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A version of this article first appeared in TRIAL magazine.
Establishing Positive Feelings with Jurors
Requires Understanding and Respect
by Amy Singer, Ph.D.
Recently I was called for jury duty in Broward County (Fort Lauderdale), Florida where I live. I assembled with the other venire members in a large and sparsely furnished room deep within the bowels of the Broward County Courthouse. I took a seat in the front and waited my turn to be called for a voir dire panel. After 30 minutes the clerk, a young Hispanic woman, entered the room with a smile. She quickly and competently explained in both English and Spanish the court procedures regarding our upcoming duties as jurors. I was struck by her friendly professionalism. She handled the few questions raised with an air of easy confidence.
Later, I and 17 other veniremen and women were escorted by the bailiff, a large and genial man, to one of the courtrooms for voir dire. He got a laugh when he said, "You can all tell the truth when the lawyers question you.....no one here is running for office." I could sense the venire members immediately bonding with the easy-going bailiff, just as they had with the smiling clerk earlier.
The judge, an elderly man with a "good old boy" Southern disposition, also made us feel positive about being potential jurors. He welcomed our venire group pleasantly to the courtroom, made sure to establish eye contact with us as he spoke, and discussed our upcoming duties as jurors in a polite and sociable manner.
Then there were the lawyers.
Neither the prosecutor nor the defense attorney - both Yuppies in their early thirties; one a woman, the other a man - looked up as we entered the courtroom and took our seats in the jury box. They were too busy shuffling papers and whispering back and forth to assistants. A sign over the judge's bench proclaimed this noble thought: "We who labor here seek the truth." But the opposing attorneys' demeanors made me think of two automatons, programmed to do their jobs regardless of the truth. They seemed artificial and mechanistic. It was like both attorneys had chips in the back of their heads. Neither cracked a smile as they joylessly pawed over the papers in front of them.
The case concerned a charge of drug peddling. The defendant was a short man in his mid-30s. He was attired in the flashy, bejeweled manner associated with drug dealers. He also failed to look at us, but stared intently at the prosecutor for long periods with an air of deadly menace.
During voir dire questioning, both the prosecutor and the defense attorney positioned themselves safely behind the podium. Each spent the majority of time posturing and prattling on about obscure points of law, lecturing us like school children regarding our "solemn duty" as jurors, and asking us over and over in different ways if we "could be fair." Both clumsily tried to sell their cases to us before any evidence had been submitted. I could sense the jurors sitting beside me tense up repeatedly throughout the seemingly endless voir dire questioning. I was eventually excused as a juror because of my background as a trial consultant. I am sorry to state that the lawyers - not the clerk, bailiff, or judge - made my short stint as a potential juror a largely unpleasant experience.
This recent experience, plus my trial work of nearly two decades, indicates to me that many attorneys need to do a better job building rapport and establishing positive feelings with jurors. Before discussing how to accomplish these two key goals, it will be helpful to examine possible reasons why some attorneys find it difficult to connect in a positive manner with jurors. It will also be useful to briefly consider why - despite being a trial lawyer's bread and butter - jurors many times don't receive the respect they should from attorneys.
Many attorneys seem to understand the law, but not the jurors
While in school attorneys receive excellent training regarding the law in all of its majesty and complexity. They learn how to construct a case and argue it effectively. They are taught the best methods to question witnesses and to introduce evidence. But I don't think they learn much about jurors - who they are, what they care about, or how they feel about their experiences in court.
Most important, I don't believe many attorneys learn how to deal effectively with jurors as people. This failing damages attorneys' attempts to establish rapport and to build positive feelings with jurors.
Few attorneys, for example, seem able to put themselves in the jurors' shoes. They forget that jurors have been pulled from their normal routines of home and job and thrust into an unfamiliar and often unfriendly environment - a place where judges wear robes and guards are outfitted in government uniforms; where busy officials buzz around on self-important but mysterious tasks; and where the key players speak in a nearly impossible to understand language termed "legalese."
In today's busy world, time has become one of our most precious commodities. But a chief complaint of jurors concerns all the time they must waste in court - a transgression for which they hold attorneys largely responsible. Yet attorneys continue to fritter jurors' time away with pointless voir dire questioning, long and rambling open statements and closing arguments, repetitive questions to witnesses, numerous objections, regular requests for recesses, and so on.
Few attorneys truly respect jurors
Wasting jurors' time is problem enough. But I believe the most egregious insult against jurors is that they are seldom treated with respect by some attorneys. In the 1997 movie "Devil's Advocate," Keanu Reeves plays a young plaintiff's attorney hired by a blue chip New York law firm to pick a jury in a criminal case involving animal sacrifice. He and the lead attorney spend five minutes during voir dire staring intently at the various panel members while whispering back and forth to each other regarding which individuals should be de-selected. The two insensitive lawyers were treating the jurors as if they were little more than specimens under the microscope. I have seen this scene repeated too many times in court.
I don't know why it is, but not enough attorneys treat jurors with true courtesy. Jurors enter a courtroom like people entering a bar; they want to be recognized and made to feel comfortable. They search earnestly for a friendly, smiling face. Seldom does that face turn out to be the attorney's. He or she almost always is too involved with minor tasks to show the jurors a little attention and respect.
Disrespecting jurors is crazy because they own the case
Many attorneys fail to respect jurors because they are unwilling to acknowledge that it is the jurors - and not the attorneys - who own the case. They mistakenly think (and act like) the jurors are just along for the ride. After all, it is not the jurors who have spent countless hours planning, organizing, and constructing the case - that grand and glorious construction - or who will be responsible to fire it up and fly it around in court.
This is fallacious and dangerous thinking on the part of attorneys. Yes, it is the attorney who labors long and mightily on the case, both inside the courtroom and out. But it is not the attorney who retires to a little room at the trial's conclusion to decide the case - this is the jurors' task. So it is the jurors, and not the attorney, who truly own the case. The attorney who fails to properly understand this essential fact does so at his or her peril.
Some attorneys seldom comprehend how they come across with jurors - poorly
Numerous post-verdict interviews conducted by my firm indicate that jurors feel closest to judges and bailiffs, but far less so toward the attorneys. "I really like the judge (or the bailiff)" are common comments of jurors. They feel this way because judges and bailiffs are "warm and friendly"; they are "down to earth"; "they go out of their way to make us feel great"; and "they seem interested in each one of us personally." A common statement of jurors after trial is that the "judge (or the bailiff) is not afraid to be a human being."
But our post-verdict interview findings often fail to register many positive feelings toward the attorneys who try the case. "They'll say or do anything to win their cases," is a common sentiment expressed. Some others: "They treat us like idiots during jury selection" and "They don't try to connect with us as human beings." Jurors indicate in post-verdict interviews that it is a rare occurrence when an attorney goes out of his or her way to "make us feel good as jurors." And while it is true that some attorneys score positively with jurors in post-verdict interviews, these often are the exceptions that prove the rule.
Of course it is far easier for judges and bailiffs than it is for lawyers to be relaxed and friendly with jurors during the trial - they do not have a client whose very life, freedom, or financial well-being may be riding on how successfully his or her case is presented during trial; nor are their own current incomes, future earnings, or professional reputations at risk, depending upon the nature of the verdict to come.
Attorneys too "fact" oriented, not "people" oriented
Not enough attention is paid in many law schools to the fact that jury persuasion is primarily a psychological, as opposed to a legal, phenomenon. Consequently, teaching young attorneys to focus on the psychological needs of jurors often gets short shrift in law school.
For example, a trial is a message-dense environment in which two opposing parties normally present widely conflicting viewpoints regarding how jurors should interpret the same set of facts. Often both sides have crafted their individual arguments and courtroom presentations to be compelling and convincing. Trying to make sense out of such a highly divergent set of facts and arguments, and to render a verdict concerning this disparate information, is bound to prove confusing to jurors; indeed, many suffer an acute sense of psychological anxiety as a result of this uncertainty.
Themes help jurors sort out the issues
One way attorneys can help jurors eliminate this problem is to utilize a thematic approach regarding their overall courtroom presentation. This means supplying the jurors with an easily graspable theme concerning the case - "safety first, not last" in a products liability case, or "greed" in a commercial case - then hammering home the thematic message during every phase of the trial. The point is that the correct theme, when properly presented in court, helps jurors to significantly reduce and even eliminate their normal anxiety states concerning conflicting case arguments. It is like a lifeboat that helps jurors stay afloat during the trial's most raging tempests. A good theme enables jurors to look for evidence that "fits" the trial story, and to disregard evidence that does not. The theme becomes the primary filter through which jurors evaluate all the case facts.
Yet despite these many advantages, far too few attorneys employ a thematic approach when they plan or present their cases. The tendency for many attorneys is to focus case development instead on complex legal issues that jurors may neither understand nor care about. It's the old problem of lawyer perspective versus juror perspective. During trial many attorneys will tightly nail down one legal fact after another in dogged, even obsessive, fashion - but many times to no avail. Remember the oversize and elaborate multicolored chart Marsha Clark used to outline the dozens of key facts arrayed against O.J Simpson during his murder trial? The jurors didn't care about any of that. But they could easily respond to Johnnie Cochran's easy to understand message concerning the glove Simpson supposedly wore the night of the murders: "If it doesn't fit, you must acquit!"
Too many attorneys get caught up marshaling an often mind-numbing display of legal minutiae and detail before the jurors. But such information often goes right over the jurors' heads. Conversely, what the jurors are looking for, and what they want to hear and see during trial, often goes over the attorney's head.
Attorneys need to sing the song the jurors want to hear
When it comes to many courtroom presentations, it's as if the typical attorney knows the words, but can't feel or hear the music. As a result, he or she can't sing the song - at least not the one the jurors want to hear. The attorney is simply not in tune with the jurors - like Cochran clearly was with the O.J. Simpson jury.
I participate in many legal training seminars where I lecture on jury psychology topics. I am always struck by the tendency of many attorneys in the audience to try to reduce everything to a strict set of facts about jurors, or to "do this, then that"-type formulas in terms of dealing with them. This mechanistic approach seldom works with jurors, who are not easily pigeon-holed, labeled, or classified.
Working psychologists such as myself don't hold seminars. Instead we engage in workshops - experiential learning events where we utilize role-playing, psychodrama, and similar techniques to address the most deep-felt emotions and feelings of the people with whom we assist professionally. Attorneys need to develop a similar hands-on approach to learn how to establish that all-important bond with jurors.
To connect with jurors, attorneys must first understand them
The great hunter Frank "Bring-'Em-Back-Alive" Buck was famous for learning every trait and characteristic of the animals he planned to capture. So too the attorney must learn everything possible about jurors - and specifically their primary likes and dislikes - if he or she is to gain their understanding and sympathy in court.
Following are some of our firm's post-verdict interview findings regarding common juror likes and dislikes: Jurors almost always side with the judge during trial proceedings. This means they will not look fondly on the attorney who is constantly at odds with the judge regarding points of law. Such bickering can come back to bite the attorney during deliberations. Jurors don't like videotaped depositions ("poor production values," "boring," "the video put me to sleep"); and they dislike attorneys who spend time fumbling with exhibits and other presentation aids. Along this line, things may be going too far with the current heavy reliance on elaborate graphics, charts, and multimedia exhibits. Such presentation aids should be used judiciously. (Please see accompanying sidebar.)
You'll anger jurors if you waste their time
"Wasting time" is probably jurors' most common complaint regarding their trial experience. They dislike the time spent while they must sit and wait to be called as jurors; during overly long voir dire questioning; during long-winded attorney oratory; while attorneys confer with the judge during bench conferences; and during the many trial recesses and other breaks. They sense that no one involved in the trial process values their time, and they are largely correct in this assessment. The attorney's credibility can be negatively affected if he or she is seen as someone who wastes jurors' time. So quickly get to the point in opening statement and closing arguments, eliminate unnecessary repeat questions to witnesses, and avoid being long-winded at all times.
Also, jurors dislike much of voir dire questioning ("the attorneys treat us like children" or "they ask insulting questions such as, 'can you be fair'"). Not surprisingly, jurors often feel the chairs in the jury box are uncomfortable and the meals served during deliberations are not very good. (At least attorneys can't be held responsible for these shortcomings!) Of course jurors register a wide range of positive and negative feelings regarding many other aspects of their courtroom experience; but the opinions listed above come up on such a regular basis they merit highlighting.
Building rapport and credibility with jurors
In today's cynical and skeptical society, it is not easy to establish trust, particularly for attorneys. The O.J. Simpson trial, the Lewinsky scandal, and the dozens of legal "talking heads" blathering away incessantly on TV, have made many suspicious of attorneys. Tort reform sentiments haven't helped. Lawyers are the butts of countless national jokes. How do you build rapport with jurors under such circumstances? Following are some suggestions attorneys may wish to adopt to establish positive feelings with jurors at trial.
During voir dire
While many attorneys often perform competently during the latter trial segments, they frequently come up empty during voir dire. This is a big problem because voir dire represents the key trial segment when the jurors and the attorneys meet each other for the first time. And just as in life, first impressions count dearly in court.
One reason attorneys often perform poorly during voir dire is because the process makes them uncomfortable. Like the nervous suitor, they end up talking far more during voir dire than they should, while leaving jurors little time to speak. They are afraid to let jurors reveal their true feelings for fear of contamination.
Additionally, attorneys ask close-ended questions to tightly control juror responses, instead of utilizing open-ended questions which enable the jurors to state how they truly feel about the key case issues. They inadvertently insult the jurors by questioning their ability to be impartial. They subject jurors to a bone-headed "20 Questions" approach - "Please tell us the names and ages of your 10 children."
The fact is many attorneys are not sure what (or what not) to say to jurors during voir dire. Each juror is approached as a confounding Rubrik's Cube, impossible to figure out; or as a deadly time bomb, waiting to go off.
Attorneys need not fear voir dire. Nor does voir dire have to be so complicated or self-defeating. The term "voir dire" translates from the French as "to see them talk" - a direct and clear concept. Voir dire is the trial component organized to let jurors "speak the truth." The key to voir dire - and to immediately establish rapport and trust with jurors - is to simply ask jurors how they feel about the primary case issues, then be quiet, and let them speak. That's all there is to it. Most people like to volunteer their opinions but are seldom asked to do so. Allow jurors to tell you how they feel during voir dire, and they will appreciate you for it. Plus, you will discover their attitudes concerning the central issues associated with your case. This of course is what voir dire is all about.
And don't worry about "contamination." The chance of other jurors becoming contaminated due to a brief expression of bias is remote. People do not suddenly alter their lifelong opinions and attitudes due to the chance remarks of others.
Another tip: don't be a nervous motor-mouth. This means avoid talking too much during voir dire. Keep in mind what Dale Carnegie said: if you're the one doing all the talking, your listeners end up judging you.
Most important: evaluate jurors on the basis of their attitudes and opinions, not according to their demographics. De-selecting jurors on the basis of sex, gender, age, religion, and so on is an insulting process, not only to the jurors de-selected, but also to those who remain. The subliminal message sent to jurors: I don't think you can be fair and impartial. Indeed, I have selected you for jury duty because I believe demographic factors beyond your control will automatically prejudice you in favor of my client and case. You can rest assured that jurors at some level will receive this derogatory message. And because it is so negative, some jurors may even be prompted subconsciously to prove you wrong during deliberations. In other words, they'll go the other way just to show they are not prejudiced. I've seen this happen before in court.
Remember: numerous studies indicate that it is the jurors' value beliefs - the bedrock principles they hold most dear - and not demographics, that correlate most closely with verdicts.
During the actual trial
Attorneys should think of the courtroom not as a stage upon which they strut, but rather simply as a room they temporarily share with the jury members. They need to employ good manners in all their actions while in the courtroom, just as they would in any other social setting. It may sound trite but attorneys should be sure to smile when they speak to the jurors. (You would be surprised how many attorneys forget this simple rule!) If the judge permits, attorneys should come away from the podium - a needless barrier between themselves and the jurors. Six to eight feet is a proper distance to maintain from the jury box; four feet or less is too close for comfort. Whenever possible, they should maintain appropriate eye contact with the jurors. It is not a good idea to block the jurors' views of the witnesses, or to turn one's back on the jurors. Avoid pacing back and forth in front of jurors, along with any other bodily gestures or mannerisms they may find irritating.
Speak kindly to the jurors, not pedantically as if they are students in a law or medical class. Use simple words and phrases wherever possible. Don't try to impress with confusing legal or medical terminology. Advise your witnesses to speak accordingly.
Hand the case over to the jurors
The attorney should treat the jurors as trusted partners whose shared goal is to guarantee justice in the case. The attorney should try to convey the attitude that he or she is exploring the case with the jurors, not explaining it to them. This subtle yet important distinction is one jurors will be sure to appreciate. This means the jurors need to be included whenever possible in attorney-witness discourse. For example, in direct: "Can you please share with us..." instead of "Please tell me..."; and in cross: "Do you expect us to believe..." rather than "Are you trying to tell me...." Along this line, the attorney does not want to exhort the jurors during opening statement and closing argument, but to reason with them instead.
Tell jurors a story to get them on your side
Top trial lawyers know one of the best ways to positively involve jurors is to tell them a story. Indeed, colorful story-telling in the courtroom has a long and illustrious history. In the Old West, the best trial lawyers were the great celebrity stars of their day. People would travel for miles to watch the attorneys perform in court. Invariably, the lawyers would utilize simple stories all could understand to support their arguments in court, often relying on the Bible for material.
Pat Maloney (Law Offices of Pat Maloney PC, San Antonio, Texas) is an expert at winning over jurors through powerful story-telling. In one case he represented a young Mexican man who had been horribly mangled while using a meat grinder with no kill switch. During the trial he had the jurors on the edges of their seats as he told the sad story of the poor young man, forced to work with dangerous machinery in order to bring home meager food money for his impoverished family. Contrary to accepted wisdom, Mr. Maloney referred time and again to his client in court not by name but simply as this "young man." He did so to convey a classic human archetype - the destitute young man who must undergo great deprivation, hardship, and danger to support his family members. The jurors responded to Mr. Maloney and his simple yet compelling story with a multimillion dollar verdict for the client.
James Fitzgerald (The Fitzgerald Law Offices, Cheyenne, Wyoming) is another powerful courtroom story-teller. While representing a client who had been badly burned, he told jurors a dramatic story concerning the long-term distress, difficulty, and suffering associated with recovery. Through evocative word pictures, he helped jurors see and feel what his client had to undergo while lying helpless on a gurney as the nurse delivered medications intravenously...the squeamish feeling of cold liquid running through the man's veins....the burning, searing pain of numerous skin grafts....the feelings of panic associated with being in a conscious but paralyzed state while doctors performed complicated life-threatening procedures....the never-ending anxiety of a life turned upside down and inside out. Mr. Fitzgerald's client also received a huge jury award.
Plaintiffs who have been hurt or injured often have powerful stories to tell. The key to connecting with jurors on behalf of such plaintiffs is to help them see what your client sees, hear what your client hears, and feel what your client feels. This requires a strong degree of empathy and understanding, not only towards the client, but also towards the jurors as compassionate individuals who can be touched and moved.
Sincerity is crucial
No attorney can hope to connect with jurors unless he or she is sincere with them first. Such sincerity cannot be feigned - jurors will sense false emotion in a heartbeat. But what does sincerity mean in court? Perhaps this rhetorical question will help illustrate: Does the attorney plan to truly connect with the jurors, or to merely manipulate them through clever words and tactics instead? Along this line, the attorney will never be able to connect with the jury unless he or she has first been able to truly connect on an emotional level with the plaintiff/victim.
To be able to connect with others, a person must first be in touch with himself or herself. While self-knowledge is important for any professional, it is vital for attorneys who must successfully plead the cases of others in court. This is why I often recommend therapy as a useful self-knowledge tool for any attorney. Sensitivity training and psychodrama can also be helpful.
Credibility is, by far, the most important personal and professional quality an attorney needs to possess. As we become more credible to ourselves, we become more credible to others. Indeed, "know thyself" is an essential verity for successful trial attorneys. Here's another: "be a mensch." This translates from the Yiddish as "be a human being." And how should it translate in court? Simple. Attorneys should exhibit sincere fellowship towards jurors. They should smile. They should act "real." They should project warmth and humanity. They should rip those chips out from the backs of their heads.
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Amy Singer, Ph.D., trial consultant, is a nationally recognized authority in the field of litigation psychology, and an expert regarding the psychology of jurors and juries and the dynamics of a jury's deliberations and decision-making processes. Dr. Singer is the founder and president of Trial Consultants Inc., headquartered in Fort Lauderdale. She is the co-author, along with Texas trial attorney Pat Maloney, of Trials and Deliberations: Inside the Jury Room, published by West Group Inc. Her articles on jury and trial matters are a regular feature of the legal and business media. Additionally, Dr. Singer is called upon on a routine basis by the national broadcast media to provide informed courtroom commentary regarding prominent trials. She frequently lectures on jury, trial, and settlement matters before numerous professional organizations across the country.