April 2015 Bar Bulletin
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April 2015 Bar Bulletin

Challenging Common Beliefs about Persuasion and Jury Deliberations

By Thomas M. O'Toole


There is an important discussion that rarely occurs in the jury persuasion literature, which explains the common gap between persuasive case presentations and effective case presentations. Such a distinction may seem silly, but it turns out to be a critical one.

Specifically, the literature lacks discussion of the actual moment-to-moment interactions in jury deliberations and the give-and-take in the process that ultimately allows a group of overwhelmed and likely confused strangers to take the evidence, testimony, jury instructions and verdict form, and render a verdict. The purpose of this article is to highlight those milestones and discuss how attorneys can influence them.

Conceptualizing an attorney's task as merely persuasion fails to capture the reality of most jury deliberations. The reality is not as simple as jurors being persuaded or not. Instead, the common dynamic is where some jurors are persuaded, some are not, and some are unsure. This creates a unique environment in deliberations that most advice on persuasive technique does not address.

Diversity of leanings in deliberations creates a power struggle. This means that your advocates on the jury need to be more than just persuaded; they need to be motivated and sufficiently armed to wage a battle and exert control over deliberations to drive a verdict in favor of your client.

To train jurors to win deliberations, it is important to understand what actually happens within deliberations. Let's take a look at the actual process and interactions that play out in deliberations. Here are 10 critical moments in the deliberation process, as well as a few tips for how an attorney can influence each moment.

A Foreperson Is Chosen

One older study showed the foreperson accounts for 25 percent of all speaking acts in deliberations.1 This can translate to significant influence.

Attorneys should pay close attention in voir dire and try to identify venire members with leadership traits that make them more likely than others to be elected foreperson. The most consistent indicator is prior jury experience.

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