By Jocelyn Cinquino
Special to the Legal
Time and again we hear from jurors befuddled with complex contractual issues at the heart of a case: “I can’t decide anything until I read the whole document—I just know the lawyers left something out.” Easy for them to say, impossible for them to actually do considering the document at issue is quite often long enough to require being stored in multiple bankers boxes. So what is it that they are searching for? What is it that they believe is so critical that they are rendered incapable of comfortably reaching a verdict without scrutinizing the document for themselves? Turns out they are searching more for guidance than they are for actual words and counsel has opportunities to meet that need before jurors are left to their own devices in deliberations.
First and foremost, jurors need to have a sense that they can trust you so when you turn their attention to one section of the document, they are not left wondering what you may be leaving out. Recognizing and directly acknowledging that jurors may feel like they are missing out on something if they don’t have all the language at their disposal helps efforts at building rapport with jurors in this regard. To do this, avoid the tendency to rush into getting right at the language you want people to see in a document without first orienting them to the document itself. It takes some patience but taking time to let them know what the document is, what all its paragraphs and sections generally cover and even such basics as the date and who sent or authored it can help in the end, because jurors are less willing to disregard the source of the key information you need them to focus on as questionable.
Be consistent and follow through on any promises you make to further establish trust in jurors that you will guide them toward the information they need in the documents at issue. Giving them an indication that you and the witness will be focusing on a certain section or portion of the document for a particular reason, while offering why the rest is not at issue, can help manage expectations. And making sure your witness is prepared to also handle the documents well when being examined is part of offering jurors guidance in understanding why the document is important in the first place. Should a witness be unfamiliar with the document and fumble around the language, not only will it negatively impact his or her credibility but it can also make jurors even more frustrated and want to examine the document themselves as a result.
Using graphics to highlight or illustrate language from a document is a very valuable tool and is immensely helpful to jurors when it is done the right way. If, however, you consistently show the document only as a prepared graphic where you pull out just one phrase from a paragraphs-long record, jurors can be distracted wondering what else is there. To the extent possible, letting jurors see the actual document itself—even briefly-- before giving them that focused graphic can help satisfy their curiosity first and make them comfortable focusing on what you need them to in the end.
Jurors want and need to be helped along in the process of understanding the issues of the case, particularly when those issues are complex and intangible. When documents exist alongside them, jurors are typically inclined to think of those sources of information as something they can get their hands on and unquestionable as a result. Establishing enough trust with jurors that you are going to give them what they need from those documents will go far in making them satisfied to focus on your points from the document rather than come up with some of their own.
Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at firstname.lastname@example.org or call 917-733-0770.