For 40 straight minutes, Mari, Heather, and Jonathan were the loudest voices in the mock jury deliberation room. From the start, they dominated the discussion and were confident in what they had to say. This established them as early discussion leaders and led others on the jury to question whether they really wanted to argue with these motivated plaintiff advocates.
The problem was the discussion in deliberations had begun on a topic which strongly favored the plaintiff. This created natural space for these three plaintiff advocates to take leadership roles. We knew from the pre-deliberation questionnaires that these three motivated plaintiff advocates were actually outnumbered but you could not tell from the first 40 minutes of deliberations.
They began by going to the first question on the verdict form and took them in order. There were five defendants in the case and the first ten questions on the verdict form focused on the negligence of each defendant and whether the negligence was a cause of the plaintiff’s injuries. By the time the group got to the eleventh question about the plaintiff’s contributory negligence, which was the strongest issue for the defense, the social dynamic of this group’s deliberation had already been established. The loud minority of plaintiff advocates assumed leadership roles, and defense advocates appeared unwilling to challenge these early leaders.
Despite the pre-deliberation questionnaire results that showed six mock jurors favored the defense versus only three who favored the plaintiff (and an undecided), the group voted 8-2 to find all defendants negligent and attributed the bulk of the fault to them.
We have often written about the mistaken assumption that the arguments and debate between each side’s attorneys are the most important debates at trial. It’s easy to fall into this trap. Just about every good movie about trials and attorneys focuses on the battle between the attorneys. Attorneys are always the main characters. Yet we know that does not reflect the reality of jury trials.
The most important debate at trial is the one that takes place in the deliberation room since that is where the verdict is decided. Deliberations rarely start out with everyone in agreement, particularly in civil cases, even when the final verdict is unanimous. Consequently, the jurors must argue and debate the issues until one side prevails and influences jurors on the other side to cave and change their votes.
Most would think it takes much to convince a juror to vote against how they actually feel about the case, but it happens more often than most attorneys realize. We routinely see this in mock jury deliberations and hear about it from actual jurors in post-trial interviews. Sometimes, jurors change their votes simply because they are tired of arguing with advocates for the other side. That is what happened with Mari, Heather, and Jonathan. The early momentum they gained in the discussion emboldened them to become loud advocates and they simply wore other jurors out.
Along with the most important debate taking place in the deliberation room, not the courtroom, we have correspondingly argued trial attorneys should think of themselves as the debate coach rather than the debater, especially when it comes to closing argument. By closing argument, most jurors have a good sense of how they feel about the case based on what has been presented. Thus, closing argument should focus more on teaching them how to deliberate on the case rather than a continued effort to persuade them. As the preceding example shows, persuasion alone does not necessarily win the day for one side or the other. Your jurors should be armed to go back to the deliberation room and exert control over the discussion. They must gain early momentum, step into that leadership role, and drive a verdict which reflects their views of the case.
The starting point of deliberations has significant influence over the entirety of deliberations. Often, when we conduct mock trials with mixed results where one side wins two of the groups and the other side wins one group, we can trace the different outcomes to different starting points in deliberations. Our contributory negligence case is a great example. Two of the groups found in favor of the plaintiff and one group found in favor of the defense.
What was different about that last group that found in favor of the defense? It became immediately clear when reviewing the start of their discussion. The group that found in favor of the defense did not begin their discussion with the first verdict form question. Instead, the defense advocates immediately spoke out about the plaintiff’s decision-making, which resulted in the first 20–25 minutes of deliberations focusing entirely on the plaintiff’s actions and inactions. This created early momentum for the defense advocates, which emboldened them to get louder and become the dominant voices in the group.
It may be tempting to chalk this up to the perceived randomness of juries, but such a view would be shortsighted. This is where being a debate coach comes into play. The attorneys, especially in closing argument, can exert considerable influence over the starting point of the discussion in deliberations. There are a few specific ways to accomplish this. First, explicitly tell jurors in closing argument where they should start their discussion when they get back to the deliberation room. It’s a very simple tactic but can also be very effective. Jurors desperately want guidance on how to do their job. Jury duty is a foreign experience to most, so jurors are open to persuasion on how to do their job. Be direct about it, saying something as straightforward as, “when you go back to deliberations, the first thing you should talk about as a group is X.”
Secondly, attorneys should help jurors understand why it makes most sense to begin on that issue. If jurors have a sensible reason to start the discussion on a particular topic, they are more likely to follow that advice. In the contributory negligence case we previously mentioned, the jury instructions gave us the reason for them to jump directly to contributory negligence. The jury instructions made it clear the defense would prevail if jurors assigned more than 50% of the fault to the plaintiff. In that case, the defense attorney could argue it makes the most sense for jurors to start their discussion on the third verdict form question about the plaintiff’s negligence since their job is done if they find the plaintiff more than 50% at fault. The defense makes a sensible efficiency argument for skipping ahead on the verdict form.
Thirdly, in the closing argument mimic the order in which jurors should deliberate. If the attorney wants jurors to begin their discussion in deliberations on a particular issue, the attorney should begin the closing argument on that topic as well. This performative mimicking can be very effective. Years ago, we worked on a significant matter where liability hinged on a seven-factor test. We knew from our mock trials that jurors typically adopted a numerical approach where they found in favor of the side that won the most factors. The problem was the jury instruction on the factors was explicit that the case should not be decided on who won the most factors since it was up to the jurors to weigh each factor in the context of the case. This meant we could not explicitly instruct them in closing to take the tally approach during their deliberation. Instead, we communicated through attorney performance that they should do so. In our closing argument, we went through each factor individually, showed why our client should prevail on that factor, and then used a repetitive slide after each factor to tally them all up. We never once said they should tally up the factors, but we implicitly did so in the structure and visual presentation of the closing argument, which proved sufficient as they found in our client’s favor and post-trial interviews revealed they took the tally approach.
A final strategy for influencing the starting point of the discussion in deliberations is through the use of exhibits. In most trials, jurors go back to the deliberation room with an absurd number of exhibits. We have seen many instances of trials where more than a thousand exhibits were put into evidence. Jurors are never going to review a thousand exhibits. In one case where there were approximately 1,200 exhibits, we interviewed jurors after the verdict and discovered they reviewed only eight exhibits over the course of their two-day deliberations. Generally, attorneys should highlight three to five of the most important exhibits. This is sage advice for any closing argument, but we will amend it here and suggest attorneys go a step further and tell jurors to begin their deliberations by taking a look at three to five carefully selected exhibits. In cases where the exhibits tell the story of the case, the attorneys should take advantage of the opportunity and tell the jurors that there are three to five exhibits that tell them everything they need to know about the case and, accordingly, they should begin their deliberations by examining those exhibits.
The well-known band, The Smashing Pumpkins, once wrote an obscure song titled, “The End is the Beginning is the End.” That song title seems to capture the importance of starting points in jury deliberations. Where they begin has incredible influence on where they end. The starting point impacts momentum, the social dynamic of the group, and motivation to fight for case leanings, among other things. Trial attorneys need to step up and realize they can exert considerable influence over that starting point as they plan and prepare for their closing argument.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
