Often it is as if lawyers and jurors come from different planets. Most lawyers come from a planet I’ll call Wordland. It’s a place where inhabitants rely on words, logic, checklists, and other linear processes in order to learn, make decisions, and persuade others. While some jurors also come from Wordland, the majority do not. Instead, most jurors come from a different place, where people rely less on words and more on intuition, emotion, a basic sense of fairness, and common sense in order to learn, make decisions, and persuade others. The language of Wordland is very foreign to them.
Lawyers tend to be very good at asserting arguments that convince the handful of jurors in the box who are from Wordland. Persuading this group, by itself, is never enough to win a case. To prevail at trial, attorneys need a unanimous verdict, or at least one with a supermajority, when, typically, more than half of all jurors in the box are not from Wordland. These are the jurors who relate to Ella Fitzgerald’s lament in Lullaby of Birdland when she sings, “Never in Wordland could there be ways to reveal in a phrase how I feel.”