YourABA July 2012 Masthead

Jurors seem distracted? Try these attention-getting strategies

Benjamin Yale

Trey Cox

Today's juror faces information overload. Research shows that people now process more information in a 24-hour period than the average person 500 years ago would have come across in a lifetime, according to Trey Cox, author of the new book Winning the Jury's Attention: Presenting Evidence from Voir Dire to Closing.

The juror “can barely focus on the important things in his own life, much less those in your case,” Cox says.

Even more challenging, Generation Y jurors are perpetually distracted. They were raised with a TV in every room, smartphones in their pockets and iPods at their ears, Cox says.

What that means to lawyers is that connecting with and engaging jurors has become more difficult than ever. Cox spoke with YourABA about the best ways to get and keep jurors' attention in order to communicate core ideas.

What are some of the biggest mistakes lawyers make when seeking to win a jury's attention?

Lawyers are not mindful of jurors' time. Jurors have lives, wives and jobs to get back to. Every minute that they are in trial, they cannot lead the rest of their lives. And though jurors take their duties seriously and will work hard to resolve your case, they do not want their time to be wasted. Too often we, as trial lawyers, waste their time with repeating the same information and asking the same questions. This turns jurors off.

You say that personal credibility is important. What can lawyers do to earn that credibility from jurors?

We as trial lawyers have to show that we are proficient and efficient at what we do. Jurors flyspeck your every move for clues to your credibility, competence and trustworthiness. If you appear lost and confused or labor over the admission of exhibits, neither you, nor your abilities, nor your trustworthiness, will rate very high with the jury. On the other hand, if you move through the evidence efficiently, with confidence, and demonstrate a mastery of the facts, the jury will surrender its attention to you because you are a leader in the courtroom.

You emphasize the importance of being organized and providing a road map for jurors. What should that road map look like, and why is it important?

Before the jury is assaulted with 15 witnesses they have never met, the numerous moving parts in a real-estate development, the complications of the statute of frauds, as well as any diversionary tactics employed by the defense, jurors need to be oriented in time and space and taught what is really important in the case and how you plan to organize the information for them. Establish a routine and give oral signposts or demonstrative road maps to explain what you are doing and how you intend to proceed. After having a new witness introduce himself to the jury, follow up with a broad question like, “Mr. Smith, can you tell the jury what your relationship to this case is?" Answer: “I am a personal friend of the plaintiff and heard the defendant promise one-half of the profits in the Casas del Sol development to the plaintiff.” Right at the start, the jurors now know this witness's relationship to the parties and the general subject matter of his testimony. The more comfortable the jurors are with their surroundings and where you are heading, the more they can focus and listen to your message.

What is “chunking,” and how can it be used to help a lawyer reach the jury?

Jurors can only handle so much information at one time. For the same reason that books have chapters and baseball games have innings, the information presented at trial and content needs to be broken up into manageable parts. When it comes to your message at trial, the salesman's rule of KISS should apply: “Keep it short and simple.” When a message becomes too complicated for jurors to understand, they will not try harder or blame themselves. Instead, juror overload will rear its dazed and confused head. Jurors' minds will shut you off. Your goal should be to distill your message into manageable and memorable chunks.

Why is using multimedia a good way to get a jury's attention?

Science supports the commonsense conclusion that multimedia evidence makes a presentation more memorable. For example, McGraw-Hill published the Weiss-McGrath study, which compared retention of information presented in three different formats: orally only, visually only, and visually and orally. After 72 hours (the length of a short trial), the group presented information solely by oral means retained only 10 percent of the information. The group receiving information solely by visual means retained twice the information but still only 20 percent of the total material presented. Those who received the information both orally and visually retained 65 percent of the information presented. The study reinforces the idea that individuals presented with both visual and oral information understand better and retain longer the information you present. In addition to simply making the subject matter more interesting, showing the jury a diagram, chart or animation lends credibility to what is said by the lawyer or witness.

Could you share some tips for making themes and ideas “stick” with jurors?

By “sticky” I mean the same concept that fascinates Chip and Dan Heath in Made to Stick, which describes the qualities that make certain ideas stick in people's minds. The book continues the idea of “stickiness” popularized by Malcolm Gladwell in The Tipping Point, seeking to explain what makes an idea or concept memorable or interesting. The book's outline follows the acronym SUCCES (with the last s omitted). Each letter refers to a characteristic that can help make an idea “sticky.”

  • Simple: Find the core of any idea.
  • Unexpected: Grab people's attention by surprising them.
  • Concrete: Make sure an idea can be grasped and remembered later.
  • Credibility: Give an idea believability.
  • Emotion: Help people see the importance of an idea.
  • Stories: Empower people to use an idea through narrative.

If our themes, arguments and evidence create a lasting, visceral impression, they will change jurors' opinions and behavior. Use multisensory techniques to bring your ideas and themes to life and stick with the audience long after you sit down. Visual aids work, so use them.

Describe the “jolt principle” and its importance.

It is difficult to sustain high levels of interest in any topic for an extended period of time. We all need to take a short break to relax and refocus our thoughts. Most successful TV shows are designed with this in mind and contain carefully planned peaks and valleys. The peak of each mountain indicates a moment of emphasis—a moment of dramatic tension. The polar opposite of this tension is the valley, a moment of relaxation. Without these peaks and valleys or tension and relaxation, a TV show will appear to be monotonous and boring. The same is true for our trial presentations.

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