How Can Litigators Make a Connection with the Jury by Emphasizing Core Values?

One of my most vivid memories from my first year as an associate is helping a partner prepare for an opening statement. As the most junior person on the team, my role was to support the partner by drafting the first cut of the statement and assisting in court, as needed.

The firm’s midtown Manhattan offices were too far from the courthouse for us to walk there. To my surprise, the partner leading the team insisted that, rather than take a cab, we instead take the subway. My colleagues and I stumbled and fumbled as we carried all of the team’s litigation bags and demonstratives down dozens of steps and through the subway turnstiles. It was not easy, and I remember being quite irritated by the inconvenience of it all. During the subway ride, I asked the partner why we did not just take a cab. I expected that he would tell me that the subway was faster and more direct and that he was not inclined to sit in Manhattan traffic. But that was not his response. Instead, he said, “Normal people take the subway. And our jury will be comprised of normal people. To persuade people, we need to know them, and that starts by sharing the same spaces.”

I did not give his words much additional thought at the time. But years into my career, I realized that what he was trying to convey to me was that to persuade, we must find common ground. At trial, we must make a connection with individuals who are not lawyers, unlike in most of our day-to-day interactions.

Identifying the Core Value and Presenting It

Every trial lawyer knows that one of the most critical tasks at trial is to connect with the jury. It is the jury that ultimately determines our clients’ fates. And it is for this reason that many practitioners believe that the jury selection process is a critical aspect of a trial.

But the odds of getting the exact jury you want are slim. Inevitably, there will be individuals on the jury with whom you or your client do not have a natural affinity for one reason or another. In these circumstances, it is important to remember that there are core values or community principles that bind us all and about which we can generally agree. By developing a narrative arc that emphasizes our shared values, a trial attorney can connect with, and ultimately persuade, jurors of all kinds.

A core value is a principle that guides a person’s belief system. It influences our views of right and wrong, and it helps us differentiate good from bad. Core values root us in who we are and affect the way that we interact with one another and function in society.

First things first, a trial attorney must identify the relevant core value in the case. The core value answers the question of why should the jury care? To be clear, that question is not always easy to answer. As many commercial litigators know, jurors often do not find breach of contract disputes or disputes about business torts particularly compelling. But honing in on a value that most people agree on can make commercial disputes more relatable. For example, in a tortious interference dispute, the relevant core value for the plaintiff may be that we cannot permit underhanded behavior that creates an unfair system. For the defendant, perhaps the value centers on the need for a free market. Whatever the value, counsel should go into the trial knowing what it is and weaving it into each stage of the trial, from jury selection all the way through the closing argument.

Jury Selection

In instances in which the court permits counsel to conduct voir dire, counsel can take the opportunity to frame the thematic backdrop against which prospective jurors should consider the case. This is the first opportunity for effective counsel to introduce the shared core value at issue.

Consider the hypothetical of an alleged burglar on trial. One possible shared value that the prosecution can emphasize is that, as we can all agree, we have a right to feel safe in our homes. In addition to some of the more standard jury selection questions, counsel can preview that theme by asking, “Have you ever been made to feel unsafe in your own home?” This type of question will get the prospective jurors thinking about the importance of the value even before the opening statement.

Opening Statement

All experienced trial counsel will use the opening statement to foreshadow evidence and to front any weaknesses in the case. But at this early stage, counsel should also state the shared value, elaborate on it, and connect it to the forthcoming evidence.

Continuing to use the burglary trial as an example, an effective opening statement will not only explain how the evidence will demonstrate each element of the crime but will also explain how burglary offends our shared value of wanting to feel safe in our homes.

Witness Examination

Trial attorneys should not make the mistake of thinking that the opening statement and closing argument are the only opportunities to connect their case to the core value. After an attorney determines the witnesses’ evidentiary functions, he or she should then consider the direct or indirect emotional connection that those witnesses make to the shared value and should elicit responses to this effect.

For example, testimony from the homeowner who suffered the burglary about the effect it had on her overall sense of safety would likely be powerful, as would testimony from the responding police officer about the effect the burglary had on the neighborhood at large.

As another example, consider an employer being sued for terminating an ineffective chief executive. If your client is the employer, shared values that you might want to stress are that we all work for our reward and that nobody should get a free lunch. Eliciting testimony stressing principles of hard work and proven results supports those values.

Closing Argument

In addition to tying together all of the evidence entered during the trial, the closing argument is the time for counsel to explain how the evidence affirms or cuts against our core values. Remind the jury about the shared values that you agreed about at the start of the case.

In the case of the employer defending a claim against its former chief executive, you can remind the jury that “we agreed that we all work for our reward. But here, plaintiff tries to get benefits to which he is not entitled, and giving people rewards in excess of what they have earned does not help anyone.”

Conclusion

Connecting with others can seem difficult, especially in present times, when there are so many social and political issues that cause division. Indeed, there have been times when I have tried cases before juries and questioned whether I had anything in common with the jurors. But then I remember what my colleague said to me years ago on that subway ride to court. So go ahead, take the subway—or do whatever is necessary to push you beyond your everyday interactions and familiarize yourself with people of varying backgrounds and perspectives. By doing so, you can identify shared values that will serve you well the next time you find yourself in front of a jury.