by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
Have you ever heard a lengthy joke and started wondering, “Where is this going? It better be worth it!”?
In any area of human endeavor, the longer the buildup, the more your mind wanders and the less you expect a worthwhile payoff. A mystery novel that takes too many twists and turns makes a satisfying resolution less likely because there is too much to reconcile coherently. The same holds true for anything that is presented to a jury -- such as long, winding opening statements, intricate, piecemeal expert examinations, and the like. Any trial presentation that causes jurors to ask, “What’s the point?” has not been presented well.
That’s because it’s much easier for a jury to remain focused and motivated and to understand the relevance of information when the jury has a headline that helps it know where the information is going and that it is worth paying attention to the information. Although counsel knows where he or she is heading and why, the jury may not.
And without knowing the underlying reasons, jurors feel that they are being subjected to random information for its own sake. The result is that they question its relevance and importance. They feel that they, as the audience, are being disregarded. For an attorney, keeping jurors focused until the end to appreciate the meaning of the mosaic, piece by piece, as it brings the full picture into view, requires knowing what the final puzzle is supposed to look like before viewing the pieces individually and assembling them. However, many attorneys wait until the end to tell jurors what the picture will look like, in part due to legal procedure and in part due to their own style. This is not how jurors’ minds work.
The same evidence can lead lawyers and jurors to different destinations, because litigators’ reasoning method (inductive) conflicts with jurors’ reasoning method (deductive).
Litigators are required to build foundations, block by block, from the bottom up, before reaching conclusions. They are trained to wait and see -- to attend to specific details until a pattern emerges that forms a theory. Hence, lawyers tend to present jurors with a series of facts, assuming that jurors will wait for, and then recognize, the pattern - after the pieces stack up to reach the same conclusion.
However, jurors don’t work that way. They start at the end and work backward, forming a general theory into which they fit specific evidence from the top down. Once a juror’s theory is formed, new information is filtered through that theory and tested for how well it fits with the theory. Information confirming the theory is selectively attended to; ill-fitting information is missed, ignored, forgotten, or distorted to fit the theory, through cognitive dissonance.
Evidence does not change jurors’ minds as much as their minds change the evidence. Remember the infamous “glove demonstration” in the O.J. Simpson criminal trial? Those who believed he was guilty saw it as proof that he was faking the misfit. Those who believed he was innocent saw it as proof that it did not fit. No one changed their mind because of it.
An up-front theory and story provide jurors with a map that enables them to see where you are going and to follow you. Jurors need to know that the punch line will be worth it before hearing a long joke. They need to see the map before going on the journey with you. Without knowing where you are starting and where you are going, GPS cannot lead you there; neither can you lead jurors to your destination without that information.
To satisfy the conflicting needs of the law, the record, the judge, yourself, and last but not least, the triers of fact (jurors), you can:
• Use case themes: short, memorable phrases that outline your case and conclusions in your opening statement and that are repeated throughout trial to create a relay race between the evidence and where it is heading;
• Reinforce case themes and key points with visuals and repetition in your trial presentation;
• Provide “evidence sandwiches”: simple bottom lines first/detailed information as filler/recap of the bottom line;
• Speak “bilingually”: Translate legal and technical lingo into layman’s language for the jury;
• Anticipate and address consequences of the jurors’ verdict options in terms of their lives;
• Tell a simple story (with a start, middle, and end), and fit your evidence into it, not vice versa.
You can overcome common, known and avoidable obstacles to jurors, by starting with the end and making clear what your point is and why it matters, so jurors are more willing to follow you there.
Most of all, don’t take the scenic route, lest jurors ask prematurely, “Are we there, yet?”
Related A2L Consulting articles on the subject of trial presentation, juries, and storytelling:
- Free Download: Storytelling for Litigators - How to Get GREAT at It
- 5 Things Every Jury Needs From You
- 10 Things Every Mock Jury Has Said
- Five-part series on jury selection
- Trial presentation tips anyone can learn from Hollywood
- Graphically immersive trial presentations work best
- Alternative Fee Arrangements for trial presentation services
- 14 completely preventable trial presentation mistakes
- How do trial presentation consultants do what they do?