You’ve put on your witnesses, moved your exhibits into evidence, and delivered your closing argument. The case is now out of your hands. The jurors disappear through the door in the back of the courtroom to deliberate. What are they saying? What are they thinking?
We don’t get to see jurors deliberate in real trials. We might get a faint sense of what happened in deliberations if the judge allows us to question jurors after they deliver their verdict. But even then, it’s a self-selected group of the folks who are willing to stick around and spend even more time with the attorneys who have taken them away from their jobs and their families for days, or even weeks, on end.
We can, however, get some insight into what happens in the black box of the jury room through mock trials. Having participated in numerous mock trials in jurisdictions across the country, I’ve had the opportunity to observe how ordinary people who are being asked to do something extraordinary—to decide issues of major consequence to individuals and corporations—try to tackle the difficult problems put before them. Some common themes emerge.
They want to do what is fair and what feels comfortable within their own moral code. It’s important in preparing your case to appeal to right and wrong, and to explain what is right about your client’s case and what is wrong about your opponent’s case.
A closely related point is that jurors try to follow the law. In every jury deliberation I’ve observed, the jurors pick up the jury instructions and read them to try to understand what they are supposed to do. One of them will inevitably say, “Let’s look at what the instructions say about this.”
It is critical to read the jury instructions early and often when you’re preparing your case. Use them to guide fact development, discovery, witness preparation, and what you say in opening and closing. Emphasizing the key instructions is especially important in closing argument. Refer to the most important instructions by instruction number, and highlight the key language the jury should focus on. Spell out how the law applies to the facts, and remind the jury that they must apply the law as the court has instructed. Sometimes what the law says is different from what a juror thinks is right. But if jurors know that it’s their sworn duty to apply the law, they will take that duty seriously most of the time, and usually they will follow the law.
It’s also important to make sure that the jury instructions are both accurate and as helpful to your case as possible. Most judges will hew closely to form instructions, but sometimes the form instructions are legally wrong, so check them carefully. Form instructions are also very summary. As attorneys, we go deep into the law. We know that there are nuances to the elements of the claims and defenses. But nuance is almost entirely absent from the jury instructions that your jury will use to decide your case. Jury instructions address the issues at a very high level, boiling down the law to the basic elements of each claim and defense, with little explanation of what each element means. Think carefully about whether you should ask the court for a special instruction to help the jury understand the key elements in your case. And be selective and sparing in the special instructions you request, as a court is unlikely to issue special instructions without good reason.
Jurors will also follow the instructions on the verdict form. It’s important to think carefully about the verdict form: It’s the one piece of paper the jury is guaranteed to look at, because they need to fill it out to render their verdict. In your closing argument, help the jury understand what they need to do when filling out the verdict form to find in your favor. Show and tell them how they should complete the form so that it’s familiar to them when they go back to deliberate.
In deliberations, some jurors will emerge as strong advocates for one side or the other. These advocate jurors are often result-oriented. They are convinced that a particular outcome is the right one, and they will try out various arguments to see if they can persuade others to join them and achieve the unanimous consensus that is required to render a verdict. Advocate jurors will also often ask detractors from their position to explain themselves, pushing them not just to state their position but to point to specific evidence that supports their position and to explain how it fits the legal requirements they are supposed to apply (see point 2, above).
Hopefully, when all is said and done, you’ve convinced at least a few jurors not just that you’re right but to advocate for your position. You will want to arm those advocates with facts, law, and arguments they can use to persuade others to join them. Highlighting for the jury multiple different paths that lead to an outcome in your favor can be a very effective way of arming your advocate jurors with ammunition to use in deliberations. But be careful. Jurors also pick up on inconsistencies and will notice if you’re making arguments in the alternative that are inconsistent with one another: “My client didn’t steal the plaintiff’s copyrighted work; but if it did, the plaintiff didn’t come up with anything new, and the work wasn’t worth anything anyway.” I am not suggesting that approach. Instead, couch your arguments as additive to each other: “There are five facts we know that show my client didn’t steal the plaintiff’s copyrighted work,” including that “the work was worthless—it wouldn’t have benefited my client to steal it.”
In mock trials, mock jurors are polled throughout the presentation of the case about what they think. It is not uncommon for someone whose poll responses reflect that they strongly favor one side either to sit quietly or to defer to the consensus once it becomes clear how others are leaning. It’s important in jury selection to try to identify jurors who will not just go along to get along but who will be strong voices for your case in deliberations. It’s also important to try to weed out in jury selection those who will be strong advocates against your position. It is impossible to know ahead of time who those people will be, but a mock jury exercise can identify some juror characteristics that could be particularly dangerous or particularly helpful to your side. Juror questionnaires and questions during voir dire can also be helpful in distinguishing advocate jurors from the rest and identifying problem jurors who should be stricken when you exercise peremptory challenges, if you are unable to strike them for cause.
Jurors are instructed to consider only the evidence presented during the trial, but they frequently mention their own personal experiences and draw on their own personal knowledge during deliberations. In a pharmaceutical case, just about everyone will have experience buying and taking prescription drugs. In a banking case, everyone has some experience with a bank. In a technology case, jurors may have used the technology at issue or something like it. Everyone has heard of the McDonalds’ hot coffee lawsuit, and it frequently gets mentioned in mock deliberations (usually a good sign when you’re representing the defendant—not so much when you’re representing the plaintiff). It’s important to think through the lived experiences that your jurors are likely to bring to bear when considering your case. Tap into what the jurors know. It will make your case more salient and easier to understand. Also, beware of the juror as expert. Some jurors will have experience in or adjacent to the subject matter of the lawsuit. These jurors can derail the focus of jury deliberations and detract from the facts in evidence by voicing their own “expert” opinions in the jury room. This is another issue to look out for when reviewing jury questionnaire responses and in voir dire.
Jurors get bored and zone out. I’ve seen many a juror fall asleep during trial. Even those who are trying to pay attention—which is most of them—can’t follow every detail. They are just getting too much information thrown at them all at once, and they can’t absorb it all. There is usually at least one note-taker who studiously attempts to write everything down. That may sound encouraging, but I’ve seen jurors in mock deliberations read authoritatively from notes that got the facts completely wrong (see point 7 below).
As an advocate, it’s your job to help the jury understand what is important. In opening statement, that means highlighting for the jury the key pieces of evidence they’re going to hear during the trial. In witness examinations, that means asking questions that telegraph the importance of key pieces of testimony or key documents: “Why was that important?” “Did I hear you correctly that . . . ?” In closing argument, that means underscoring the most important evidence that came in at trial, telling the jury that it is important (“And this is key. . . .” “One of the most interesting things Ms. So-and-So told you was. . . .” “If you remember nothing else, remember this: . . .”). And it means explaining why the evidence is important (“Why does that matter? Because. . . .”).
Another trick is to group things in threes. For whatever reason, it’s easy to remember things when they come in threes. Maybe you have 10 things to say, but think about how to break that down into 3 broad topics, and then into subtopics also by threes. Give the jury bite-sized pieces of the case, which they can digest more easily.
Watching a jury deliberation is terrifying. Jurors are trying hard to do the right thing, but some of them get the facts wrong. Some of them get the law wrong, even when they have the jury instructions in front of them and are reading them out loud. I’ve seen jurors add zeros to the end the damages number proposed by the plaintiff’s expert. I’ve seen jurors declare that critical events in the case happened on dates that are completely wrong. I’ve seen them interpret witness testimony in a way that is exactly the opposite of what the witness said. This is terrifying to observe and can lead to a deep sense of helplessness and despair. The good news is that if you have done your job well, someone on the jury usually corrects the record. Which brings us back to points 3 and 5 above: If you empower your advocate jurors and tell them clearly what is important, they will usually correct other jurors’ mistakes on the issues that really matter.
This should go without saying, but it’s something that comes up all the time in mock jury deliberations. Jurors often express appreciation for timelines, graphics, and other similar devices that help them understand a complicated set of facts or issues. Conversely, jurors won’t hesitate to say that they were confused about the timeline or about the significance of a piece of evidence. For every presentation you are preparing, think about how you can make it easy for the jury to understand and remember. Would a timeline be helpful? Can you illustrate your point concisely with a bar graph or pie chart? Is there an analogy that would help the jury understand a highly technical concept that may be beyond their common experience? Can a live demonstration of the technology help the jury understand what is at issue?
Mock trials I’ve done typically have 30 to 50 mock jurors, and the group is selected to represent the demographics of the jury pool. I’ve never done a mock trial that didn’t have at least one person who was (how to put this politely?) a divergent thinker unafraid of voicing bizarre and passionately held opinions. A person like this can really derail the discussion by taking the other jurors off on tangents or even getting hostile. A lot of the time, the other jurors will politely ignore or try to deflect such behavior. Other times, they will try to engage the person in an effort to build consensus. In any case, volatile jurors like this can impede a thoughtful discussion and prevent the group from coming to a consensus. They can even be counterproductive to the side they favor by taking extreme and irrational positions, causing other jurors to push back against those positions. Jurors who are vocal and a little bit (or a lot) crazy often identify themselves as such when they are questioned in jury selection. They tend to be outspoken and offer responses that are illogical, rambling, or extreme, or some or all of those. You’ll want to be alert for these signs during jury selection and keep prospective jurors talking for long enough to assess whether they are going to be a problem.
Jurors love to talk about the attorneys when they go back to deliberate. They will talk about your presentation style. They will talk about whether they think you’re a good lawyer. They will compare you against your opponent. They will debate whether you’re the lawyer they would want if they ever got into a lawsuit. They will turn into fashion critics, commenting on your suit, your jewelry, your shoes. You will be under a microscope at trial and must conduct yourself accordingly. You should not roll your eyes or pass notes frantically, and you should always be respectful to courtroom staff. Keep in mind, too, that while you are someone of interest to the jury, the trial is not about you. It’s about your client and helping your client get the best possible result. You must comport yourself in a way that serves your client when you are in and around the courtroom.
One thing that jurors are quite good at is judging credibility and detecting inauthenticity. They may not remember every fact that comes out at trial, but they will have impressions of the people involved in the trial. They often comment in deliberations when they think a witness or attorney seems “forced,” “fake,” or “rehearsed.” It’s important for you to be true to yourself and to speak to the jury in a style that feels authentic to who you are. The same applies to your witnesses.
