The Attorney Perspective
Interim statements present a unique opportunity to underscore critical evidence, immediately respond to arguments advanced by the opposing party, and influence juror perceptions in real time. They allow attorneys to directly frame the evidence at times other than during opening statements and closing arguments. They give attorneys a chance to sum up dense and potentially confusing testimony or highlight crucial testimony that may otherwise get drowned out by multiple days of testimony from several other witnesses. And they provide attorneys with an opportunity to address potential misunderstandings and respond to attacks from the opposing party at crucial moments. Because interim statements allow attorneys to speak directly with the jurors, there is an opportunity to build on the degree of engagement initiated in opening statement or to rekindle engagement in those who may have tuned out. The many advantages of interim statements make them an essential tool for attorneys seeking to maximize their trial advocacy.
The Seventh Circuit American Jury Project (“Seventh Circuit Project”) provides the most comprehensive insight into the benefits of interim statements from the perspective of attorneys. The Seventh Circuit Project was headed by a commission consisting of Seventh Circuit and District Court judges, as well as seasoned trial lawyers and prominent law professors from the jurisdiction. Additionally, the commission received input, advice, academic evaluation, and technical analysis from several subject-matter experts. Conducted over two phases across a 30-month period between October 2005 and April 2008, the Seventh Circuit Project tested the utility and advantages of interim statement in 17 jury trials. Employing questionnaires that used both quantitative and qualitative assessment techniques, the Seventh Circuit Project received input from over 400 jurors, more than 80 attorneys, and 22 current and then-federal judges. The Seventh Circuit Project published a report of its findings.
Enhancing Juror Comprehension and Facilitating Recall
One of the most critical aspects of trial advocacy is ensuring that jurors understand the parties’ claims and defenses and how the evidence does (or does not) support them. Jurors often face challenges when processing large volumes of complex testimony that must be presented piecemeal. Interim statements allow attorneys to bridge these gaps, offering real-time explanations or summaries that tie what are otherwise individual pieces of evidence to the overall plaintiff or defense narrative. The result? An increase in juror comprehension.
Interim statements enhance juror comprehension by allowing attorneys to put evidence into context in real time and provide the opportunity to periodically reinforce that framing of the evidence as the trial progresses. For example, an attorney might deliver an interim statement to clarify complex expert testimony, immediately linking it to earlier fact witness testimony and broader case themes. The thinking is that, when supported by interim statements, jurors are better able to understand such testimony in the moment and to recall it accurately during deliberations.
The attorneys who participated in the 17 jury trials that the Seventh Circuit Project studied believed that interim statement allowed them to better organize and explain the evidence for the jurors. These attorneys’ perceptions match jurors’ responses. More than 90% of jurors reported that interim statements were helpful when used to detail evidence before it was introduced or to summarize evidence that was recently introduced, both in terms of having a better understanding of the evidence and a better recall of the evidence during jury deliberations. Judges observed these same benefits, too. Over 85% of the judges who oversaw the 17 jury trials featuring interim statements believed that the use of interim statements increased the jurors’ understanding of the evidence. Interim statements thus provide attorneys with a valuable opportunity to aid in juror comprehension by periodically contextualizing testimony when it is still fresh in jurors’ minds, thereby preventing jurors from losing sight of key facts during what would otherwise be long periods of listening to witnesses’ testimony without any guidance.
Organizing and Highlighting Key Evidence
The ability to organize and call attention to key evidence from different portions of the trial is seen as one of the primary advantages of interim statements. Unlike opening statements or closing arguments, which may be weeks or months apart, interim statements afford attorneys flexibility. Attorneys who participated in the Seventh Circuit Project trials saw interim statements as an opportunity to help jurors organize and make sense of the evidence. These attorneys also viewed the statements as a chance to highlight crucial evidence. By using interim statements to provide signposts that will guide jurors through a long trial, attorneys can build a “stickier” narrative that has more staying power.
Maintaining Juror Engagement and Preventing Juror Fatigue
Trials, particularly complex and protracted ones, test the focus and resolve of everyone in the courtroom—especially jurors. The legal system asks a lot of jurors. They are forced to spend time away from their work, often without pay, and they may need to commute long distances to the courthouse, causing them to lose time with their families. Jurors are expected to maintain their focus on cases that regularly have rather dry, unexciting subject matters and feature courtroom presentations by attorneys that are nothing like what they see on television, all while their personal and professional obligations pile up. These burdens can result in juror fatigue, which can lead to disengagement, missed testimony, and poor decision-making, all of which affect the outcome of a trial.
Seasoned litigators understand the burden that trials place on jurors, particularly those that last for more than a week. Interim statements act as a sort of cognitive break. Rather than watching one witness and then another take the stand (or, as is more frequent these days, watching one videotaped deposition after the next), day after day, jurors are treated to a presentation, possibly with demonstrative slides, introducing an upcoming witness or summarizing the testimony presented by one or more previous witnesses. The slides and arguments are not exchanged by the parties ahead of time, but objections and side bars can occur if there are issues, just as in closing arguments. And, as with closing arguments, the jurors are instructed that the interim statements are the attorneys’ arguments, not evidence. As the Seventh Circuit Project put it, interim statements “break up and make more interesting and informative the parade of evidence.” Allowing jurors to digest small summaries of the evidence at regular intervals, provides them with an opportunity to mentally regroup and contextualize evidence incrementally, rather than being overwhelmed at the start of deliberations when they are handed a large stack of papers containing the jury instructions and all exhibits introduced at trial.
Experienced trial attorneys are keenly aware of this challenge. To combat it, attorneys can use interim statements, with a court’s blessing, to break up the monotony of the never-ending “parade of evidence” with brief explanations from trial counsel that refocus the jury’s attention by spotlighting key information. The Seventh Circuit Project demonstrates the benefits that interim statements provide. Jurors overwhelmingly agreed that interim statements helped keep them focused on the evidence and helped make the evidence more interesting and the trial more engaging.
Granting Strategic Flexibility
Interim statements offer attorneys a unique chance to adjust or refine their strategy in real-time. No two trials are the same; live witness testimony is inherently unpredictable, and an attorney’s case may benefit from quickly pouring cold water on the testimony of a hostile witness. Perhaps the opposition presents a narrative likely to mislead or confuse the jury. Interim statements afford an attorney the opportunity to re-focus jurors’ attention without waiting for closing arguments. Attorneys can use interim statements to dynamically adapt their strategy, to reinforce themes, to focus jurors on the testimony of an upcoming favorable witness, to pre-treat the testimony of an upcoming adverse witness, and more.
Connecting With Jurors
From a trial advocacy standpoint, interim statements offer attorneys a key asset: more opportunities to connect with jurors. Attorneys must present as credible, and interim statements can be strategically used by attorneys to slowly build that trust with jurors during the course of the trial. By speaking directly to jurors more frequently and offering easily digestible pieces of argument on the evidence, attorneys can position themselves as reliable guides for jurors.
Increasing Trial Efficiency
Trials are expensive and risky. And the longer the trial, the greater the risk of juror fatigue. Efficiency is therefore an important consideration for attorneys, and interim statements help on that front. Interim statements contribute to an efficient trial by streamlining the presentation of evidence. Enabling attorneys to preemptively address key aspects of upcoming testimony can lead to fewer objections, while permitting the attorneys to highlight past testimony may result in better-organized arguments. While a judge or attorney may assume that interim statements will slow down the trial, this procedure has proven to have the opposite effect in practice. Data from the Seventh Circuit Project shows that 38% of attorneys saw an improvement in trial efficiency from interim statements, while a mere 4% claimed a decrease in efficiency. Judges shared these sentiments, with 42% of judges participating in the Seventh Circuit Project finding that interim statements increased the efficiency of the trial process, an equal percentage believed it had no impact on efficiency, and only 8% said it reduced the efficiency of the trial. This makes sense: a jury absorbed in the case should result in fewer procedural inefficiencies, such as unnecessary delays due to repeated requests for answers to questions during the trial or requests for clarification during deliberations. Therefore, the data from the Seventh Circuit Project suggests that interim statements also align with the judicial goal of increasing the efficiency of trials.
Addressing Concerns About Misuse
Those who are skeptical of interim statements may be concerned about the potential for misuse. Data from the Seventh Circuit Project should put those concerns to rest. While attorneys who participated were not asked about this subject, not a single judge who presided over any of the 17 jury trials featuring interim statements during the Seventh Circuit Project thought that there were any abuses—let alone significant abuses—by attorneys making interim statements. To avoid the potential for misuse, parties can agree to, or judges can set, clear parameters for the use of interim statements. These can include cumulative weekly time limits, limitations on when they can be made, and guidelines for use of demonstratives and the content they can include. For example, in the Direct Purchaser Plaintiff trial in the In re Broiler Chicken Antitrust Litigation case, Judge Thomas Durkin set a cumulative weekly time limit and instructed that the parties would not be permitted to make an interim statement during a witness’s testimony, even if that witness’s testimony extended beyond a single day.
The Jury Consultant Perspective
The interim statement procedure is more likely to be requested and approved in longer trials involving complex issues, and in that context, the benefits of this procedure from the jury’s point of view boil down to reducing the cognitive challenges and lightening the cognitive load. In post-trial interviews, jurors report that interim statements helped with their tasks in a number of ways:
- Increased their understanding of evidence that involves highly technical and/or wholly unfamiliar fields of expertise;
- Increased their ability to connect the evidence to the abstract legal concepts in the jury instructions and on the verdict form; and
- Increased their retention of the key “take away” points from lengthy testimony that covered a large number of exhibits, or from a series of witnesses addressing the same issues or events.
As one juror put it: “The interim statements allowed the lawyers to try to connect various witnesses’ testimony together to support their case and to clarify what witnesses said that might have been confusing or easily misunderstood.”
Addressing Ambiguity
There are also case-specific benefits to this procedure. For example, by “reading the room,” jurors are usually aware of completely unexpected and significant developments during the trial, but in post-trial interviews (where there were no interim statements) they often report that in such moments they knew something important just happened, but had no idea why, what it meant or what we were supposed to make of it. While those questions can be answered in a closing statement, it may be too late to integrate the intended impact of that development on the jurors’ analysis of the evidence that followed.
The same puzzled “what were we supposed to make of it?” question is often reported when a critical witness must be put on out of order and there has been no opportunity to lay the necessary groundwork for that testimony and the related exhibits
Re-energizing Juror Engagement
In cases where the jurors are fading out due to a heavy diet of videotaped deposition testimony, interim statements can serve as a “wake up” call and an opportunity to list the key points that the jurors may have missed when they zoned out. A juror who experienced that dynamic emphasized this point: “Because there were so many videos, everything that was live was more interesting to us.” He went on to mention the additional benefit of a change in tone:
The jury really enjoyed the interim statements. Some of them were even fun! I remember at least two or three (statements) by both sides that just made the jury smile, and anytime a lawyer gets the jury to smile in a very long trial that is a good thing.
A heated adversarial battle in the courtroom is always exhausting for counsel, but it can also be very tense and tiring for the jurors, making it harder for them to stay focused. An interim statement that adopts a positive tone can re-energize the jurors, as well as help them to see how the subject of a narrow but hotly contested issue fits in with their larger task.
Best Practices for Structuring Interim Statements
How should the interim statements be structured to enhance the jurors’ information processing? Social science research has demonstrated that jurors process information presented at trial by constructing their own narrative. At the outset of the trial each juror begins to construct a broad outline of their own narrative by looking for the answers to basic questions in the competing opening statements: What happened? Why? And what does it mean? They often draw information from both openings to form their own version of the story. And when there are unanswered questions in the competing narratives, jurors often fill in those gaps with assumptions based on their own life experiences. As they listen to testimony and see the exhibits, confirmation bias results in jurors paying more attention to the information that is consistent with their own developing narrative.
This is not to say that jurors decide the case based on opening statements, but rather that the impact of confirmation bias increases the difficulty of influencing jurors’ opinions as the trial goes on. For that reason, the repetition of basic themes and key points in the interim statements will have diminishing returns, or as the juror put it, “oh no, not this argument again.” Those already persuaded don’t need the repetition and those not persuaded by those basic themes and points will need to be reached by taking a different approach.
When the judge allows the attorneys to determine the timing and the length of the statements by allocating to each party a total amount of time to be used when needed, it is possible to reduce the impact of confirmation bias. For example, a statement intended to increase the jurors’ ability to critique the testimony of an opposing expert or critical adverse witness generally has more impact if presented before that witness takes the stand to frame the critical questions jurors should have in mind as they listen to the testimony: “As you listen, ask yourself whether the witness is answering these questions . . .” or “Ask yourself why the witness is not—or will not—answer these questions . . .” Calling out those questions that won’t be answered can encourage the jurors to consider points that they would otherwise tend to downplay or ignore.
On the other hand, a statement intended to increase comprehension and retention of the key points in an expert’s testimony on a highly technical subject is generally more effective if it is delivered right after, or soon after, the expert gets off the stand. This provides an opportunity to circle back to the critical “take away” points that often get lost in the battles over less important points on cross or simply swamped by information overload.
Structuring Scheduled Interim Statements
When the judge limits interim statements to a certain length at pre-scheduled points during the trial, such as 30-minute statements at the end or the beginning of each week of the trial, one way to structure them is to divide the statement into two parts:
- tie the relevant language of the jury instructions to the key points made (or attempted but not made) since the last interim statement, e.g., “Was there a less restrictive alternative to the (defendant’s) restrictions on competition? This was the basic answer from the witnesses . . .”; and
- preview the key points to be addressed by upcoming witnesses by identifying the questions they are here to answer (or cannot answer if adverse) and, again, tie those questions to what jurors will have to decide in deliberations by using the relevant language of the jury instructions.
Remember the adage “less is more”—especially when the format calls for longer and less frequent interim statements. While it is tempting to stuff as many words as possible into the time allotted, focusing on two or three points will increase the potential for having an immediate impact as well as the jurors’ ability to retain and repeat those points in deliberations. Replacing bullet points with a strong graphic or visual image to reinforce those points can also significantly increase the rate of retention. A juror interviewed over a year after a long trial was still able to recall a single strong graphic image that was used in an interim statement to discredit a key point in an opposing expert’s testimony.
Best Practices
To maximize effectiveness, attorneys should approach interim statements with the same level of preparation as opening statements and closing arguments. It is essential to identify the key themes and evidence and the witnesses who will touch on those themes or offer that evidence. Then, in conjunction with your jury consultant, plan your interim statements based on the anticipated witness schedule for that week. It is also a good idea to sit down at the end of every trial day and assess whether there is a need and, if so, an opportunity to make an interim statement on the next trial day, weighed against the allotted time remaining for that week. Then, work with your trial graphics vendor to produce demonstratives for use during interim statements to enhance comprehension and retention. It is also important for attorneys to remain flexible and agile, as you may need to make an interim statement with little-to-no advanced warning; perhaps to respond to an opposing party’s interim statement or to address unanticipated, potentially harmful testimony by a recent witness. For this reason, when looking at the witness schedule and planning your interim statements for the upcoming trial week, it is a good idea to consider when the opposing party might make an interim statement and reserve some of your allocated interim statement time to use in case of an unexpected and significant development. These instances also present attorneys with the difficult decision of whether to make an impromptu interim statement and therefore draw more attention to something that the jury may not understand or remember in a week’s time.
Conclusion
The successful use of interim statements during 17 jury trials in the Seventh Circuit Project suggests broader implications for their use in complex cases across the country. Interim statements offer significant benefits in promoting juror understanding, maintaining juror engagement, and enhancing the overall efficiency of trial proceedings. Interim statements are a valuable tool to guide jurors, clarify evidence, and reinforce themes. As demonstrated by studies like the Seventh Circuit Project, the strategic use of interim statements not only enhances juror understanding, but it also helps fend off juror fatigue and improves trial efficiency. Attorneys who successfully advocate for interim statements during pretrial hearings will likely find them to be a powerful way to communicate effectively with jurors and help achieve favorable outcomes at trial. And judges should similarly be willing to adopt them, with nearly 70% of judges who allowed interim statements during the Seventh Circuit Project relaying an increased satisfaction with the trial process. Critically, no judges described a decrease in satisfaction. Moreover, nearly 90% of judges reported that they would permit interim statements in future trials, which suggests that interim statements should expand beyond the Seventh Circuit to other jurisdictions and become a regular practice in complex trials expected to last more than a week. As judiciaries continue to evolve to meet the demands of increasingly complicated litigation and shorter juror attention spans, the findings from the Seventh Circuit Project show that embracing innovative techniques like interim statements will benefit judges, attorneys, and jurors alike.
