When Common Sense Isn't so Common

By Melissa M. Gomez
Special to the Legal

I hear it in real trials. I hear it in mock trials. Just about every one. What is it? It is the following statement: "Ladies and gentlemen, you just have to use your common sense to find (insert what you want the jurors to find here)."

But the fact of the matter is that common sense isn't always so common, and what you may consider common sense may not relate to the sensibilities of a particular juror.

While this can be true in any kind of case, I find it particularly true in complex commercial cases in which the issues make it difficult for jurors to make any sense of the case, let alone consider any of it common. I remember in particular some very complex contract litigation chock full of accounting principles and financial complexities. In mock trial deliberations, knee-deep in the information, jurors laughingly referred to a "common sense" comment made by one of the attorneys. While it may have been common to the attorney, it certainly wasn't to them.

The words you use and the insinuations you project through those words can have a profound impact on the way jurors view you and your case. Be careful about making such assumptions regarding what you feel someone should consider obvious or common sense.

The danger is this: If you are telling a juror to use his common sense to agree with you, and he sees things differently, you not only have someone who may not see things as you do, but you just alienated that person. The end result is that you may have created a stronger adversary than otherwise. You have insulted his common sense for disagreeing with your position, after all.

It all makes common sense, doesn't it?

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. If you have questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.