A lawyer's view from the jury box.
Haviug appeared before the judge as a practicing lawyer, I knew him to be intelligent, fail, in control of his courtroom, and solicitous of the jury. The attorneys trying the case were experienced, effective, and dedicated to their clients. What follows is not intended as any criticism of them. Rather, my observations are offered as a litigator's view from the jury box.
Based on my own perceptions and other jurors' comments during our eight-hour deliberation. I am convinced that some of the conventional wisdom regarding what persuades jurors is accurate--but much of it is simply wrong. Here are 10 dos, and an equal number of don'ts, for trial lawyers.
* Thank the jury. Jurors make real sacrifices to serve, so they take their responsibility very seriously. Most on my jury worked at their normal jobs early in the morning and after court was dismissed. Those who could not alter their work hours were acutely aware of the burdens their jury service imposed on their coworkers.
The jurors expect and deserve to be thanked: Start and end your closing argument by sincerely thanking them for their time and attention. They will definitely notice if you forget to do so.
* Use demonstrative exhibits. I no longer believe that jurors decide cases based on opening statements. By the third day of this eight-day trial, I had forgotten everything said in the openings. During our deliberations, not one juror mentioned anything connected with the opening statements. The models and simple charts the lawyers used in their openings, however, remained fixed in my mind. Despite my years of trial experience, the visual evidence made more impact on me than other evidence. Keep the charts simple; a complex time line referenced several times was too detailed to make an impression, and we never considered it during our deliberations.
* Use an outline of the witness testimony. Time is the jury's principal preoccupation. Will the trial really last the predicted eight days or, worse, go longer? How long will our presence be required each day? How long until the recess? How long will the recess continue? (Long recesses while the lawyers debated evidentiary matters with the court were particularly frustrating because we believed these matters should have been addressed before the jury was impaneled.) One lawyer presented a brief outline, on a flip chart, of the testimony by a particularly important expert witness. We found this chart helpful and comforting: It gave us a guide to where the witness was in his lengthy testimony and areas he had yet to cover.
* Watch witnesses' posture. A witness's nonverbal behavior is far more important than I had realized. A witness who slouches, leans back, displays an arrogant or aggressive posture, or seems too comfortable on the stand gives the impression that he or she does not perceive the matter as important.
While we believed that all the witnesses were telling the truth as they saw it, we determined whether to credit a witness based on overall demeanor almost as much as on spoken words. Obvious nervousness was not a detriment.
When you prepare a witness to testify, emphasize that posture is important.
* Introduce parties and witnesses. Perhaps one reason I forgot what was said in the opening is that I was distracted by my curiosity about the various people in the courtroom. Neither the plaintiffs nor the defendants were seated at counsel table in the small courtroom. Most of the witnesses were experts from out of state who commanded very large fees, so it would have been impractical to have them present during openings. But at least the principals should be introduced.
* Keep each witness's testimony short. Regardless of the witness's credentials and credibility, after about an hour we were bored, and it was a struggle to keep listening closely. Perhaps our sound-bite society has given us all short attention spans--or the overheated, crowded courtroom and repetitious testimony affected our attentiveness. The lawyers were not succinct, perhaps for fear of leaving out something crucial. Both direct and cross-exams were too long. Keeping it short is a far better way to hold the jury's attention.
* Make important points up front. The theories of primacy and recency--which I had long believed were equally important in the art of persuasion--did not work as I assumed they would. The primary principle suggests that it is more advantageous to bring out important points at the beginning of a presentation since first impressions have a stronger; more permanent impact on listeners. The recency theory asserts that it is better to save the best evidence until the end of a presentation because listeners will remember better and longer what they have heard most recently.
We jurors remembered the first points witnesses made, but by the end of their testimony, we were no longer concentrating as well. Moreover, since there was generally no signal that witnesses were close to the end of their testimony, points made toward the end were often lost on us. The same held true for opening statements and closing arguments.
* Be aware that the verdict form will guide deliberations. Throughout the trial, we were curious about exactly what we would be asked to decide. We first saw the special verdict form during closing arguments. It framed our deliberations--we considered the questions in order, first through last.
Because the verdict form will guide the jury's discussion, craft the document carefully. Display it during closing, and tell the jurors how you believe the questions should be answered.
* Focus on the jury instructions. While the most important document affecting our deliberations was the verdict form, the court's instructions were by far the most important factor in our decision. We believed that the jury instructions compelled the result we ultimately reached. We had taken an oath to follow the law as the court gave it to us, and we were determined to do out civic duty. Whenever a question arose during our deliberation, we consulted the jury instructions. Assume that the jury will read the instructions and do its very best to understand and follow them.
The next most important thing to our deliberations was what the witnesses said and how their testimony coincided with the jury instructions. Although we took notes and occasionally referred to them during deliberations, we had virtually unanimous recollections of what the witnesses had said without consulting our notes. Yet we managed to find a way to discount a credible witness's testimony if it did not fit neatly with our overall view of the evidence. We reviewed only a few of the documents in evidence, and they had little impact on our decision.
* Understand that jurors will advocate. During the trial's interminable recesses, we talked about our jobs, our families, and other matters, but never about events in the courtroom. Because we felt we knew each other by the time we began our deliberations, that process was relatively congenial.
But despite our most conscientious efforts to remain impartial, a few hours into the deliberations in this close case, jurors became advocates for their positions. Our group relied principally on facts and logic in explaining our respective views to each other. Do not assume that the most educated jury members are the most articulate or persuasive: The blue-collar worker on our jury was among the most eloquent in explaining and justifying his opinions.
After finally reaching a 10-2 decision on the most difficult issues of liability, we moved on to consider damages. However, one of the two dissenting jurors spent little time participating in this discussion. Instead, she again reviewed the jury instructions to convince herself that she could join in the majority's position. It was apparent that she was uncomfortable siding with the other dissenting juror against the majority.
We were well aware of out state's limitation on medical malpractice awards. But we did not know whether the damages cap applied only to pain and suffering or to the entire amount of damages or whether the lawyers had already taken the cap into consideration. We also had no idea what the monetary cap actually was in our state. So, following the jury instructions, we did not concern ourselves with the effect of our verdict. Although we made no attempt to "split the difference," after we had reached our verdict, we speculated that neither side was likely to be pleased with it.
* Do not appeal to common sense. I was surprised at the vehement reactions to one attorney's suggestion, in his closing argument, that we jurors should rely on our common sense. The more intelligent members of the jury were insulted because we interpreted that advice as condescending, as implying that we were probably not able to understand the complex medical testimony. Others, however, took the remark as a license to ignore both the judge's instructions and the witnesses' testimony and just "go with our gut." While I am certain the lawyer did not intend either message, our reactions were surprisingly strong.
* Do not rely on cross-examination. I had believed that cases are often won or lost on cross-examination. That may happen, but after my jury experience, I believe it is rare. During our deliberations, no juror ever brought up points made during cross-examination. I remember none of them. The cross-examination mainly seemed to provide an opportunity for the various expert witnesses to repeat and emphasize their direct testimony.
* Do not use depositions to impeach. Impeachment is ineffective. During the trial, I grew to dread the phrase, "Let's look at your deposition" because it meant another lengthy detour in the testimony--and little else. As a lawyer, I could generally understand why counsel thought impeachment was important. But as a juror prepared to believe that all the witnesses were telling the truth as they saw it, I felt that what they said in deposition was so similar to what they had said at trial that the lawyers had just wasted everyone's precious time.
* Do not try to humanize witnesses. Jurors realize that their task is crucial to the jury system. Given the extreme inconvenience they face, jurors expect to serve a worthwhile purpose. Like jokes and other attempts at levity, efforts to "humanize" witnesses fall flat and are considered offensive. We did not care what weight class the neurosurgeon wrestled at in college, or that the office manager loves dogs. Jurors understand that their duty is to decide the issues based on the facts. We were offended when the attorneys elicited irrelevant information, because it wasted valuable time and trivialized the process.
* Do not assume that because jurors are taking notes, you have made a point. We were quite pleased that the court permitted us to take notes, and we took them carefully at the outset. I had always assumed that when a juror took notes, I had scored a particular point. Not true. Several jurors (including me) confessed that we took the most copious notes when we felt sleepy or confused--note-taking was just a device to help us remain alert. Rather than persuading the jury, you may simply be boring them intolerably.
* Do not be concerned about objections. I long believed that objecting during opening or closing was a cardinal sin--that juries resent the interruption and consider objections during opening (unless they are absolutely necessary to establish grounds for a mistrial) rude and uncivil. Wrong.
It did not seem rude for the lawyers to object during opening. In fact, the jury was dismissed while the attorneys argued the objections made during opening. The unexpected recess did not seem to disrupt the flow at all.
I did not expect evidentiary objections to bother me because, after all, I practice under those same rules of evidence. But the objections did not appear to have an impact on any of the jurors, all of whom sensed that rules were part of the proceeding and discounted the interruptions as merely part of the process.
* Do not attack the integrity of the opposing attorney. The jury did not appear to care that the opposing lawyer wrote the first draft of an expert's report, or that a witness was paid or discussed his testimony with the lawyer. The jury sensed that this sort of thing is customary. Attempts to discredit opposing counsel seemed like children squabbling over something petty; the jurors simply wanted to move on to important matters.
* Do not forget that there is life outside the courtroom. While we attorneys are in court, all our thoughts and energy are devoted exclusively to the trial. We tend to shut out the outside world--but the jury does not. During the too-long, too-frequent recesses, jurors have little to do but read newspapers and magazines, so they are probably more aware of current events than they normally might be.
It was embarrassing, but not critical to the verdict, when one attorney attempted to cross-examine a damages witness about the outstanding return of an investment fund, on the very day that headlines reported the fund was in serious trouble. The attorney did not seem to notice that the jury was atwitter when he began making his point, which may have been valid once but was no longer.
* Do not assume that the jury has made up its mind. The court repeatedly cautioned us not to form any opinions until we heard all the evidence. I had never really believed that this cautionary instruction was effective. Wrong again.
Following that advice was far easier than I thought it would be, and our deliberations showed that the other jurors obeyed as well. In our prized time outside the courtroom, we were usually on our cell phones or working, which left little time to mull over the testimony. More important, to be proud of our job, we had to be fair, which meant keeping an open mind until we had heard everything.
* Do not overreach. Jurors expect lawyers to treat the opposing party's witness fairly. If you ask the witness a question to which he or she could not know the answer, or attack the witness, the jury will hold it against you, not the witness.
A brilliant closing argument cannot overcome a lack of evidence. Throughout the trial, we listened, we watched, we took notes, and we knew what happened in the courtroom. If you do not accurately describe or review the evidence, jurors will know. Because the judge warned us, several times, that what the lawyers say is not evidence, we generally discounted their arguments.
One last bit of advice: Accept jury service if the opportunity arises. Putting yourself on the other side of the jury box is a priceless experience. Not only will it provide insights for your own practice, it will also certainly generate a renewed respect for our jury system.
JOAN EADS is a partner at the Madison, Wisconsin, office of Foley & Lardner.