W. Scott O'Connell
Law school prepares attorneys for many things, but thinking like an average juror is not among them. Understanding how jurors will evaluate the facts and legal issues in your case is mission-critical information. Framing facts and legal issues properly is essential for success. Knowing the frames that work and those that don’t may determine whether you win or lose. Detailed below are some practical considerations on how to determine the optimal frames for a jury verdict in your favor.
1. Knowing What You Don’t Know
Thinking critically at all times about proving the elements of a case is what trial lawyers do. Too often, smart attorneys can become enamored with facts or issues that are simply too dense, complex, or inaccessible for typical jurors. In every case, there are limits on what you can expect the jury to consider, evaluate, process, and decide. Jury research helps define those limits. It is dangerous to assume how a jury will process facts and issues. Observing that process through a focus group of prospective jurors—a surrogate jury—takes away the mystery and helps the trial team focus the presentation of the case.
2. Learning What You Don’t Know
Focus group research with mock juries is an invaluable tool. There is simply no substitute for getting real reactions from a surrogate representative jury to the facts, witnesses, evidence, demonstrative aids, and arguments. Discovering jury biases, attitudes, and expectations about the case, the parties, the claims, and the evidence informs you on the packaging and presentation of the case.
All jurors have underlying biases, attitudes, and expectations. Some are so strongly held or pernicious that there may be a basis to challenge the seating of the prospective jurors. Others are less so but may become important drivers during the deliberation process. These biases, attitudes, and expectations are important to understand because they often influence in material ways whether a representative juror will accept your theory of the case. The ability to persuade is informed by these biases, attitudes, and expectations. This is often the space in which tough cases are won or lost.
A baseline inquiry that informs on all presentation decisions is how the surrogate panel perceives your client. What juror biases and expectations need to be addressed in the presentation of the case about your client and the products or services it provides? If you are defending a financial services company in claims arising from a consumer transaction, for example, it is helpful to know what level of engagement and interaction jurors believe is necessary for the company to have acted reasonably. Answers to this may inform how much you address the atmospherics of the company’s relationship with consumers as opposed to the actual conduct at issue. Knowing the starting point of juror attitudes informs you on how long a journey the burden of persuasion may be.
3. Discovering What the Jurors Want to Know
Focus group reaction to your facts, theories, evidence, and witnesses is by itself invaluable. But equally important is learning from the mock panel what they needed to hear, see, and understand to be persuaded. Pushing the mock jury from mere reaction about your case to active thinking about what may have helped in the persuasion process often yields powerful insights. Asking jurors about what was missing from the presentation helps identify the evidence and witnesses that may help you to persuade a real jury. The absence of gap-filling evidence or information that jurors really want to hear indicates that the trial team needs to take on and inoculate against the omission.
4. Using What You Learn
Once the biases, attitudes, and expectations are unearthed and you have the benefit of juror insights into what information would affect their view, trial counsel is best equipped to structure the presentation of witnesses, evidence, and demonstratives. This information helps bring into focus essential information for successful persuasion. The information provides a useful filter to determine what witnesses, evidence, demonstratives, and subjects must be part of your effort to persuade. Further, it helps the trial team tailor instructions and legal arguments to meet the burden of persuasion.
Rigorous application of the jury research results focuses the case and helps to ensure that all facts and issues are reviewed through the proper framework. This information obtained from the jury research should affect all decisions about the case. Every exhibit, witness, demonstrative, and argument should be evaluated for its ability to meet the bias, attitude, and expectation identified. Through consistent review of the case through the lens of the jury research, the trial team can focus its themes and theories and through consistent messaging meet its burden of persuasion.
5. Practical Considerations for Success
Understanding as early as practicable juror attitudes toward your evidence and themes pays enormous dividends throughout the life of the case. The alignment resulting from effective jury research sharpens legal arguments, discovery, and the risk analysis of the case. So test early.
Conduct your focus group research with the assistance of trained professionals. In order to get credible, useable information, it is important that the trial team not embed biases in the process. Poorly executed research sessions yield little useful information and indeed may provide false comfort on pivotal issues. Invest in professionals who can structure a process that yields honest feedback on what works and what does not.
Make sure that relevant decision makers observe the focus group process. The alignment benefits referenced previously are enhanced when client decision-makers experience—with the trial team—the result of the research sessions.
Use the research session to develop the profiles of jurors particularly receptive to your evidence and themes. Conversely, identify the profiles that are particularly problematic. Use the research sessions to identify ways in which these helpful or harmful jurors may be affected. Work with the surrogate jurors to test graphics that help clarify and simplify your case. Understanding what reduces confusion, promotes understanding, and effectively strengthens your case is invaluable. Test different levels of complexion to ensure the graphics help rather than detract. Finally, let the team that is serving as your opposition work with your graphics in the research session. Skilled trial lawyers can often turn an otherwise helpful graphic into one that is quite harmful.
Finally, make sure that the entire trial team checks its ego at the door. The market research process is designed to teach things you need to know. It’s hard to learn new things if you believe you already know everything you need to know.
W. Scott O’Connell is the vice chair of Nixon Peabody’s Litigation Department. His practice focuses on representing integrated financial service companies and health care systems in federal and state court litigation and before regulatory agencies. A major focus of his practice is class action defense. He has particular trial experience litigating complex financial relationships between parties, unfair and deceptive trade practices claims, corporate control issues including corporate freeze-outs, lender liability, and civil RICO claims.
