By Dr. Ken Broda Bahm:
It is Halloween time again, and everyone who is a kid or young enough to party like a kid, is preparing their temporary identity for the night: a pirate, a witch, a vampire. This year, apparently, the trending looks are less traditional, including “Angry Birds” and costumes for this year’s angriest bird of all, Big Bird, are flying off the shelves. Of course, the idea of temporary identity, of being something else for a short period of time, isn’t limited to October 31st. It is something that sets the stage for human communication in every context. In different situations, we adopt different personas. There is overlap, of course, but when you think about it, there are probably some pretty clear distinctions between the “work-you,” “friends-you,” and “family-you.”
There is also a “juror-you.” That is, there are differences between the identity a juror assumes during trial and the identities that person may hold in any of their other life contexts. While we might think of attitudes and personalities as something fixed and immutable — something that a person “has” — it is more accurate to see them as highly changeable and sensitive to the situation — something that a person “does,” and does differently in different contexts. We’ve raised the issue previously of jurors being in different “decisional mindsets” at different stages in the trial. In this post, I’d like to take that point a little further and discuss ways to get jurors into a preferred role or identity during trial. I’ll be choosing two early moments in trial, voir dire and opening statement, where a juror’s understanding of her role can be critical, and providing suggested language on ways to encourage and adapt to a juror’s temporary identity at that stage.
Identity Matters
I got to thinking about the importance of a juror’s temporary identify after reading a recent piece by Maggie Koerth-Baker in The New York Times Magazine. In that essay, “The Mind of a Flip-Flopper,” she explores the idea of changing minds, initially in the political “Romney-Obama” sense of revising political positions, but then ranges into a diverse body of research on how we decide and redecide. Much of it, she writes, has to do with flexibility in identities: “Our identities, of course, are also stories we tell ourselves about ourselves. In some cases — if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping.” Drawing a parallel to juries, she also draws from research on an unusual setting for deliberation known as the Oregon Citizens Initiative Review. As part of the state’s “Healthy Democracy” program, Oregon addresses popular ballot initiatives by pulling together “a panel of randomly-selected and demographically-balanced voters,” who then hear from the campaigns for and against the measure prior to drafting a “Citizen’s Statement” that is published in the voters’ guide: a kind of mini-verdict from an unbiased group that has looked closely at the measure.
If that sounds a little like a jury, it is meant to. Like a jury, it can sometimes lead to decisions one wouldn’t expect from looking at popular attitudes alone. Koerth-Baker quotes Penn State professor John Gastil who shared the example of Oregon Measure 73 focusing on mandatory sentencing. To those who gave it only a little thought — the majority of the population — the idea of strict and fixed criminal sentences held widespread appeal. To the panel, though, the negative consequences far outweighed the positives and the panel voted 21 to 3 to oppose it. According to Gastil, that finding played an important role: “You got a shift from two-thirds in favor to two-thirds against just by reading the report.”
The point is that a working group can end up assuming an identity where “facts suddenly matter.” A jury is such a group. Rather than simply importing and applying the baseline attitudes they brought in the courthouse door, those individuals who are selected become “jurors” and that role can mark them internally as surely as the sticky badge marks them externally. The trick for litigators is to adapt to and cultivate the best aspects of that special identity as you prepare and present your case.
Create and Speak to a Preferred Juror Identity…
Addressing the juror in their appropriate role matters in all phases of trial, but let me speak more specifically to two of the early stages.
During Voir Dire
During voir dire, especially attorney-conducted oral voir dire, attorneys have an early opportunity to put a frame around the venire members and help them see their activity and their statements in an appropriate light. That role is not to be “auditioning” for a part, and it is neither to be in a contest with the court or counsel. Rather, the identity you most want panelists to embrace is the identity of one who is openly and honestly sharing views in a context that makes those views critically important.
It is also not, at least from a juror’s perspective, about admitting to something called “bias.” By that name, bias is a bad thing that no panelist is comfortable admitting. Instead, voir dire is about the kinds of knowledge, attitudes and experiences that everyone has.
Here is one example of how counsel might appeal to a juror’s temporary identity in voir dire:
My part in this process requires that I ask you some questions about your experiences and your views on several issues. It isn’t my goal to single you out or to embarrass you, but our jury trial system is based on the idea that cases need to be decided by people who have no strong attitudes at the start of the case that would influence how they understand and use the evidence. We all go through life forming opinions based on our experiences.That is normal. But it means that not every juror is right for every case. For example, I live in Denver and I’m a big football fan, and a big John Elway fan. So I wouldn’t be the right kind of juror for a case against the Denver Broncos. There isn’t anything wrong with that, it just wouldn’t be the case for me.
By framing the questions in that fashion, you can help a potential juror understand that admitting to a strongly-held attitude doesn’t mean failing some kind of test, but instead means helping a worthwhile process.
During Opening Statement
After jury selection, the next opportunity to encourage jurors to embrace a particular identity is opening statement. That is typically the time when attorneys talk about how grateful they and their clients are that the jurors are sacrificing their time, how important jury service is, and how it is second only to military service in the good it does the country. That can be an important message, but the lesson for counsel is that a little goes a long way, and it is often a message that sounds best coming from a judge. Too much from an attorney, and it sounds like flattery and ingratiation.
The better message is to reinforce and empower jurors’ identity. Tell them what they are there for. At the stage of opening statement, they are there to hear what the story is about. But they don’t want to be in the passive role of an audience, or just consumers of information. And they also aren’t there to be a judge of which attorney has the better persuasive skills. Instead, the opening is an ideal time to tell jurors that they are there in order to be active, to be investigators of the facts, to try and find answers. One way to introduce that role might be as follows:
As both sides begin this case, we are given the opportunity to speak to you directly. That is an opportunity we won’t have while we are presenting the evidence. In fact, we won’t have it again until closing argument. We aren’t given this opportunity to provide an opening statement so that we can argue to you. We aren’t given it so that we can tell you a story. And we aren’t given it so that we can show off our persuasive skills. No, we are given this precious opportunity in order to help you in your role. To assist you in working with the testimony you are about to hear, to help you to be investigators. Because that is what you are. Not passive listeners, not critics, but active determiners of what is and is not factual in this case. To help you in that investigation, I want to share what I expect the evidence to show in this case.
That message can precede an opening that is strong, and an opening that does indeed tell a story while staying on the right side of the “argumentativeness” line. The most important theme is that the jury is in control: They’re the ones reaching their own conclusions based on the evidence and facts, the arguments, and their own process.
Rather than being a mask or anything false, this temporary identity we are asking jurors to assume is something that helps your case as long as you take care in shaping it and in strategically appealing to it. If jurors see the verdict as their own unique product, they are empowered. If they see trial as merely a persuasive contest between two sides, however, they can easily see it as all trick and no treat.
______
Other Posts on Mindset and Persuasion:
- Play It Where It Lies: Throughout Trial, Match the Message to the Mindset
- Avoid Condescension and Other Sins of Legal Argument: Know Your ‘Second Persona’
- Leverage the Persuasive Advantages of Beating Expectations
______
Photo Credit: Mags20_eb, Flickr Creative Commons