Two Things Can Be True Simultaneously: Learning to See Through the Eyes of a Juror

This is an excellent representation of what happens during litigation. We are taught in law school that a great lawyer can see both sides of the case and argue each side effectively. In mock trials, trial counsel often switches roles, presenting the adversary’s case in front of the jurors. Being able to identify the nuances of the case and then to deliver those to the jurors in a persuasive manner is effective advocacy.

Seems pretty easy, right? Put on a different colored hat or change your tie, and you have assumed the persona of opposing counsel, with the ability to see your case clearly from both sides. After thorough case preparation, armed with this additional perspective, you now feel confident to argue your case to the jury knowing ‘both sides of the issue.”

Enter into the courtroom, and now you have twelve vastly different people listening to the evidence and your arguments from a wide range of values and views. Getting your jury to reach a unanimous decision (or the magic number in your jurisdiction) requires your presentation to acknowledge that the juror may perceive the evidence in a different way than you see it. “Rather than ignore reasonable competing arguments and the shared values championed by the other side that are actually implicated in the case, we need to explain why we interpret those values differently. We have no chance of persuading someone else without recognizing and responding to their legitimate concerns.” [1]

In our example cartoon, it would be simple for counsel to explain why she is arguing that particular position of the number… and how someone could find the facts to be the other way. Acknowledge that there is a difference in the way the parties see the “number,” and then show the jurors how your position is supported logically by the evidence. To tell the difference between a “6” and a “9” depends upon context and orientation. How can you use that to differentiate your position from your opponents?

Jurors are often offended when counsel tells them that any other position but counsel’s own position is “wrong.” If a juror gets emotionally connected to his or her own perception of the case, any criticism may be seen as a personal affront to that juror. [2]

If you find that your jurors are having difficulty understanding what you are attempting to convey, there could be several reasons behind it. Establishing yourself as a leader in the courtroom is essential, and ‘that communication is central to being a leader. It is ‘the only way that leaders can and do inspire others to act.’”[3]

How can you establish yourself as a leader through communication in the courtroom? Here are five areas to focus on:

1. Watch your “Complex Language” or “Legal Jargon”: 

   Legal terminology and complex language can be challenging for jurors to understand, especially if they're not familiar with legal concepts. Simplify your language and avoid using jargon whenever possible. Use plain language and explain legal terms in a way that is easy for jurors to grasp. Studies have shown that “the less concrete your language is-the less trustworthy you will seem.”[4]
   
   

2. Slow Down!:

   Speaking too quickly can make it difficult for jurors to follow along and process the information you're presenting. Slow down your speech and articulate your words clearly. Take pauses to allow jurors time to absorb what you're saying. 
   
   Reflect on your own communication skills and techniques. Are you speaking clearly and confidently? Are you making eye contact with jurors and using nonverbal cues effectively? Practice effective communication techniques, such as active listening and empathetic communication, to connect with jurors and convey your message more effectively.

3. Have well-organized arguments:

   Ensure that your arguments and presentations are well-organized and easy to follow. Clearly outline the key points you want to convey and provide a logical structure for your arguments. Avoid rambling or going off on tangents that could confuse jurors.
   
   

4. Reduce distractions:

   Environmental factors such as background noise, poor acoustics, or visual distractions in the courtroom can interfere with jurors' ability to hear and understand what you're saying. Minimize distractions as much as possible and use microphones or other audiovisual equipment if necessary. 
   
   Ensure that you are not distracting! Don’t click pens or leave your cell phone on vibrate. Jurors can see…and hear everything. Make sure your trial suit is game-day ready.

5. Engage your audience!:

   Jurors may struggle to understand your message if they're not fully engaged or interested in the proceedings. You must capture jurors' attention and maintain their interest throughout the trial. Use a variety of techniques, compelling visuals, and interactive elements to make your presentations more engaging.

Dopamine, the “feel-good hormone,” gives us a sense of pleasure and motivation. Create a “dopamine hit” by crafting a story that connects with the jurors. “A great story can create a crescendo of pleasure neurochemicals. It can also amplify the feeling of discomfort or decrease and quiet it to avoid pain.” [5]

By improving these skills and employing effective communication strategies, you can improve jurors' understanding of your message. It is essential that you practice these techniques and your presentation. Utilizing litigation services such as mock trials and focus groups will give you the opportunity to practice in front of a jury but don’t forget to take advantage of every chance you get to present in a courtroom.

Even if you have incorporated these suggestions into your trial practice and mastered effective communication, you will still have challenges tailoring your argument to ensure that every juror can understand. Assessing whether a juror lacks the life skills necessary to understand complex legal concepts can be challenging, but there are several indicators you can look for during jury selection and throughout the trial process:

1. Educational Background:

   Reviewing a juror's educational background can provide insight into their level of literacy and comprehension skills. While formal education is not necessarily indicative of life skills, individuals with lower education levels may struggle to understand complex legal concepts.
   
   

2. Occupation and Experience:

   Consider a juror's occupation and life experiences. Individuals with professions or life experiences that involve critical thinking, problem-solving, and analytical skills may be better equipped to understand complex legal issues. Individuals with strong customer service skills may emerge as the leader in the deliberation room.
   
   

3. Communication Skills:

   Pay attention to a juror's ability to articulate their thoughts and communicate effectively during voir dire. Individuals who struggle to express themselves clearly or who seem hesitant or unsure in their responses may have difficulty sharing their own views on the facts. A juror who is unable to articulate his position will be an unlikely foreperson, and an even unlikelier leader in the deliberation room, regardless of his leaning.
   
   

4. Engagement and Interest:

   Observe a juror's level of engagement and interest during the trial proceedings. Jurors who appear disinterested, distracted, or bored could have difficulty comprehending the legal arguments presented in court or simply just don’t care. Either explanation makes for an unsuitable juror.
   
   

5. Have Well-crafted Voir Dire:

   During voir dire, ask jurors questions to assess their understanding of basic legal concepts relevant to the case. Listen for their responses and gauge whether they demonstrate a grasp of fundamental legal principles. Observe jurors' body language and nonverbal cues for signs of confusion, frustration, or disengagement. These may indicate a lack of comprehension or difficulty understanding the proceedings. This is also an opportunity to determine how that juror will observe that evidence right in front of him.

Consider consulting with experts who can provide insights into jurors' cognitive abilities, communication styles, and potential challenges in understanding complex legal concepts. Just because a juror may not see the case from your “vantage point” does not mean she should be stricken.

At every stage of preparation, look at your case from every angle so that you are in the best position to persuade every juror to see your case from your vantage point. Present the evidence in a way that is clear, consistent, and concise. Acknowledge that they may see the “6” instead of the “9,” but that once the orientation and context is proved, there is only one way to see the evidence.

[1] Joseph William Singer, Persuasion: Getting To The Other Side.

[2] Roger Fisher and William Ury, Getting to Yes.

[3] Why You Should Avoid Jargon And Talk Like A Leader (forbes.com)

[4] Why Speakers Must Avoid Jargon to Engage Audiences (thereluctantspeakersclub.com) citing Hansen, J., & Wänke, M. (2010). Truth From Language and Truth From Fit: The Impact of Linguistic Concreteness and Level of Construal on Subjective Truth. Personality and Social Psychology Bulletin, 36(11), 1576-1588. https://doi.org/10.1177/0146167210386238

[5] Karen Eber. A Perfect Story: How to Tell Stories That Inform, Influence, and Inspire.

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