argument, a serious dispute that has ended up in court. They pick up from the atmosphere of the courtroom that formality is the “norm”; that is, no one is likely to start shouting or leave the room slamming a door. But, they know there is a “fight” going on, and somehow they ended up in the middle of it. They feel, as a part of this perspective, that they should take a step back, remain objective, and try to do what they do as parents: When one child comes running, it is clear that there is always more to the story than what the first child claims happened. They are suspicious about the motives of each party and are particularly sensitive to attempts to manipulate or woo them. Jurors truly want to do what is best, to listen to both sides’ stories, and they often would prefer to come up with a compromise. But, as a part of the pressure they feel to decide the outcome of a very serious matter, they often start to consciously or unconsciously “pick sides” from the beginning. In most cases, plaintiffs and defendants don’t start out with an even playing field.
- Jurors’ filters. Jurors feel that they have to make a decision, so they turn inward to their own experiences to evaluate the case. We know through our mock jury research over the years, that jurors view the facts of a case through their own cognitive or selective “filters.” Jurors’ life experiences influence their perceptions of the events and issues in your case. Indeed, we know that a juror tends to listen to and believe information that is consistent with his or her life experiences, and to discount information that does not match with that experience. Research shows that information that is consistent with one’s beliefs is processed quickly and remembered better than inconsistent information. Ambiguous information is perceived as consistent with those beliefs, and information that is inconsistent is scrutinized and more likely to be rejected. If a trial attorney is to be persuasive, he or she must be able to tell the case story in a way that allows it to penetrate the jurors’ cognitive filters. The theme(s) of the case must be consistent with the jurors’ view of the world. In addition, simple word choices can make the difference between communicating your message effectively and losing the jurors. For example, try substituting “after” for subsequently” or “I would ask you to consider” or “I would suggest” instead of “I submit to you.” The key is to communicate in a language that the juror will understand and that will fit with his or her life experiences.
- Lawyers’ mindsets. Lawyers often think they can think like jurors, and believe that the jurors will be able to focus on the evidence in the case more than, or without considering, their life experiences. However, the differences in life experiences between a lawyer and most jurors make it very difficult to think like a juror. Lawyers have a depth of training in the issues and are intimate with the details of a case in a way the juror can never be. And, importantly, law school changes the way that people think. There is a focus on the intellectual over the emotional (jurors are the opposite) and on analysis over a “gut reaction” (also a juror tendency). This focus on the intellectual/analytical, coupled with the training, knowledge, and in-depth information available to a lawyer is very difficult to set aside and presents its own filter that differentiates the lawyer’s impressions of the case from jurors’ impressions.
- Jurors’ trial “handcuffs.” Jurors have an extremely important role to fulfill in evaluating a dispute, yet they are obligated to function under very unique circumstances. First, as noted above, they are forced to be there, often against their will. Second, they are usually not told the rules of the game until the end. As a result, they listen to days or even weeks of evidence, while not knowing what decision they will need to render. Third, they know they aren’t being allowed to hear the whole story. Common courtroom practices, such as sidebars, objections, instructions to ignore evidence, and the absence of what jurors perceive as key bits of information all serve to teach the jurors that there is more to the story than they have been told. Fourth, they are not allowed to take notes in some venues (though Philadelphia has turned this around), which means that they have no ability to record information that is important to them in a contemporaneous format. Lastly, when jurors finally are given the rules, they are often incomprehensible! It would be preposterous to require people to make sound business, medical, or educational decisions under these conditions. As lawyers, your job is to work to keep jurors in the loop, to educate them as to the evidence and the law, and to help them to understand their task so that they can make reasoned and reasonable decisions.
- Jurors’ need for a story. The unique perspective from which jurors will view your case demands that you provide them with an understandable framework to organize the evidence that they will hear. The most common framework utilized by jurors, and by most people in the world hearing new information, is a story. You can provide structure by the use of clear and concise themes that outline your story. The themes should give the jurors understandable language and familiar concepts. Themes are not basic timelines or chronologies, though these structures are infinitely helpful to jurors in understanding the events in the case. Themes are the means by which jurors will determine the facts and assess the motivations of the characters in the story – the way that they will decide “what really happened.”
Jurors are very concerned about the motives of the players in a lawsuit. They want to see that the motives are consistent with the story. If jurors aren’t told why people did the things they did, the jurors will come up with their own theories. You must address their need to attribute motives to other people’s actions, or jurors may create motives. Jurors will evaluate the evidence and will fit the evidence into the story – not the other way around. By using themes to provide a framework for the evidence, you show the jurors how the evidence should be interpreted and the way in which it makes the most sense.
- How fact witnesses are judged. Jurors will be judging the credibility of all of the players in the courtroom. For the lawyer, this means serving as an advocate and a teacher while doing both in a professional manner. Fact witnesses must present a calm and confident demeanor both verbally and nonverbally. An effective witness appears relaxed and cooperative, while answering questions without hesitation, in a strong and confident voice. An effective witness uses powerful language that shows that he or she is taking control of the testimony and believes what he/she is saying. An effective witness does not vary his or her demeanor from direct to cross, but appears to be equally responsive to both attorneys. While focusing on answering the questions, he/she remembers to focus on the themes of the case; while acknowledging what is a potential flaw in the case, he/she admits what is true and strongly denies what is untrue. A witness may have a great story to tell, but if it cannot be communicated in a credible fashion, the jurors will never believe it.
- How experts are judged. Attorneys frequently rely on their experts’ testimonies to make their case. However, this emphasis on expert testimony is another example of how attorneys miss what jurors find important. While some jurors are interested in and attempt to understand complex testimony, many jurors tell us that the experts often “cancel each other out.” There are ways to select better, more jury-centric experts, but you need to think like a juror. Jurors tell us that what they value about an expert is different from what the attorney values. In one case, jurors preferred a geology expert who only had a master’s degree from a local university and who had taught high school science over a witness who was Harvard educated and who had been in business with a geological exploration company for many years. While this is a simplistic example, the generalizations can be made that jurors focus on experience, while attorneys focus on credentials; jurors tend to focus on the ability of the witness to teach them about the material, while attorneys focus on how well an expert handles cross-examination questions. Attorneys need to recognize that jurors want and need excellent communication skills and appropriate-level explanations and vocabulary, or they will get lost in the jargon and technology offered by most experts. Expert witnesses, from the jurors’ perspective, must not be advocates, but rather they should be objective teachers who offer to educate the jurors and who walk the fine line between being too simplistic and being too high-level.
- Damages viewpoints. Jurors struggle with damages, particularly in cases in which offering money will not bring someone back to life, or give the plaintiff back his lost arm, etc. Much is talked about with regard to how irrational jurors are in their assignment of damages, and certainly there are shocking awards that are showcased in the media that don’t make sense outside the trial context – and may not even make sense within that context. However, in many cases given what jurors are provided at trial, and the ways that people usually make decisions about money, their awards are not that surprising.
The three most common methods of calculating damages are: 1) averaging; 2) using an anchor figure (a number suggested by the plaintiff and sometimes the defendant); or 3) coming up with a compromise figure. Entire texts have been written about how jurors calculate damages, but in short, these methods make the most sense to a group of jurors who have differing opinions about the right amount of damages.
- For example, in the averaging method, jurors usually poll each other, and someone offers to use a calculator to average the awards (this is often despite instructions not to do so). This seems a reasonable approach to them, since they are in “foreign territory,” and making sense of expert reports and conflicting testimony, or worse yet, in the “vacuum” of having no figure (as is the case for pain and suffering in many states), is far more overwhelming.
- In the same vein, using a number, typically referred to as a psychological anchor, assists jurors in making a decision about damage awards. In the absence of an alternate psychological anchor provided by the defense, the number calculated by one of the parties carries significant weight.
- Of course, jurors offered two different anchors often compromise and find a mean or midpoint to award. Jurors also consider derivations of each party’s number, by adding or subtracting amounts that were more or less credible.
Knowing these potential models for calculating damages allows attorneys to make decisions about how to present damages to the jurors.
- Visual tools. We live in a visual world where people are used to obtaining information via television and other forms of media. Some people are more visual than others are, but for all jurors, visual aids are an important tool to use to make sure your message is being communicated effectively. Our research suggests that carefully chosen and designed demonstrative exhibits aren’t seen as “too slick,” but rather they are viewed by jurors as helpful ways to summarize the evidence and communicate complex concepts. Jurors are no longer impressed with computer animations and graphics shown on television; they have access to Internet Web sites and computer games with more complexity.
However, it is clear that jurors benefit most when visual tools are used to reinforce the themes of the case, and mixed media (combinations of boards, electronic images, animations, etc.) are used to vary the format and increase attention and retention. One caution is in order: given jurors’ suspicions about being in the middle of an argument, they tend to believe that each side wants to hide information. Always show the document in its entirety, then the highlighted portion of the document, and tell the jury you will make the entire document available if they want to examine it. In complex cases, visuals make it possible to convey information that would be difficult, at best, to convey orally.
- Impressions of the Judge. Jurors respect the Judge and his/her role in running “the show.” However, sometimes this respect can be problematic. Jurors believe (rightly or wrongly) that the Judge knows more about the case than they do, and they pay attention to the Judge’s reactions to the events that transpire in the courtroom. If the Judge is irritated with counsel or a witness, this will not be lost on the jury. Jurors make inferences from even a slight inflection in a Judge’s voice. They make every effort to follow the Judge’s word, and they look to him or her for guidance. Jurors tend to believe that the Judge is not biased, despite sometimes obvious behaviors to the contrary, and as such, the Judge receives even greater respect from the jurors. However, there is one important exception that jurors refuse to accept from the Judge.
Jurors can’t follow judicial instruction to ignore evidence or testimony. It’s not humanly possible. In order to heed this instruction, jurors need to think about the evidence to see if they are ignoring it. The very act of asking the jurors to ignore something is causing the jurors to think about it! Thus, judicial instructions to disregard evidence or testimony can be worse than useless: they can be counterproductive.
Conclusion: The Jury System Works
The jury system is always under attack. However, the public’s perception of important so-called frivolous cases fails to take key trial factors into account. In Lectures on Legal Topics (1926), that “I am by no means enamored of jury trials…but it is certainly inconsistent to trust them so reverently as we do, and still to surround them with restrictions which, if they have any rational validity whatever, depend upon distrust.” Jurors work within the system, and their psychology is based, in part, on the psychology of human beings, but it is also influenced by the learning environment of the trial. By acknowledging the cognitive mechanisms that will be engaged in the trial environment, by recognizing the need to account for and adapt to the psychology of jurors, and by requesting changes in the system that will allow jurors to have more and better information on which to make their decisions, attorneys can influence the outcomes of their cases and the future of jury trials. And, most importantly, knowing how jurors really think will help the trial attorney to deliver his or her message more effectively and win.