By Dr. Ken Broda Bahm:
Think assessments during trial are focused narrowly on the evidence and the instructions? Think again: Jurors base case evaluations on a broader spectrum that includes reactions to the parties, their preparation, and the overall process. Litigators with much in the way of trial experience probably already know that. But a survey conducted by a retired Minnesota trial judge and covered in a recent Lawyerist article, raises the intriguing possibility that this broad-spectrum assessment applies more to defendants than to plaintiffs. The research, originally published in Bench & Bar of Minnesota, is based on data collected from the judge’s own practice of administering surveys at the conclusion of every one of his jury trials. Pulling together data from ten years of these post-trial surveys — 109 trials in all — the article reports on their attitudes about attorney presentation and preparation.
The article is entitled “What Jurors Think About Attorneys” and it confirms much of what that title would suggest. But it also provides some very useful general reminders about the importance of factors that extend beyond the evidence, while also highlighting one very intriguing finding: a difference in how the respective sides are evaluated in trial. The judge’s sample includes primarily criminal cases, but some civil cases as well, and groups prosecutors and civil plaintiffs together and compares their analysis to that of both civil and criminal defendants. This post takes a look at the data and what it says about how attorneys are practically evaluated by jurors.
The article offers both some general conclusions, as well as one interesting twist.
The General Findings: Give Jurors What They Want
These are the conclusions that emerge from the survey:
- Jurors love getting the instructions in writing, as well as verbally.
- Jurors see the judge as a guide, teacher, and protector.
- When jurors side with a party, they also see that party as being more competent and sincere.
- Jurors also see the winning party as more prepared and as the better presenter.
- Jurors generally rate all attorneys as close to excellent, with most rated between 1 and 2 on a scale where 1 is “excellent” and 5 is “very poor.”
- Jurors care about attorneys’ ability to communicate in a “clear,” “articulate,” and “strong” manner.
- Jurors like simple and clear points, but hate repetition and belaboring.
- Jurors like eye contact and strong visuals.
- Jurors want witnesses to be treated well by the attorneys.
- Jurors can be distracted by gaps and often end the trial wanting more evidence.
- Defense attorneys seem to be at a significant disadvantage when it comes to overall evaluations.
The Most Intriguing Finding: Expect a Little More Scrutiny on the Defense
That last bullet should raise some questions, so let me share a little more about the finding. Looking at plaintiffs and defendants, and comparing their scores after a win and after a loss, the analysis found that the difference between juror evaluations of defense attorneys after a win and after a loss was twice as great as the parallel difference for plaintiffs’ attorneys. So when defendants lose, that loss is associated with a much greater hit — twice as much — on perceived courtroom demeanor, sincerity, and competence. The results are summarized in the chart below.
(Used by permission, Bar & Bench of Minnesota, James W. Hoolihan)
It might be hard to immedately get your head around it, but what this graph shows is that, starting from the left, losing defense attorneys’ evidence presentation is rated 13 percent lower than winning defense attorneys, while that drop for plaintiff attorneys is 14 percent. That is close enough to call it even — so evidence presentation seems to matter about as much for both sides. But once attention is on some of the broader traits of courtroom presentation — demeanor, sincerity, competence, and preparedness — the differential evaluation of losing plaintiffs versus losing defendants is more stark. The results, which appear to be quite robust, show that these qualities hold higher stakes for defendants. “When the defendants ended up victorious on all counts,” Judge Hoolihan explains, “their attorneys were given ratings essentially equal to the ratings plaintiff attorneys received when the plaintiffs lost on all counts. However, the ratings given to the defense attorneys were significantly lower (and the plaintiff attorneys were rated significantly higher) when the plaintiffs were victorious on all counts.”
While the data does not show why it is a harder row to hoe for defendants, there are some grounds for reasonable speculations. The author’s theory is that jurors might be projecting their perceptions of a client onto their attorneys, and the defense attorneys in the predominantly criminal dataset might suffer more in a loss because their client is now a convicted criminal. It is easy to see how the same might also apply in a civil case where the defendant is confirmed to have done wrong and caused harm in some fashion. An alternate reading is that when the government or when a civil plaintiff loses, it is at least formally because they did not meet their burden of proof, and that decision rule draws juror attention to the evidence. But when defendants lose, it can be for any number of failures in credibility and presentation, and that broadens attention to all of the other factors covered in the article. The bottom line is almost certainly that it makes sense for litigators on both sides to pay attention to the broad spectrum of evaluation including elements of presentation.
Judge Hoolihan’s article concludes with some words that litigants should reflect on, particularly those who doubt the ability of average citizens to resolve high stakes and often complex disputes: “I can say without reservation that I have been awed and gratified at the universal attitude of jurors who wish to do the right thing and give their time and attention in a sincere effort to follow the instructions of the court and to be fair and judicious.”
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Other Posts on Attorney Evaluations:
- Criticize Clients Carefully
- Female Attorneys: Expect (But Don’t Accept) a Subtle Bias in the Courtroom
- Subvert Stereotypes: Free the Attorney, the Expert, and the Juror
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Hoolihan, J. W. (2014). What Jurors Think About Attorneys. Bench and Bar of Minnesota, February 14th.
URL: http://mnbenchbar.com/2014/02/what-jurors-think-about-attorneys/
Image Credit: Madmiked, Flickr Creative Commons