By Dr. Ken Broda Bahm:
Persuading a group that will then go off and deliberate is a unique persuasive setting. In a way, it can be called ‘Second Order’ persuasion, because it isn’t just about the person being convinced in the moment they’re hearing your case, it is about them being both convinced in that moment and motivated and equipped to advocate for your case later on when it comes time to deliberate to a verdict. After all, a juror who believes you but has nothing to say in the deliberation room to another who’s rejecting your whole pitch, isn’t a terribly useful juror to have. And, when running mock trials, we see plenty of those jurors: favorable folk who believe but don’t advocate.
So the strategic question is, how do you get a juror who is able to appreciate and navigate the transition from “passive observer and decider” to “active and engaged advocate”? It is tricky and depends on the person and the case. In a recent Law 360 article, Daniel Siegal notes that “Convincing a juror you’re right is just a starting point.” Through interviews with several attorneys and consultants on the topic, he notes that, “real success comes from using an anthropological eye to find the jurors who are willing and able to go beyond casting a vote and advocate on your behalf, then giving them the evidence and rhetoric they need to win over their peers.” Inspired by that discussion, and adding some thoughts of my own, I will use this post to present a brief list of seven ways to encourage that transition on the part of jurors from observer to arguer.
1. Assume Disagreement
Your goal might be for everyone on the jury to agree with you in every way. But the far more likely, practical reality is that some will and some won’t. Even if you’ve mastered jury selection and put on a compelling case, you should expect there to be disagreement in the jury room. Expecting that disagreement helps you put your focus on the messages that will help your supporters prevail in that disagreement.
2. Don’t Shun Leaders in Voir Dire
I have noticed that attorneys are often suspicious of potential leaders in a jury, sometimes to the point of wanting to strike them all, just for being leaders. It is as though the attorney is looking for sheep who will passively follow their own words and fear shepherds who could move the group in a different direction. The problem with that is the group is going to need a shepherd, and the attorney won’t be in the room. Leaders demand extra scrutiny in voir dire, to be sure, but the trait of being influential isn’t a negative trait. Rather, it is something you’re going to need from at least one or two of your favorable jurors.
3. Be Explicit
Chances are, your jurors are used to being passive observers: They passively watch movies, passively watch television, and passively watch what comes into their social media newsfeeds. And now, they’re passively watching the trial. It might slip their minds that they will need to use this information later on. Mention deliberations early and often, and make sure jurors understand that trial is just the preparatory phase, and the deliberation is the main event.
4. Give a Use-Scenario
When you are presenting evidence or arguments, don’t just think about it landing with a soft and convincing thud in the jurors’ consciousness. Instead, think about how it will be deployed in the crucible of deliberations. And then share that scenario with your jury, in closing, for example:
And what are you going to do with Ms. Smith’s testimony? Well, at some point in deliberations — I guarantee it — one of you on the jury will quite reasonably ask, what did my client, Mr. Jones, do to protect himself? And when someone asks that, the response is Ms. Smith. Remind that juror of her testimony showing that Mr. Jones was conscious, aware, and did everything he could. Use her testimony to respond to these questions.
5. Encourage Note-Taking
When jurors are allowed to take notes, it confers an advantage to the note-taker. The juror who is able to precisely share who said what and when is likely to have an outsized influence in deliberations. And there are a few ways to encourage note-taking. The direct way is to say it, “You should write this down.” Of course, you can’t be too directive on that front, but sometimes a witness especially can get away with saying that in a helpful and not bossy way. The more likely way to encourage note-taking is to do the things that we know will cause at least some to write: Use numbers and draw on a flip chart. Both are active ways to engage jurors and to influence what ends up on the pages that end up in the deliberation room.
6. Give Clear References
When they’re arguing your case in deliberations, your favorable jurors will need to back their claims up: How do they know what they know? To help them support their arguments, give them clear references. In closing, this means giving them quotes from testimony, including who said it, on what date, along with a photo of the witness to help them remember and contextualize the testimony. For exhibits, it means not just mentioning the exhibit number once when it is offered into evidence, but repeatedly, and ideally putting that number on the screen so jurors can write it down, refer back to it, look at it themselves, and then use it to persuade others on the jury.
7. Project a Preferred Persona
A jury isn’t an audience, and it helps for them to think of themselves in other terms. Even “finder of fact,” seems a little passive, as if those facts are simply “found.” Rather than being in the role of a passive recipient, they should be encouraged to see themselves in another role — a temporary identity — that emphasizes the activity that they will be engaged in leading up to and through deliberations. There are a number of ways you can frame this persona for them in voir dire, opening, and closing. They could be investigators of the true facts in the case, the scrutinizers of the other side’s case, the enforcers of the burden of proof, or the defenders of the civil rights at stake in the case. It will vary based on each scenario, but you should think about and convey an answer to the question, “What are they supposed to be doing other than just listening?”
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Other Posts on Deliberation Process:
- Expect Jurors to Climb Into the Cooler
- See Persuasion as a Process (Toward a Unified Theory of Legal Persuasion)
- Build Resistant Jurors: Lessons from the Aurora Theater Trial
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Image credit: 123rf.com, edited, used under license