The Search for Meaning in the Jury Box
The judge looks at her monitor, jots down a note, and listens as the Plaintiff’s attorney finishes his opening statement. He sits down and the judge introduces the Defendant’s opening statement. The jury turns their attention, rapt in these precious first few moments. But instead of captivated, the jury is wondering, confused. Why has the Defense attorney previewed the defense argument using the exact same three topics the Plaintiff just presented? Doesn’t the Defense disagree with the Plaintiff? Why are they following the same path?
In the last few weeks alone, in both mock courtrooms and real ones, we have seen trial presentations which failed to maximize opportunity. Instead of creating powerful first impressions, telling a strong story, and creating unique, symbolic, and lasting meaning in the jury, too many attorneys organize their first opportunities to make an impression by covering the main topics the evidence covers and — by doing so — miss the chance to give jurors an experience and to create a feeling which helps them understand the fullness of their case.
In this month’s column, we focus on how what we know and are continuing to learn about in today’s post-
pandemic juries intersects with established tenets of jury economics and jury decision making. Specifically, we look at the research and knowledge of the story model of jury decision making set against the reality that today’s jurors have decreasing attention and patience and an increasing desire for meaning in all aspects of life.
Jurors’ Search for Meaning
Surely you’ve noticed a few things have changed since the pandemic. We are all running for our lives each workday and many weekends to keep up with the pace of the courts “opening back up,” but take a minute to think about your circle of family and friends and what is different about them in the last few years. Anyone changed jobs? Anyone have a different attitude toward socializing? Anyone more anxious, more active, less willing to waste time? Anyone living more in the moment and worrying less about the future? Jurors are experiencing these same changes.
Phenomena like the “great reassessment” and the “great resignation” are a function of many Americans reconsidering how they want to work and live their daily lives. One of our favorites is New York Times writer, Kevin Roose, coining the term “YOLO economy” to describe our collectively greater focus on living for the present, spending more time doing what we love, and generally doing the kinds of things which bring meaning to our lives. In the past few years, surveys show that a strong majority of Americans have considered change both personally and professionally, looking for a more meaningful and integrated life. One McKinsey study shows nearly two-thirds of employees surveyed said the pandemic caused them to reflect on their purpose in life. Two out of three people reconsidered their purpose in life. People want a purpose at work, and they want the reward of a meaningful experience outside of it.
The Story Model
For decades researchers and theorists have developed an understanding for how jurors and juries make decisions. Among the most supported is the renowned story model of juror decision making. Researchers Reid Hastie and Nancy Pennington, among others, authored crucial papers in the understanding that juror decision making is commonly about using stories — archetypal stories, personal stories, and trial stories — to make sense of complex evidence, remember key events, and persuade other jurors during deliberations. In the research, a good trial story has coverage, coherence, and uniqueness, meaning the narrative of what happened in the case adequately accounts for the set of facts, is plausible as a cohesive set, and is detailed and specific enough to stick in jurors’ minds and feel like the real-life events they portray. The story model does not suggest topics and verdict form structure is a good way to help jurors create a framework, filter, or organizing structure for remember and arguing your story is the right one.
Putting It All Together
1. Is Music About You? Egocentrism is so often considered a liability, a bad word to be heard too close to our names. The reality that jury decision making is egocentric is a central tenet of jury economics. Embrace the reality that jurors are egocentric and recognize what it means for your case. As we recently heard in an interview with a popular musician and songwriter, we love our favorite music, art, movies, and stories because we are able to make them about us. As heightened or even corny as it may sound, the same goes for jurors and the value of trial presentations. Jurors love finding familiarity in stories that also feel new and give them an opportunity to use their experiences and their perceptions to solve a mystery or make a good decision. They love identifying in their own lives the characters, and conflicts, and struggles they have experienced or can feel kinship with. They cannot do this, at least not nearly as easily or as well, when you organize your thoughts by topics.
2. Story Your Opening, Topic Your Closing? Research by our colleague Shelley Spiecker shed great light on the important value of telling stories, particularly in opening statements. Dr. Spiecker’s research compared the effects of a story structure versus a verdict-issue structure in both opening statement and closing argument. One of her important findings was that a narrative or story approach tended to be more effective in opening statement and a closing argument structured around the verdict-issues (e.g., liability, causation, damages) tended to be more effective. This does not mean you should abandon story in closing arguments — you can still use story very effectively as part of the key topics you might cover. It does mean that an opening statement that sings a story is better both in our experience, our practical mock trials and jury interviews, but also in more rigorous academic research studies.
3. Where to Place Your Faith? Today’s jurors are looking for connections that matter to them and how they want to live their daily lives, with more purpose and less waste. Telling efficient stories and helping people identify the human elements that matter to real people is almost never going to be a bad decision. Don’t forget that jurors think about themselves and filter your evidence through their own experiences and ideas. Give them slivers of the human stories in your case by finding the conflicts that matter both to the people in the case and ultimate reason there is a dispute to begin with. Accentuate those human elements by giving them life, a setting, a backdrop with the elements of real life that make them resonate — imperfections, details, unique aspects of the people who lived them. Trust that jurors will care more and attend better to the reasons you’re telling that story to begin with — to prove your client has a reason for being in the courtroom.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Litigation Consultant at Perkins Coie in Denver, CO.
