This article was published in the Summer 2012 edition of the Oregon State Bar's Litigation Journal.
During the course of a trial, a lawyer works hard to present evidence and jury instructions to ensure that the jury will view the case from the same perspective that the lawyer does. A lawyer knows that under the law, the decision of the jury must be based on the admissible evidence and guided by the jury's instructions.
Jurors ignore this.
A number of studies confirm that jurors decide cases on a number of factors, the least of which are jury instructions and admissible evidence. Jurors don’t think like lawyers, and successful jury trial lawyers recognize this fact.
1. Inductive versus deductive reasoning.
Lawyers are trained in inductive reasoning. They use specific facts to prove a conclusion. Each element of the claim for relief they are trying to prove is substantiated by specific facts arising from testimony and documents.
Most of us, however, during our nonlawyer, everyday lives use deductive reasoning—we use general knowledge to make assumptions about a specific case. Most of us, based on our experience, develop general assumptions about the way the world works. Those assumptions include stereotypes, biases, and prejudices. When we are exposed to a new situation, we simply apply the assumptions developed from our general knowledge and experience to the situation at hand to arrive at a conclusion.
2. During deliberations, jurors discuss their own general experiences.
Studies disclose that during deliberations, jurors share with fellow jurors their own personal experiences, which they believe will be helpful in coming to the right conclusion in the case on which they must make a decision.
Recent studies disclose that jury deliberation time is devoted to a discussion of the following issues in the following percentages of total deliberation time:
- 50 percent discussing general experiences;
- 35 percent discussing procedural issues;
- 8 percent discussing jury instructions; and
- 7 percent discussing perceived admissible evidence.
These statistics are shocking, in that they disclose that jurors spend only about 15 percent of deliberation time discussing the two factors (jury instructions and admissible evidence) on which they are mandatorily bound to make their decision.
3. What these statistics ought to tell us.
Because jurors are inclined to spend most of their time and energy sharing general experiences and ignoring jury instructions and admissible evidence, certain practices should be considered:
- a. Remind the jurors of their obligations. We need to emphasize the importance of jury instructions and admissible evidence and drive home the jurors’ responsibility to decide each case solely on these factors. Experienced practitioners often warn jurors against their natural inclination to allow their own general experiences, biases, prejudices, and presumptions relating to stereotypes to influence their decision. This warning not only encourages each juror to resist deductive reasoning but also encourages the group as a whole to be critical of any individual juror who argues on an inappropriate basis.
- b. Recognize that you can’t change the stripes on a tiger. Experience teaches most of us, however, that despite our encouragement, lecturing, and cajoling to the contrary, most jurors either openly and expressly or secretly and impliedly allow their general experience to influence their decision. Recognizing this phenomenon suggests certain techniques:
- i. Eliminate jurors who are predisposed against our clients. If we recognize that jurors are naturally heavily influenced by their own general experiences, then during jury selection (voir dire) we try to eliminate jurors whose general experience and the background will predispose them to look at our client or our version of the facts adversely. Appeals to duty, the requirements of the law, and civil responsibility are largely ineffective. Use your peremptory challenges to eliminate potentially troublesome jurors.
- ii. Appeal to the general experience of jurors. Recognizing how strongly and naturally the jurors will be inclined to judge your case on their own general experiences, develop themes and arguments that appeal to the jurors’ general experiences so that supporting you and your client will be consistent with their natural deductive reasoning.
- iii. Expose yourself to the experiences of the masses. Each of us needs to work hard to ensure that if we wish to persuade jurors, we either share or understand the general experiences that they will carry to the courtroom. Some lawyers make it a habit of viewing the most popular movies and television programs and reading the most popular novels and magazines to enable them to think like a juror and recognize where common experience can be used in the art of persuasion. Other lawyers listen to talk shows to develop a sense of what people on the street are thinking and why. Other lawyers never miss an opportunity to engage in small talk with the kind of folks who serve on juries (cab drivers, gas station attendants, and grocery clerks) to develop an awareness of how they think and how they are persuaded.
There are no easy answers here. But awareness is what is key. If we realize how jurors are inclined to deliberate and to make their decisions and use that information to our advantage, we can improve the effectiveness of our skills of persuasion.