By Dr. Ken Broda Bahm:
A bit like members of the armed forces, jurors are often thanked for their service. For the attorney, particularly in the opening moments of a trial, it is both common and important to make sure that jurors understand that you appreciate them serving, even though it is for little compensation, and often at the cost of great disruption to their lives. But stating respect is one thing, and showing it is another: As they say, actions speak louder.
Jurors at the outset already feel a distance with lawyers. Lawyers are generally more educated, higher socio-economic status than most jurors, and they’re versed in a language and a set of procedures that is quite foreign to most. A bridge is necessary to reach most jurors, and showing respect can help to build and maintain that bridge. Ultimately, to win a jury at trial, you need to think not in terms of giving them a position that they will accept, but rather reasoning with them so that they reach the conclusion you want by the same path that you’ve laid out for them. It starts with respect. In this post, I will share the top seven ways to demonstrate that respect.
1. Be on Time
You are not always in control of the court’s schedule, and it seems to be a habit in courtrooms, even when the jury is present, to have long stretches of time where (to the jurors’ eyes at least) nothing is happening. While you can’t always avoid that, you need to control what you can control. That means always being on time and ready for the jury. And it means making every effort to get the court to handle things in advance so you aren’t wasting the jury’s time with things that could have been done before they arrived.
2. Be Appreciative
While you don’t want to go overboard on the gratitude, you do want to pick a moment to let them know, with sincerity, that you appreciate their time and attention. It shouldn’t be the first thing you say in opening (that should be your bottom line “Silver bullet” on the case), and it shouldn’t be something you say over and over again, but it does bear mention. Make sure you clarify what you are thanking them for — not just for being here, but for their efforts, their willingness to get into detail, and perhaps their ability to get beyond their first impressions.
3. Help them With the Task
For nearly all jurors, what they’re being asked to do is a highly unusual task. Sitting and listening carefully for hours at a time, parsing instructions in deep legalese, in order to reach an agreement with a group of strangers tends to be not even close to anything they have done before. So take some time to explain what is going on. The judge will do some of this, but for your part, work to make the instructions and the task itself understandable, and close to common sense.
4. Identify With Their Thinking
The people who are on your jury know how to understand and react to stories — they do it every day. But the way they would hear something in normal life differs from they way they will hear it in court — broken up, fragmented based on each witness’s direct knowledge, and likely with some pieces missing. So the more you can identify with what they are perceiving and noticing, the better. The more you can use phrases like “you might be thinking…” in order to frame and address their ongoing reactions, the more you will be reasoning with them, and not just arguing at them.
5. Treat them as Individuals
From your language to your eye contact, treat them not as an undifferentiated mass, a “jury,” but as individuals, jurors. Better yet, treat them as people who also exist outside of the courtroom, who have lives, experiences, hobbies, and occupations. A great practice once your jury has been selected and seated is to create a seating chart with everything you learned about these individuals in the context of voir dire. Sharing that chart with all of your team and your witnesses helps to remind everyone of the three-dimensional people you are dealing with.
6. Don’t Condescend
One of the worst things lawyers can do is talk down to a jury. Attorneys already seem to be a different species to most jurors, and naturally, the attorney will know much more about the facts and the law than the jurors, but saying things like, “This might be pretty complicated for you…” or “You might not have noticed, but…” just serves to build a greater wall between you and your audience. As I’ve written before, in addition to projecting your own persona, there is also a “Second Persona” you are conveying in the message of what you think of them, and that message should be one of respect.
7. Actually Respect Them
Finally, the ultimate way to show respect for jurors is to actually respect them. Remind yourself of the difficult and remarkable role that society is asking them to fill. Remind yourself that, even as a few in the venire will scramble madly to avoid jury duty, most approach it with a sense of duty and honest interest. It can be easy to focus on anecdotes of jurors getting it wrong, and from the viewing room of a mock trial, it can sometimes even be a little scary to watch the sausage being made. But in the majority of cases, jurors will be willing, engaged, and at least somewhat systematic. That merits some respect.
Ultimately, respect is more than a tactic, it is a mindset. The more you see of jurors, the more you are likely to understand that, while they may not be seeing the case or approaching the decision in the same way you would, they are in in the courtroom and later the deliberation room doing something absolutely critical. It is one of our few examples of successful direct democracy, and despite the flaws and limitations, jurors are substantive, somewhat predictable, and ultimately persuadable.
Other Posts on Adapting to Jurors:
- Adapt to Your Jury’s Social Reasoning
- Expect Jury Leaders to Act as Individuals, not Representatives
- See the Process and Not Just the Product in Deliberation