By Thomas M. O'Toole, Ph.D., and Kevin Boully, Ph.D.,
By the time you see it, it might be too late. Set aside your feelings about Donald Trump and take yourself back to his run-up to victory in the 2016 Presidential election. What was his appeal to millions of Americans? Why did so many people want what he offered? The answers are complex and multiple, but among them is a key to understanding how jurors feel today about trial advocacy and persuasion tactics of yesterday. Mr. Trump did the opposite of what so many people had tired of and no longer wanted. Many of his independent or moderate supporters described how much they liked that he spoke and sounded unlike the other candidates and “spoke his mind.” People were tired of the prepared lines and everything else that comes with politician-speak and Donald Trump offered a refreshing alternative.
People have long tired of the same ol’ same ol’ in many respects of American culture. A new voice is appealing. Well-executed disruption works. The psychological concept of pattern interrupt is a common persuasion tactic in applied sales and marketing (among other fields) precisely because it acknowledges the tired and engages something fresh. It appeals to unchangeable human behavior. By the time you see it, it might be too late. The pattern has changed but you have not changed with it.
Television commercials are also a great example of how persuasion must evolve. In the old days of commercials, the sales technique consisted simply of describing the features of the product. But people grew used to this trope and their defenses went up as Jake Teeny, a marketing professor from Northwestern University told The Atlantic in 2022. Commercials then shifted to subliminal persuasion where the sales pitch was the imagery of happy, cool, and attractive people enjoying the product. Look at how great life is when you use this product! But as the same Atlantic article describes, people grew resistant to this tactic as well. This is nothing new in persuasion.
Research consistently shows an audience’s defenses to persuasion go up as they become aware someone is trying to persuade them. Cue what The Atlantic calls “the meta-commercial,” or commercials which openly acknowledge what they are trying to accomplish. A great example is the Liberty Mutual commercial where a narrator announces that, “Research shows that people remember ads with young people having a good time, so . . . here’s a pool party.” The commercial then cuts to an insurance-themed pool party with a catchy song. The goal of these “meta-commercials” is to avoid activating the audience’s persuasion defenses — to surprise the audience by violating their expectations of persuasion and to create a new, positive association with the persuasion effort itself.
In our evolving post-COVID research, we observe many juror behaviors. Some remain consistent with the past, but many illustrate how jurors are rapidly changing and how the jury economics of a persuasive trial presentation are also new and different. The last decade has brought about dramatic cultural changes that have impacted views of every institution in our society. Pew Research studies have consistently shown that distrust and skepticism is the American way these days. This has important implications for the courtroom. Jurors enter the courtroom with distrust and are better and better at recognizing attorney tactics, which makes such tactics less effective than in the past. In this column, we describe four key things that jurors have tired of and provide associated strategies for adapting your trial presentation to avoid today’s pitfalls.
Jurors are tired of your words. More specifically, jurors are tired of your adjectives and your descriptions of what the evidence is and what it means. People want to see to believe. They want to be shown not told. This element of juror persuasion has been evolving for the past few decades, but with today’s decreased institutional trust (yes, including lawyers!), the death of expertise, and the fading authority of expert witnesses and scientific data interpretation, jurors are more interested in seeing the evidence and deciding for themselves. They don’t want to be told what’s what, they want to be shown what happened and they’ll decide what it means. For many trial lawyers, this feels terrifying. That fear is preventing them from changing as fast as jurors have already changed. Telling them in the opening statement, for instance, that a witness is not trustworthy or that the defendant copied a patented design is not worth the breaths it takes to say it.
Replace strategies of eye-popping characterization with three more effective strategies: (1) sequence strategically so the order of facts communicates the adjectives you would have used and allows jurors to assign the characterization for themselves; (2) tell microstories that put people in places with problems they must overcome as a way of showing jurors who they are instead of telling them; and (3) engage in “descriptive” discovery and depositions where you develop the words and details you need through your attention to scenes, moments, and inflection points through well-developed witness statements (e.g., deposition answers), which allows you to mine adjectives from witness testimony so you are not the author but the director of the show that jurors can trust with their own eyes.
Jurors are tired of assumptions. Okay, maybe jurors aren’t overtly aware of all the assumptions trial teams make about them and their behaviors, but trial strategy has moved far-past relying on old assumptions about juror demographics, juror attention, and what jurors really want and need from a trial presentation. Demographics are not particularly useful to jury consultants. That is particularly true today. Conservative, older men are not who they used to be. Not all young jurors are hip to award nuclear verdicts. Purple hair might not mean what you think purple hair means. Jurors with full sleeve tattoos are neither the same nor necessarily different than your key witness whose tattoos you might want to hide under a long-sleeve shirt. This challenge starts in voir dire where jurors are more assertive than ever to call-out lawyers and even judges who may make incorrect assumptions about their gender, their sexuality, their spouse, or the feelings they are trying to communicate in voir dire.
Attorneys should approach trial with great curiosity and interest, more than they approach it with answers and declarations solving every anticipated problem. The best trial lawyers today want to hear what jurors have to say in voir dire. They want jurors to tell them what is troubling about their case. They want jurors to feel comfortable enough to disclose every last detail. Approach key witness testimony with the same openness to what opposing witnesses may say during trial that requires adaptation and a change to the plan. Listening better requires attorneys both be more willing to adapt and more capable of adapting because they have more information with which to make changes during trial. And stop assuming juror demographics are a reason for concern or a peremptory strike. Demographics are what attorneys rely on when they don’t ask good voir dire questions or don’t listen to jurors’ answers.
Jurors are tired of screens. Okay, this is a complicated issue. Many jurors have panic attacks if courts require them to give up their cell phones. They need their screens. Indeed, some courts are providing dedicated time and space for jurors to check their cell phones with the intentional goal of achieving better juror attention outside of those technology checks. At the same time, we are seeing greater juror interest and success with trial presentations that mix media and use purposeful “physical” demonstrative evidence, models, and interactive illustrations and media.
The key here is juror participation and involvement. They want to feel and be involved. They don’t want to be static recipients of a canned presentation. It’s helpful to maintain an immersive visual strategy that allows jurors to sate their information hunger at all times, but that strategy should not be completely dependent on prefabricated PowerPoint slides. Use mixed media, from physical models and objects to physical boards and more. Wherever possible, use flipcharts and interactive “fill in the blank” visuals (even the old school “overhead project” or “ELMO”) precisely because they allow jurors to participate in the creation of the material and watch it develop. PowerPoint and other technologies allow for interactive elements, too. They are simply underutilized or poorly executed in most trials. The most important goal here is participation. Find ways to continue to interact with jurors in a conversation about your case. Stop doing what they perceive as telling them what to think about and what to do with the evidence. And for the love of God, don’t be the attorney that bullet points them to death with text-heavy, boring slides that remind them of every terrible class or meeting they have ever been forced to sit through.
Jurors are tired of the lack of authenticity. Distrust and skepticism rule the day and the jury room is no different. Jurors bring expectations of attorneys to the courtroom. They expect them to manipulate their thoughts and emotions and are on the lookout for such tactics, undermining their effectiveness. In recent years in our jury research, we have noticed how effective it can be when attorneys violate jurors’ expectations. Working with a corporate defendant in an admitted liability case recently, we encouraged the defendant to pick a damages category and offer more than the plaintiff had requested, and we tested it in a mock trial. We chose future loss of earnings since the plaintiff was only asking for $150,000 and told jurors we thought that might not be enough to allow the plaintiff to fully recover and recommended the jury award him $250,000 instead. The $100,000 difference was insignificant in the larger picture of the total damages the plaintiff was requesting, but the impact was extraordinary. Jurors were shocked that the defendant would offer the plaintiff more than was requested.
This violation of their expectations shook them of their common belief that this was just another corporate defendant trying to get out of the lawsuit having paid as little as possible. It gave the defense immediate credibility that opened jurors to its alternative defense framework, resulting in lower damages across the board. We point to this example, not only because it violated expectations, but also because it was words backed up with action. Too many defense attorneys in admitted liability cases acknowledge the defendant screwed up and talk of wanting to award the plaintiff “a just amount,” only to follow it with what jurors see as a “lowball” alternative. When that happens, any sense of authenticity disappears as jurors realize this is just the defense tactic they expected at the start of trial.
Take a minute to evaluate your assumptions and your default behaviors and look for ways to surprise jurors in a positive way by surprising yourself with new ways to advocate.
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.
