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JURY RESEARCH UPDATE

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We are all aware that jurors have difficulty processing information presented at trial—particularly complex information. Research* indicates that jurors accurately remember approximately 60% of the facts of the case and only 30% to 50% of the judicial instructions. In addition, research tells us that jurors are basically story builders and story matchers. They process the information at trial in an attempt to develop a "story" for what happened. Once jurors decide on a story, they try to match it to the decision alternatives presented in the jury instructions. The story-building process goes on during the trial and is not delayed until deliberations start.  Ninety percent of jurors decide on a story before deliberations.

How do you get jurors to process the information into an understandable and compelling story that fits the case? Creating a theme is central to accomplishing this task.

Themes encapsulate the case. They serve as a framework for viewing the evidence and arguments in the case. Do not underestimate the importance of themes. Adopting a theme leads jurors (a) to search for confirming evidence and the devaluation of disconfirming evidence; (b) to have greater memory for evidence consistent with the theme; and (c) to raise arguments not presented by the attorney but consistent with the theme in support of their position.  Whether it is labeled "theme," "scheme," "plot," "story line," or "moral," the theme is the essential framework for building the jurors’ story for what happened.

Given the importance of themes, it is surprising how little time and resources are devoted to their development. Oftentimes serious attention to formulating the theme occurs only in anticipation of opening arguments a few days before trial. Since themes are the framework for the story, attention to potential themes of the case should evolve as the case evolves. A good theme developed early helps direct the development of content and direct the questioning in depositions.

In developing effective themes, several issues need to be addressed, including a case analysis, framing key issues, storytelling, multiple themes, and sources of themes.  

Case analysis

Each case is unique, with unique facts and circumstances that highlight potential themes. A case analysis focuses on several basic questions. What evidence will be presented to jurors? What are the strengths and weaknesses of the case? Where are the consistencies and inconsistencies in the case? What arguments are likely to be made by the parties? What are the likely jury instructions? Taken together, the answers to these questions provide a detailed look at the case. An effective theme must be consistent with the key relevant evidence or, if the theme appeals to nonevidentiary factors, e.g., over-zealous prosecution or sympathy, it must account for context of key evidence.

Framing key issues

Based on the case analysis, the next step in theme development is looking at the key issues that appear, both factual and emotional. Factual issues address the following questions: (a) Overall, what happened? (b) Specifically, what was done or not done?  (c) What was the result? For example, in a nursing home negligence case, the answers to these questions might be (a) the nursing home was understaffed; (b) short staffing led to medical personnel ignoring their patients; and (c) the patient suffered horrible, infected bedsores.

Emotional issues, on the other hand, address the motivations and intentions of the actors in the story, i.e., the "why" of the story. This "why" question has two levels.  First, why did the actors do what they did? Second, why should jurors care? Continuing with our nursing home example, the reason the nursing home did not have the required staff was that it valued profits more than patient care. The motivation was greed. Jurors care because they attach negative values to greed and abuse/indifference in the care of patients, particularly the vulnerable elderly. Emotional issues add fire to the case, motivating jurors to dislike the opposing party and/or to want to help the party or the cause of the party advancing the theme. Jurors may be willing to forgive the nursing home for a problem resulting from an oversight or simple mistake, but they will not forgive the nursing home for a problem caused by callous indifference, intentional violation of rules and policy, or greed.

Storytelling

An effective theme communicates the issues in an understandable and compelling manner. As such, lawyers must focus on "storytelling" versus "reporting." Jurors do not want a sterile, factually driven, newspaper story, e.g., "The defendant killed three women."  Jurors want a creative and compelling story that combines both facts and emotional issues, e.g., "The defendant stalked, tortured, and strangled three helpless women." Good storytelling also takes advantage of techniques that increase memory and attention, e.g., alliteration, juxtaposition, and analogy.

Multiple themes

In some cases, more than one theme is necessary to effectively communicate the story to the jury. Multiple themes often occur in cases where two or more separate decisions must be reached by the jury, e.g., civil cases when both liability and damages are at issue. Two or more themes in a case may be conceptually distinct, e.g., "This is a case about a truck driver who failed to obey safety laws by passing in a no passing zone and crashing into Mrs. Smith. . . . This case is also about providing sufficient compensation for Mrs. Smith to enable her to live at home versus being put in an institution." However, many times multiple themes can be integrated to form an overall theme with subordinate themes, much like an umbrella with its supporting spokes, e.g., "This is a case about responsibility: the responsibility of a truck driver to obey safety laws—to not pass when in a no passing zone—and the responsibility to provide sufficient compensation to enable Mrs. Smith to live at home instead of in an institution."

Presenting multiple themes can be accomplished in several ways. One approach is "peeling the onion"—treating multiple themes as layers of the case. For example, the layers of medical personnel's negligence could be: "This is a case about a hospital and its employees who ignored a patient's cries for help. Jane Smith told her doctor about the pain in her leg, but he ignored her. She told the nurses about the pain in her leg, but they ignored her. They only paid attention to her when the blood clot broke free and lodged in her lung, killing her instantly."

A second approach to presenting multiple themes is "weaving the fabric" of the case. This approach shows jurors how each component theme comes together to form an overall theme. For example, consider: "This is a case about greed and cover-up, where a company maximized profits at the expense of environmental safety and tried to cover up its crime. The company illegally dumped its wastes down the sewage drains to save disposal costs. The company had its managers destroy records concerning the waste disposal, change logs, and ignore safety inspectors' reports. As a result, it saved hundreds of thousands of dollars. This is greed at its worse—profits over all things."

When working with multiple themes, avoid advancing inconsistent themes. For example, defendants in many civil cases may be tempted to "argue in the alternative" with some variation of the following argument/theme: "The defendant is not liable, but, if it is, be reasonable in any damages you award." The two implied themes are (a) the defendant did nothing wrong, and (b) the plaintiff seeks too much money.  Arguing inconsistent themes can lower the credibility of the overall argument and the attorney. Structure inconsistent themes in a less inconsistent manner.  For example, the above liability and damages argument can be structured more effectively in the following manner: "What the plaintiff has asked for is excessive and inappropriate. Not only is the amount of money excessive but it is inappropriate because the defendant did nothing wrong."

Sources of themes

So far, we have concentrated on the unique aspects and issues in the case which spawn potential themes. However, the search for appropriate themes need not stop there. Several other sources are available: (a) small group research; (b) contemporary culture; and (c) the common experiences of jurors.

Small-group research. In small-group research studies (e.g., focus groups and trial simulations), small groups of jury-qualified residents from the trial community receive information and arguments concerning the case and are asked for their verdicts and reactions to the case. This research is designed to pretest the case before trial. As such, it provides an excellent forum for testing the effectiveness of different potential themes and for uncovering new themes or variations on present themes based on the feedback you receive from these "jurors."

Contemporary culture. A second source of themes comes from contemporary culture. Themes can be drawn from such diverse areas as literature, analogies, proverbs, sayings, history, contemporary events, and popular figures, songs, television programs, and movies. Direct quotations or adaptations from Shakespeare or the Bible, popular phrases (e.g., "too little, too late" or "when all you have is a hammer, everything looks like a nail"), contemporary events (e.g., "rush to judgment"), or even reference to movies (e.g., "Fatal Attraction") may capture the essence of the case. In using "outside" sources such as literature or even movies, the reference must (a) appropriately and meaningfully characterize the case, and (b) be easily recognized and accepted by the jurors.

Common experiences of jurors. In some cases, a theme can tap into the common experiences that many jurors have had (or are aware of others having had this experience). For example, many jurors have experienced waiting for an over-booked doctor who fails to read the chart, construction/repair workers who fail to do their work properly, or a salesperson who says anything to make the sale with no intention of delivering on the promises made. By capitalizing on such common experiences (e.g., "This is a case about Capital Leasing, Inc., selling its investors a bill of goods—saying anything to make the sale with no intention of delivering on what it promised."), jurors more readily identify with the theme, even though the facts of the case are not within the jurors' common experiences. Thus, even though the leasing scheme involved millions of dollars, jurors who have had average salespersons "sell them a bill of goods" can identify with the theme stated in simple, everyday terms.

After the theme has been developed, it is important to consider how the theme will be highlighted throughout the trial process. The theme needs to be planted and nurtured throughout voir dire, opening statement, direct and cross-examination, presentation of nontestimonial evidence, and closing arguments. The following will help maximize the effectiveness of your case's theme.

Voir dire

In voir dire, two theme-relevant objectives are important. First, you must assess the jurors' positive or negative reactions to the theme. For example, if the theme concerns providing sufficient compensation to allow the plaintiff to live at home versus being placed in an institution, jurors should be asked, "Would you have any reservations in providing money damages sufficient to allow Mrs. Smith to stay in her home versus being placed in an institution?" If a juror disagrees with the theme (as expressed through the question), rehabilitation is necessary or even removal may be warranted. Second, the "proper" issues need to be framed for the jury. By raising a question that reflects the theme, the issue can be framed in a manner beneficial to the asking party.

Opening statement

The first relatively unfettered presentation of the theme comes with the opening statement. Three goals should be accomplished. First, begin the opening statement with the theme to capitalize on its organizational and perspective-setting capabilities. This can be done even before any introductions. For example, consider how prosecutor Dan Webb presented his opening statement for the government in the Iran-Contra trial of Admiral John Poindexter: "Cover-up, deception, and concealment. The case you will hear in this courtroom is about a cover-up by high government officials who lied and made false statements to Congress, who concealed and misrepresented facts to the United States Congress, and who destroyed documents. Good morning, ladies and gentlemen of the jury."

Second, show how the evidence and law will be woven together to reinforce the theme. Be explicit as to how each of these aspects (key evidence and law) supports the theme and the ultimate decision in your favor. Third, challenge your opponent's theme. The opponent's theme must be attacked before jurors have time to adopt the opposition's theme and hear and process any evidence based on it. Two good approaches are available: rhetorical questions and inoculation.

Asking rhetorical questions that are difficult for the opposition to answer (e.g., "If the plaintiff wasn't informed of the potential consequences of the surgery, why is her signature on the consent form that lists these complications?") focuses jurors on weaknesses in the opposition's theme. Also, inoculation (the process of successfully attacking a weakened form of an argument, resulting in increased resistance to persuasion when faced with the strong version of the argument) against the opposition's theme can be very effective. "The defendant may say that he tried his best but, unfortunately, sometimes complications can be hidden. However, the evidence will show that Dr. Jones knew something was wrong but failed to act. The key symptoms were reported to him by the patient at 1 a.m. and by the nurse at 2 a.m. He knew of the problem but did nothing until he was confronted by the head nurse at 3 a.m."

Direct and cross-examination

Direct and cross-examination provide the details which fill in the story. Both the tone and phrasing of key questions or the answers elicited should reinforce your theme or detract from your opponent's theme. In addition, questioning of experts (particularly on direct examination) should capitalize on the use of analogies and hypothetical questions to foster the processing of the information that is crucial to the theme.

Nontestimonial evidence

Nontestimonial evidence can reveal key components of the theme (e.g., a note in a medical chart revealing when a crucial event had occurred) and can provide other, less obvious support to the theme. Such evidence can add perspective that enhances the theme (photographs of people standing by jagged rocks illegally dumped along a pipeline add perspective and dramatize the threat posed by the rocks). In addition, animations or videotaped recreations can be presented via different viewing perspectives to reinforce various elements of the theme. Finally, even summary "story" charts or graphics can reinforce elements of the theme (e.g., a defendant who "lined his pockets with taxpayer's money" can be represented by a figure with dollar bills protruding from his pockets).

Closing arguments

By closing arguments the theme may have evolved somewhat from the opening statement, but in most cases the basic theme remains the same. The goals for closing arguments are the same as opening statements. First, reinforce the theme, ideally at the beginning of the closing argument. For example, in the Poindexter case referred to earlier, Dan Webb began: "Good morning, ladies and gentlemen of the jury. Cover-up, deception, and concealment. I told you in my opening statement, when we began the trial, that this case would be a case about a cover-up by high government officials who lied and made false statements to Congress, who misrepresented and concealed facts from Congress, and who destroyed government records."

Second, reweave the theme of the case through the facts and the law to show how the evidence (and any change in circumstances that arose during the trial) and the law are consistent with it. Finally, challenge the theme of your opponent. Use rhetorical questions and inoculation to cripple the opposition's theme (and case). In addition, point out any changes in the opposition's position/theme in the context of "promising more than was delivered." Unless jurors are reminded of any overstatements or unfulfilled promises, such problems will not be held against the transgressor.

An understandable and compelling theme does not simply appear without hard work. Considerable attention must be paid to developing the theme, drawing upon outside resources, where available. Once the theme is developed, steps must be taken to plant and nurture the theme throughout the course of trial.

*See Frederick, J. The Psychology of the American Jury (1987) for a discussion of much of the research cited in this article.

About the editor:

Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group. He has consulted with attorneys since 1975 on jury selection, case preparation, and trial presentation issues. He is a frequent speaker at continuing legal education programs across the nation. His publications include two books, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (ABA Press, 1995), and The Psychology of the American Jury (Michie Co., 1987), and a number of articles on the topics of voir dire, jury selection, and persuasion. Those interested in information on jury research services are encouraged to call 1-800-727-6574.

LET US HELP YOU IN YOUR NEXT JURY TRIAL. We know jury trials. We offer a broad range of services including basic case evaluation, voir dire development, evidence and argument preparation, jury selection, focus groups, trial simulations, and jury surveys. All service packages are tailored to meet your litigation needs given the resources available. For more information call Dr. Jeffrey Frederick, Director of Jury Research Services, at 1-800-727-6574.