Lawyers Who Understand the Jury System
Can Make It Work for Them
Alexis De Tocqueville got it right when he noted 150 years ago that America is a country where virtually every issue—the intimate, mundane, significant, complicated, and terrible—eventually makes its way into court. Once there, it is a strange system we have for resolving these problems. A collection of ordinary citizens, who appear to share very little in common, evaluate conflicting versions of historical events as presented by professionally trained, partisan adversaries in the stylized and artificial manner that is the jury trial. Described this way, it is not difficult to see why so many people have come to question the effectiveness of the way we try cases.
Yet, for all the skepticism about the legal system, we attorneys hear (and sometimes engage in) the snide remarks about trial attorneys and the venting about jurors. After almost 30 years in the legal business, I’ve come to believe that more often than not, the jury system really does work; and the lawyers who understand why it works will inevitably do better than those who do not.
When I suggest that lawyers should examine why the jury system works, many of my colleagues seem to believe that I am motivated by some flag-waving, nostalgic reason. I am not; my motives are far more pragmatic. Unless you think about why the system works—unless you make explicit in your mind what might otherwise be implicit—you can’t take full advantage of the opportunities the jury system provides.
I believe that the jury system works for a number of reasons. The first has to do with the nature of almost all disputes. While we attorneys tend to think our cases are complex and difficult (and require sophisticated thinking skills), most cases are defined by a common core of recurring, familiar elements. In fact, most cases actually revolve around themes, characters and motives that all jurors—by virtue of their being participants in our culture—understand. Such elements include taking credit for someone else’s work and “crimes of passion” (themes), ruthless entrepreneurs and courageous whistleblowers (characters), and greed, betrayal, jealousy and homicidal rage (motives).
In fact, when I hear that a case is “complicated,” I generally find that it’s the details of the case—not its core themes—that are complicated. As such, it behooves the smart attorney to build his case from the core themes inside out into the complicated details (i.e., deductively) rather than starting with the details and hoping the jurors will figure out the core themes by the end of the trial (i.e., inductively).
The jury system also works because as much as we attorneys like to deride our jurors, we often have more in common with them than not. Indeed, jurors share with the parties, the witnesses and the lawyers a level of wisdom and a set of common values that is a reflection of those held by the overall society. Those shared ideas include a tendency to understand new concepts by comparing them to familiar ones; beliefs about behavior and morality (e.g., stealing is wrong); and metaphors, parables, and expressions (e.g., “from the frying pan into the fire” or “throwing out the baby with the bathwater”) that the participants understand intuitively. It is those shared understandings that allow the jurors to work together to come up with their verdicts.
One of the most profound qualities that attorneys share with jurors is the innate desire to teach—and learn—via stories. As such, the wise attorney will create case narratives that rely on elements familiar to all listeners, including the themes, motives, characters, and ideas mentioned above. These elements have kept people listening to stories for thousands and thousands of years—at this point, in fact, I’d venture to say the human mind is actually conditioned to absorb information via stories. But the stories have to be good ones, because it’s only by telling good stories that we keep our jurors engaged. And it’s only by keeping our jurors engaged that we can persuade them that our client’s position is the correct one.
Repeating those stories at trial three times—(i.e. during the opening, during the case in chief, and during the close) also facilitates the jury system. That’s because the triple telling allows us to assert our client’s side of the trial more than once. It’s also because we present the story slightly differently with each telling. For instance, in the opening statement, we tell the story in the third person. During the case in chief, some of the witnesses tell the story in the first-person and some (if they’re expert witnesses) bring in technical information to support our client’s version of the events. During the close, we go back to the third person.
This variety in narrative styles and content allows us to use a variety of teaching tools, which appeal to the variety of learning styles present in every jury box. The story’s repetition also helps to build a cohesion and consistency that prevails over the many interruptions that break up the story during trial (e.g., from questions, objections, and delayed answers).
The fact that attorneys tell their stories directly to the jurors—as happens during voir dire, the opening statement, and the closing argument—is also important. Much like the choruses in ancient Greek tragedies and the voice overs in modern movies, the attorney’s direct interaction with the jurors provides an opportunity to set the stage for the coming presentation, to remind them of what was said, and to communicate subtle nuances that might otherwise be missed.
Of course, it’s not just the attorneys who get to tell their stories during trial. The essential characters in the stories—the ones, who actually lived the events—also get to come into court and tell their version of events to 12 jurors. In fact, much of our evidence law and rules governing trial procedure (including the rules against hearsay and our reliance on cross examination) are designed to make sure that, whenever possible, the jury gets a chance to observe firsthand someone who has direct and personal knowledge about what happened in the underlying dispute. That, too, helps sustain the jury system, because the jurors know that—to the greatest extent possible—they are getting the story from the people who are actually involved in the events in question.
Finally, the jury system works because the jurors bring what I like to call their “collective intuition” to the jury process. Some people call it “horse sense;” some people call it “common sense.” Whatever you call it, it’s an unpretentious but highly impressive group wisdom that sometimes surprises (and humbles) even the most experienced trial lawyer. It is not a completely rogue element, however. Instead, it is something that you can anticipate by keeping your presentation—and especially your closing argument—down to earth, focused on your core themes, and engaging for your audience.
Without question, our jury system isn’t perfect. Mistakes are made. But the attorney who understands how jurors learn, how they best take in information and how they work together to come up with a verdict is in a better position to persuade jurors of her version of events.
This article appeared in the San Franscico Daily Journal on November 11, 2008.
Appeared in The San Francisco Daily Journal
November 11, 2008