Making the research work for you.
To be persuaded, a juror must first understand and then remember the facts of the case, the attorneys' arguments, and the judge's instructions. Research suggests that jurors experience significant difficulty achieving these goals.
One major post-deliberation study by Reid Hastie, Steven Penrod, and Nancy Pennington showed that individual jurors' memory of trial facts was approximately 60 percent accurate; their memory of judge's instructions, less than 30 percent accurate.(1) These findings correlate with data on jurors' errors during deliberation. Similar results have been found in other studies.(2)
The Hastie, Penrod, and Pennington study also found that 90 percent of jurors decide on a story model of what happened between the litigants before beginning deliberation. This does not mean that individual jurors have reached a verdict, but that they have developed an understanding of the case using some sort of story model.
Pennington and Hastie's "story model" is the most influential theory of jury decision making in cognitive and social psychology.(3) The theory's core concept is that people are information seekers and story builders - that to deal successfully with life events, they try to make sense of the world by obtaining information, synthesizing the information into a story, and reaching a conclusion about the story. A key part of the story is what motivates the various actors in the trial. Jurors come to understand the litigants' actions by identifying their goals.
To create trial stories, jurors obtain information from, first, the trial itself. This data may be legally relevant or not.
Second, jurors use "factual" knowledge of social and physical rules that seem to apply to a case. For example, factual knowledge can include a juror's belief about the effects of certain drugs on motor coordination or the accuracy of an eyewitness's memory. This "factual" knowledge can include a juror's belief about the effects of certain drugs on motor coordination or the accuracy of an eyewitness's memory. This "factual" knowledge may or may not be accurate.
Third, jurors use "strategic" knowledge to reach their pre-deliberation decision. Like factual knowledge, strategic knowledge is not part of the trial data but is brought into the courtroom inside each juror's head. Strategic knowledge comes from a juror's style of thinking - how he or she organizes and combines information to form a mental product or trial story.(4)
A jury's deliberation primarily replays, at the group discussion level, what went on in each juror's mind during trial. Evidence its combined math the jurors' knowledge of the world to develop a story of "what happened." Most of the deliberation is spent developing this story. Jurors spend only about 20 percent of their deliberation discussing the law.(5)
How can the attorney use this information to the client's advantage? As Daniel Linz and Steven Penrod note, "[I]nsofar as the attorney provides jurors with a meaningful comprehensible story, complete with characters who are assumed to have specific goals and plans, [the attorney] may be contributing to the natural process by which jurors reason in deliberation."(6)
When do trial attorneys have the first chance to present their trial story? The answer is opening statement. Some people maintain that most jurors make up their minds about a case at the conclusion of opening statement.(7) However, research does not support this view. Valerie Hans and Krista Sweigart found, in their sample, that 63 percent of jurors said they were neutral after the opening. Likewise, with respect to closing argument, 80 percent of jurors in the study said that closing did not significantly change their minds regarding the case.(8)
This should not be surprising when additional research consistently suggests that amount of evidence and strength of evidence arc the most important factors in determining a jury's verdict.(9)
However, these findings do not me that opening statement and closing argument are not important. In fact, Hans and Sweigart's findings indicate that jurors found opening and closing vitally important for providing a framework or theme for viewing a case.(10)
How can a trial attorney best plan opening? Psychological research on persuasive communication provides clues. First, instead of worrying about hitting a home run with the opening, attorneys should attempt to organize the opening with jurors in mind and design it as a vehicle or a framework that will make the evidence meaningful to them. Attorneys should use the opening to make a good first impression. (More about this later.) Finally, they should forewarn jurors about upcoming events, such as key witnesses or exhibits, arguments of opposing counsel, and flaws in the case or witnesses. In other words, they should steal the opponent's thunder.
Nothing should be unexplained in the opening. Explicit conclusions must be drawn. Although there is research suggesting that leaving some story conclusions unspoken heightens persuasiveness, this is true only for intelligent, highly involved listeners.(11) The trial attorney should take the safer route since one cannot be sure that jurors are drawing any conclusions, let alone the "right" ones.
However, heavy-handed attempts to convince by saying, "Once you see the evidence, you will have to ..." are more likely to produce a boomerang effect through the mechanism of psychological reactance. Research into this phenomenon suggests that if jurors believe an attorney is blatantly trying to reduce their freedom of thought, they will act in an opposite manner to assert their individuality.(12)
An opening statement (also read trial story and closing argument) should include several key elements on which an attorney can base and develop primary arguments. There is, of course, a limit to the number of arguments a person can present and still be persuasive. For best results, research suggests a limit of seven key issues.(13)
The trial story itself should be simple and emotionally appealing. Listeners better remember simple, uncomplicated presentations. On the other hand, several research studies analyzing persuasiveness of witness testimony indicate that the more detail a witness provides, even if trivial, the more credible jurors think the witness is.(14)
This may also be true for trial attorneys. Obviously, lawyers must strike a balance. One suggestion is to design an opening slightly longer and more complex than what is traditionally advocated, but use written visual aids to make the presentation easy to understand. Research suggests that people are more persuaded by complex material when it is written rather than spoken.(15)
Next, attorneys should consider the use of the forewarning and inoculation communication techniques. If a trial is a battle of two competing stories, the opponent will probably present some key arguments. Generally, the best way to handle the opposing arguments is forewarning and inoculating jurors against them. Research suggests that when people are forewarned that there are two sides to an argument, they are more willing to withhold decision until both sides have been heard.(16)
The inoculation concept derives from research that shows that listeners' resistance to persuasion increases if they are given a weakened version of an opposing argument and then shown how it may be refuted. In this instance, the attorney provides the counter arguments to jurors and immunizes them against opposing counsel's persuasive attempts. (These techniques can also be used in persuasive writing such as trial briefs.)
Jurors are not passive recipients of communication; they arc active information processors. Thus, besides telling jurors a trial story, the lawyer must teach them how to critically evaluate and resist the opponent's trial Story.(17)
The effectiveness of the inoculation technique has recently been demonstrated empirically. One study found that "stealing [an opponent's] thunder can affect verdicts and credibility ratings of participants in a simulated civil or criminal trial context."(18)
More specifically, this research showed that when a defense attorney in a criminal case used forewarning and inoculation regarding a damaging piece of evidence, it enhanced both is credibility and that of the defendant. Likewise, in a civil case when damaging information was raised by an expert witness about himself during testimony, the information significantly enhanced his credibility.
Evidence and Witness Presentation
Jurors remember emotional material better than factual material. Therefore, lawyers should present emotional evidence first and save technical evidence for last. It will be fresher in the minds of the jurors when they deliberate. For example, in a personal injury case, it would be best to present the economist, who is testifying to lost earnings, on the last day. This increases the chances that jurors will remember the rather dry, but important, numbers.
Scientific data also indicate that people better remember what they learn at the beginning (primacy) and at the end (recency) of a presentation.(19) Key testimony should be placed in these locations. If this is impossible, lawyers should make sure the evidence is novel or unique, so that it stands out in jurors' minds and becomes more difficult to forget. This is termed the "Von Restorff effect."
For example, a particularly credible expert should be presented as the first witness of the day, and the next most crucial witness should be presented last. If at all possible, two good witnesses should not be presented back-to-back because the impact of their testimony will be diminished. This same rule applies to the case as whole. The first and last day of evidence presentation should be designed to give the most important testimony. If two is impossible, attorneys should forewarn jurors that something important will be happening during the middle of the trial and offer the evidence in the most unique mariner possible.
Key story elements must also be high-lighted repetition. Research indicates that repetition leads to agreement with the message. Scientists hypothesize that repetition induces agreement because the listener drinks about the story element more and therefore develops more elaborate self-talk regarding the message. The data suggest that three repetitions lead to the greatest agreement. As the number of repetitions increases to five, there is a boomerang effect due to the phenomenon of psychological reactance.(20)
Repetition can occur in several different ways. For example, an attorney can call several witnesses to testify to the same key story clement. Or one witness can be used to repeat the significant part of the testimony in several different ways. Finally, during opening or closing, the attorney can recapitulate the significant story elements at several places.
In some recent experiments, Brad Bell and Elizabeth Loftus demonstrated that mock jurors found witness testimony more credible when it contained more specific details, even seemingly trivial ones.
For example, in their first study a prosecution witness testified the defendant shot a store clerk and a defense witness testified to the opposite. The prosecution witness said the culprit had a few items in his hand, and the defense witness said the armed robber had "Kleenex, Tylenol, and a six-pack of Diet Pepsi" when he confronted the store clerk. The mock jurors were less persuaded by the prosecution witness testimony.(21)
It is hypothesized that jurors infer that a witness testifying with exact detail has a better memory and is more attentive. Trivial but detailed testimony still impacts jurors' perceptions of the witness even if it is not directly related to the crime or cause of action. Likewise, the effect is particularly powerful when the opponent's witness does not provide such vivid testimony.
Attorney Credibility and
General psychological research indicates that first impressions are most important. They are the framework people use to interpret details they later acquire about a new acquaintance. People attend to behavior that fits their first impressions. They also often misinterpret behavior to fit first impressions or ignore information that contradicts them.(22)
The most important qualities associated with a lawyer's persuasiveness are credibility and attractiveness. Of these, credibility is the more important.
A credible persuader is perceived as expert and trustworthy. However, listeners will internalize the credible persuader's argument only if the message does not fall outside their "latitude of acceptance." Consequently, the position being argued must be believable.
The implications for the trial attorney are clear. To appear credible, attorneys must become experts on the case by learning before trial the strengths and weaknesses of the case so that they can convince jurors of the former and make them discount the latter.
Attorneys can enhance juror perception of their expertise through communication. Speaking style is important. Research suggests the rate of speaking, number of non-fluencies or mispronunciations, and use of dynamic rather than a mechanical way of speaking are crucial.
Psychological data indicate that fast, but confident, speakers are perceived as more credible. Attorneys need not worry that jurors will not comprehend them because average listeners remember a message faster than a person can speak at a normal rate. Data indicate that increasing the rate of speech as much as 200 percent does not cause a significant loss of comprehension.(23)
It is also important that attorneys train themselves to avoid "er," "ah," and "uh" pauses and qualifiers like "well," "you know," or "I guess." Attorneys must come directly to the point and not hedge.
The "Pygmalion effect" is a behavioral style attorneys should use. With this technique, based on the concept of auto-suggestion and self-fulfilling prophesy, they can communicate their expectation to another either verbally or nonverbally. Thus, if they act as if they "expect" to win the case, they, subtly persuade jurors to accept this belief.(24)
Attractiveness is also a major component of effective persuasion. Research suggests that physically attractive people are seen as more competent, friendly, and, at times, more persuasive than less attractive people.(25) However, there appears to be a U-shaped phenomenon at work: At some point, a person can be too attractive. In other words, moderately, attractive people may be more persuasive than either extremely attractive or unattractive people. Two may be because most of us see ourselves as somewhere in the middle on the attractiveness scale.
The data also indicate that listeners are more easily persuaded by people who are like them, but only if the similarity is relevant to the topic. The attorney who wears cowboy boots to trial because jurors do is likely making a mistake. Probably, only attitude similarity that specifically relates to trial issues is important. And this is impossible to predict.
So what's the bottom line? Just don't fool yourself that you are more persuasive because you look, dress, or act like the jurors.
Until the work done by Hans and Sweigart, there had been little psychological research regarding what real jurors think of attorneys. Hans and Sweigart's data confirm much of the general research discussed above. The researchers found that "attorneys who were not credible, had poor demeanor, used excessive appeals to the jurors' sympathy, or were poorly organized tended to alienate the jurors."(26)
First, jurors clearly did not appreciate attorneys who appeared slovenly and disheveled. Second, they perceived well-organized case presentations as stronger factually whether or not, in reality, they were. Third, they were not swayed by overly emotional appeals. Specifically, jurors appeared to evaluate an impassioned argument in fight of the seriousness of a plaintiff's injuries.
Being "human" also appeared to be an important factor. Hans and Sweigart give a quite telling example of a juror's perception of a defense and plaintiff counsel.
A male juror explained the differences between the two lawyers: They were both good lawyers, and the thing of it was that they both have opposite personalities. One man was ... a more story-type personable, warm-type guy, and the other man was very legal and precision-minded, very dry, cut and dry, unemotional.... [The plaintiff's attorney], he was more positive and more flowery and descriptive and colorful and story-type. The other man was negative....(27)
In that case, the plaintiff was victorious. Notice, too, the use of the words "story-type" by the juror.
Are attorneys good at judging their own impact on jurors? One research study would suggest not. Linz, Penrod, and Elaine McDonald found that the greater the attorneys' trial experience, the greater their misperception on how they affected jurors in opening statement.(28) though, with experience, attorneys appear to gain more personal comfort doing trial work, they may not be gaining significant understanding of how jurors perceive them.
[T]he finding that greater trial exposure is consistently related to overestimation of favorable qualities and underestimation of unfavorable qualifies among defense [and to some extent prosecution] attorneys suggests that recommendations for continuing legal education have merit. The results of this study, and others suggest that the most useful programs are likely to be those devoted to clinical simulations that are subsequently critiqued by peers.(29)
Trial attorneys should give serious consideration to routinely participating as students in advocacy training workshops where they can participate in clinical simulations and be critiqued by their fellow attorneys. Some of the above suggestions may seem like common sense. Research findings often do confirm the obvious. However, science can also do a good bit more. For example, sometimes research data reveals which of several commonsense ideas is actually correct. Likewise, research can demonstrate how far a commonsense idea can be taken before it becomes nonsense.
Finally, scientific data can show how a commonsense idea is really more complex than originally thought. As lawyers contemplate the research findings, they should use them as guideposts and think of what the findings mean and how they can be used to advantage.
(1) REID HASTIE ET AL., INSIDE THE JURY 80 (1980). (2) Alan Reifman et al., Real Jurors' Understanding of the Law, in Real Cases, 16 LAW & HUM. BEHAV. 539 (1992). (3) See generally Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519 (1991). (4) HASTIE ET AL., supra note 1, at 18. (5) Phoebe C. Ellsworth, Are Twelve Heads Better Than One? 52 LAW & CONTEMP. PROBS. 205, 205-24 (1989). (6) Daniel Linz & Steven D. Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8 LAW 6, PSYCHOL. REV. 1, 8-11 (1984). (7) DONALD E. VINSON, JURY TRIAL: THE PSYCHOLOGY OF WINNING STRATEGY 171 (1986). (8) Valerie P. Hans & Krista Sweigart, Jurors' Views of Civil Lawyers: Implications for Courtroom Communication, 68 IND. L.J. 1297, 1310 (1993). (9) See generally MICHAEL J. SAKS & REID HASTIE, SOCIAL PSYCHOLOGY IN COURT 66-71 (1979). (10) Hans & Sweigart, supra note 8, at 1316. (11) Linz & Penrod, supra note 6, at 27. (12) See, e.g., Russell A. Jones & Jack W. Brehm, Persuasiveness of One- and Two-Sided Communications as a Function of Awareness There Are Two Sides, 6 J. EXPERIMENTAL SOC. PSYCHOL. 47-56 (1970). (13) Bobby, J. Calder et al., The Relation of Cognitive and Memorial Processes to Persuasion in a Simulated Jury, Trial, 4 J. APPLIED SOC. PSYCHOL. 62 (1974). (14) See, e.g., Brad E. Bell & Elizabeth F. Loftus, Trivial Persuasion in the Courtroom: The Power of (a Few) Minor Details, 56 J. PERSONALITY & SOC. PSYCHOL. 669, 669-79 (1989). (15) See generally Alice H. Chaiken & Shelly Eagley, Communication Modality as a Determinant of Message Persuasiveness and Message Comprehensibility, 34 J. PERSONALITY & SOC. PSYCHOL. 605 (1976). (16) Linz & Penrod, supra note 6, at 17-21. (17) Id. at 23-25. (18) Kipling Williams et al., The Effects of Stealing Thunder in Criminal and Civil Trials, 17 LAW & HUM. BEHAV. 597, 607 (1993). (19) See, e.g., THOMAS SANNITO & PETER J. MCGOVERN, COURTROOM PSYCHOLOGY FOR TRIAL LAWYERS 163-64 (1985). (20) Warner Wilson & Howard Miller, Repetition, Order of Presentation, and Timing of Arguments as Measures and Determinants of Opinion Change, 9 J. PERSONALITY & SOC. PSYCHOL 184 (1968); see also Linz Penrod, supra note 6, at 9-11. (21) Brad E. Bell & Elizabeth F. Loftus, Degree of Detail of Eyewitness Testimony and Mock Juror Judgments, 18 APPLIED SOC. PSYCHOL. 1171 (1988). (22) See, e.g., Norman Anderson, Averaging Versus Adding as a Stimulus-Combination Rule in Impression Formation, 70 J. EXPERIMENTAL PSYCHOL. 394 (1965); see also Linz & Penrod, supra note 6, at 28. (23) James H: MacLachlan, What People Really Think About Fast Talkers, PSYCHOL. TODAY, Nov. 1979, at 113. (24) SANNITO & MCGOVERN, supra note 19, at 181-82. (25) See, e.g., Karen Dion et al., What Is Beautiful Is Good, 24 J. PERSONALITY & SOC. PSYCHOL. 285 (1972); Mark Snyder & Myron Rothbart, Communicator Attractiveness and Opinion Change, 3 CANADIAN J. BEHAVIOURAL SCI. 377 (1971). (26) Hans & Sweigart, supra note 8, at 1316. (27) Id. at 1318. (28) Daniel Linz et al., Attorney Communication and Impression Making in the Courtroom: Views from off the Bench, 10 LAW & HUM. BEHAV. 281 (1986). (29) Id. at 300.
John A. Call is a lawyer, psychologist, and a consultant in behavioral science trial techniques He practices tn Oklahoma City, Oklahoma.