by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
Invariably, despite excellent presentations at mock trials, some observers serving as mock jurors fall asleep. The typical response by clients is to ask us to wake them up, which we often do, but with limited success, as they tend to fall back asleep. The myth, debunked time and again, is that these people aren’t taking it seriously, aren’t taking it in, aren’t paying attention, and will have nothing to contribute as feedback. In fact, we have found that this is almost always contradicted by what ensues.
Contrary to what one observes with the naked eye, sleepers have heard more than you think, and certainly have taken in enough in their minds to reach a conclusion. They have fallen asleep because they are “done” and don’t feel as if they need or want more information. Perhaps they find the information boring, repetitive or superfluous, but nonetheless, once deliberations start, clients are amazed to hear what these people say and do. They speak up! They voice well-formed opinions supported by some facts. They don’t ramble and don’t stay quiet in the shadows as one might expect.
The insights of jury psychology tell us that these jurors tend to be very verbal and on point, whether friendly or hostile. At some point in the presentations, one of the parties lost them for good. Funny enough, in over 30 years, we have never heard another juror mention as a counterattack – “What do you know? You were sleeping the whole time!”
Understanding this phenomenon means you should not overlook those jurors in jury selection who seem to sleep either, because they are a few strikes away from being on your jury. They may be susceptible to a variety of cognitive biases we have discussed in prior publications.
Instead of making assumptions about them, find out, if possible, if any prospective jurors work the day shift or have any medical condition that might prevent them from staying awake and alert at trial. If they do not, but still seem sleepy, pay extra attention to how the sleepers answer other voir dire questions. Assume they will have some say in deliberations, rather than dismiss them as low risk because they will sleep. That’s a falsehood. If you take these precautions, we hope you have sweeter dreams and a sweeter reality at trial.
Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:
- Jury Selection: Should You Follow Your Instincts About a Juror?
- 7 Questions You Must Ask Your Mock Jury About Litigation Graphics
- 6 Types of Jurors That Can Fly Under the Radar
- 10 Things Every Mock Jury Ever Has Said
- Why Listening to Data - Not Gut - Pays Off at Jury Selection
- 10 Signs of a Great Jury Questionnaire
- 10 Ways to Lose Voir Dire
- Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations.
- 10 Ways to Spot Your Jury Foreman
- Jury Selection: So Few Strikes, So Much at Stake
- The Voir Dire Handbook | Free Download | A2L Consulting
- Jury Selection and Voir Dire: Don't Ask, Don't Know
- 7 Tips to Take “Dire” out of Voir Dire