I have the pleasure of talking every day with litigators around the country, and working together to overcome their greatest case handling challenges. Recently, these conversations have revealed a slow, but monumental change in jury behavior in the last couple of years. Some questions I hear frequently that bring this sea change to light:
- I’ve seen some really big verdicts lately… help! (from defendants)
- I’ve seen some really big verdicts lately…. How do I get that kind of result? (from plaintiffs)
- How do I connect with Millennial jurors?
- How do I use technology to win?
These are big questions, with massive implications. Before answering these questions, It's important that people understand root cause: Americans are becoming less and less grounded in objective facts.
Sometimes it would seem that facts are irrelevant. Some jurors don't even believe in the concept of facts. Relativism has done enormous damage to the reasoning ability of many jurors. Emotions and their close cousin - pictures - rule the verdict making process.
With that frame of reference, how do trial lawyers and claims handlers connect with today's jurors?
1) Emotion first
Advocates need to think about trials from a purely emotional point of view. Win the hearts of the jurors first, then back up your emotional appeal with facts and law. If you fail to do this, or if you reverse the order, then your facts and law may not even be considered, especially in more liberal-leaning jurisdictions.
Did jurors award a multi-billion dollar Monsanto verdict because the plaintiff’s facts were so convincing? No! The plaintiff attorney in that case first engaged the juror’s negative perception of a big corporation, then crafted the facts to help channel those emotions into big money.
2) Pictures > Words
Pictures are far more important than words. It may be too much to say that "The side with the best pictures always wins" … But not by much. Today’s typical juror is a visual learner (the average adult spend 11 hours a day interacting with media), and has a much shorter attention span. Pictures get attention. They “stick” in jurors minds through long days of testimony, and into the deliberation room. They engage emotions in a way few words can.
3) Don’t count on following rules
In about 95% of our negligence cases, jurors ignore their jury instructions. There are no feelings to be had there. Again, the shrewd lawyer will first address the heart, i.e. will first create a feeling that the jury instructions are important, help the jurors to WANT to understand the jury instructions - BEFORE giving them the law.
Most people want to follow the law, but their emotional need to help someone who was hurt, or punish a wrongdoing corporation, will override that sense of following the rules - unless you intercede to attach emotional significance to the rules.
4) Battles won (and lost) at jury selection
Jury selection determines outcomes now more than ever before. Modern people simply do not have the ability to defer judgment. It pains them too much. Instead, they decide the case early to avoid the pain of indecision. If you wait to win in your case in chief, you will often lose. If you wait to win in your Opening, you will often lose.
Today, the best strategy is to win your case in jury selection. Both in terms of identifying nightmare jurors and - far more importantly - in conditioning the jury to accept your view of the case. Of course this is not the way they told us to behave in law school. But it is the truth in today's courtroom (This is why we have developed a program for helping lawyers get good at jury selection, and get comfortable with jury conditioning).
5) Know thy jurors
The internet reveals far more about jurors than ever before. Lawyers must arm themselves with the best information out there for identifying nightmare jurors… and there is A LOT of information available. To go into voir dire blind should be viewed as borderline malpractice.
The internet creates an enduring ledger of our lives, both on- and off- line. Powerful artificial intelligence allows us to compile social media posts, voting and legal records, and more in a matter of minutes, giving well-prepared litigators a roadmap to make the very most of their limited time in voir dire.
6) Jury research moves online
In addition to revealing more of our personal information than we would ever care to share with the world, the internet has also fundamentally changed the economics of jury research. Each quarter we do more and more online jury research/focus groups. Why? Because litigators can gain a ton of information, and can even get comfortable with voir dire, for much less than a traditional in-person mock trial or focus group.
Today’s jurors require a fundamentally different approach than in days past. To win, it is absolutely necessary to engage juror’s emotions first, before facts. You must harness the power of pictures, and not count on people following the rules for rule’s sake. You will win or lose in jury selection, and you have powerful tools available to give you more background on prospective jurors than you ever thought possible. Finally, online jury research makes it economical to gather invaluable objective feedback on your evaluation, themes, and arguments.