By Dr. Ken Broda Bahm:
The instructions for jurors are clear: They are to take an issue that has no effect on them, listen dispassionately to the evidence and arguments, apply the facts to the law, and make a decision. That is the model, but in reality other motivations creep in. In talking with jurors in mock trials and after real trials, we have often observed that jurors bring their emotional reactions, and the most important motivating emotions aren’t sadness or sympathy – those feelings can be demotivating. In most cases, the most important emotion is anger. That is what induces jurors to treat their role as a mission, and to see their verdict as a message.
When there is something in the story or in the presentation of the principal witnesses that taps into that anger, it can be bad for one side. Most often, but not always, a juror’s anger is directed towards a defendant. In preparing for a defense, it is important to think of all of the factors that could trigger anger, and find ways to avoid, defuse, reframe, or otherwise counteract those factors. Reading through some mock juror quotes from a few recent projects, it occurred to me that the attitudes fall into a few different but reliable categories. In this post, I will share some of those comments (slightly altered in some cases, so as to avoid case identification) and group them into seven major juror anger buttons.
1. Dishonest
“Even though it’s an entire company, which people do we go after, right? The upper echelon of it, I think of Enron. Who’s shredding all the papers? The guy up above.”
“I’m torn between my feeling that the company is a great big abusive structure that has no problem with lying if it benefits them and I’m trying to separate that feeling of that company from what we’re being asked to decide.”
We have seen it over and over again in cases: It’s not always the crime, it’s the concealment. Jurors understand that unexpected and bad things can happen, but jurors will bristle at the perception that a party, or a witness, was dishonest during their part of the story, or was dishonest in court.
2. Disrespectful
“Im gonna have to hit the shower immediately following these SCUZZBUCKETS bullshit…he has the THINNEST, WEAKEST defense imaginable.”
“Think if this was another organization, this wouldn’t have happened. … it is only that they’re dealing with low income people. They treat them like animals.”
Perceived disrespect can be directed either at other parties (you did not treat them well), or at the jurors (you are insulting us with that argument). In both cases, it is a problem for credibility.
3. Dismissive
“I would come for blood. Who is in charge for checking her? You’re gone, you’re gone, you’re gone… I think they’re being pretty flippant, pretty dismissive.”
For parties, the events may be just another day at work, and for the attorneys, it may be just another case. But for the jurors hearing it, it is serious enough and big enough to have had an effect on the outcome, and to have made it all the way to trial. So the rule is to treat the people and the issues with requisite seriousness and respect.
4. Callous
“I genuinely found the whole presentation revolting… it felt slimy and it felt cold and it felt callous. The lawyer was very good, they were very good at arguing… but what they were doing was something that was not good. They’re a corporation trying to minimize their damages.”
As a presenter, in addition to being confident and competent, you need to be caring as well. You need to convey, in both words and manner, that “I understand that we are talking about real people, and (in many cases) real tragedies.” You can acknowledge the human side of it without admitting fault and without maximizing damages.
5. Manipulative
“Laws were changed back and forth to benefit the company, and the company knew about it! They lobbied, created their own studies, and put in ‘regulations’ that favored themselves. And now here we are, talking about paperwork! But we can see what’s been destroyed. I don’t care about permits and paperwork and laws, because companies are responsible for those. They were put there to favor them.”
The perception that the parties and their lawyers are “gaming the system” in order to escape responsibility can be a source of anger, even if the argument is ultimately correct. That is why it is often essential to say both that “We did the right thing,” and “We did the legal thing,” and to even give the former a bit more emphasis.
6. Deflecting
“Their version is, ‘How am I going to explain this? I need to pass the buck off to someone else.’ That irritated the crap out of me. I don’t like that. If you know something is wrong then at least acknowledge it. Don’t bullshit me and talk to me like I’m a piece of trash.”
Refusing to acknowledge something that a jury is inevitably going to hold against you is also a common source of anger, because it tells the jury, “I’m going to argue against everything, including the obvious (which means my arguments can’t be trusted);” while also conveying that you think they might fall for it (which means you don’t think much of them). If you have an inevitable weakness, admit it.
7. Greedy
“I legitimately worry a verdict that’s too low will not impact the company’s future behavior… I think their attorney would be delighted with anything less than $3.5 million.”
“The blood of business is money…. This is the only way we can get these guys to stop doing stupid stuff.”
Obviously, defendants go to court because they don’t want to simply pay what the plaintiff is asking. So, it is ultimately about the money in that sense. At the same time, it helps if the jury feels you are fighting for something else as well. If there’s a broader principle at stake, articulate that.
A reasonable advocate wouldn’t want any of those juror quotes being shared about their own case. But, I can tell you as someone who watches a lot of juries, it happens. In any given case, your jurors might be susceptible to one or more of these anger triggers, or all of them. That is a key reason to assess and test the case in advance. It helps to know where the juror’s buttons are.
Other Posts on Juror Emotion:
- The Punishment Profile: Know the Juror Characteristics
- Consider This Version of the Reptile: It’s Not Fear, It’s Anger
- When Assessing Emotions, Listen, Don’t Look