As we continue digesting the information contained in the Cornell University School of Law Review article authored by Judge Amy St. Eve and former-law-clerk-now-law-firm-partner Gretchen Scavo, I want to shift the focus to the heart of the matter: presenting evidence.
Eric Oliver, a communications guru, says, “Facts can’t speak for themselves.” And he’s absolutely right. Evidence must be presented in a way that makes sense to jurors, who haven’t spent years diving into the minutiae of the case and know little about engineering, blood spatters, technology software, GAAP, hydrogeology, or whatever subject is at issue.
The Cornell study spanned six years and gathered feedback from more than 500 jurors, so I won’t even attempt to walk you through all the great lessons to be learned in it. Instead, I’m going to focus on:
Jurors’ Top 3 Evidentiary Pet Peeves.
Pet Peeve #1 | Unnecessary Repetition
In their analysis of jurors’ survey responses, the authors discovered that too much unnecessary repetition was the most frequently noted pet peeve of jurors. And the jurors’ own comments hit that point home:
- “All that is accomplished by excessive repetition is the annoyance of the jurors.”
- Jurors did not like it when attorneys “kept repeating the same points over and over – we’ve got it!”
- “Many questions were asked different ways but essentially mean[t] the same thing.”
- Jurors appreciated when attorneys “did not beat a dead horse” or “drill a point to death.”
But the key word here is unnecessary. The tricky part is determining what evidence is and is not necessary for jurors, and whether that evidence needs repeating. It’s judgment call that only you can make; but if you make the wrong call, jurors will likely give you one demerit for wasting their time, and a second demerit for insulting their ability to grasp the content.
Trial Tip: I often remind my clients that jurors need to hear things more than once. But make no mistake: they don’t want you to sound like a broken record. There are many ways to effectively use repetition without irritating the jury. The solution is to mix up how you repeat the information. Some possibilities:
- Vary your word choice and phrasing;
- Frame critical facts with powerful themes;
- Complement testimony with graphic demonstratives that visually repeat the salient facts (saving you from saying them out loud yet again);
- Write your key points on a flip chart as they are introduced.
Pet Peeve #2 | Confusing Questions
This is one of the biggest challenges litigators face when presenting evidence.
By the time you’re on your feet in front of jurors, you’ve lived with the evidence for years (and years). Your case is probably old enough to start kindergarten. The good news is that you know the evidentiary issues like the back of your hand; the bad news is that you know the evidentiary issues like the back of your hand.
It can be extremely challenging to take a giant step backwards and view the facts from the jury’s perspective. Often, jurors simply don’t understand the point you (think you) are making because they lack adequate context or background information. And when questions contain 200 words, or jump from topic to topic without obvious segues, jurors have a more difficult time following your story.
Jurors in the Cornell study had this to say about the attorneys’ Q&A:
- The “questions were not direct enough” and they “weren’t clear.”
- “When rephrasing a question for a clear[er] understanding, do not use the same word that is unclear.”
- Jurors “liked when lawyers questioned the witnesses in a straightforward way so that it is clear how the questions [and answers] are relevant.”
- Jurors also appreciated when counsel “asked questions that [jurors were] thinking” and were responsive to what the witness said.
Trial Tip: There are a number of benefits to asking a greater number of short, succinct questions rather than fewer convoluted ones:
- Shorter questions are generally a lot easier to understand for everyone in the courtroom;
- They enable you to baby-step the witness (and jury) through the facts, and it can help jurors follow your train of thinking;
- Shorter questions also elevate the energy level of the exchange and often increase juror attention.
Remember, if a witness doesn’t understand your question, there’s an even better chance the jury doesn’t understand it either. The bottom line is this: The harder your story is to follow, the harder it is for jurors to connect the dots. And if they fail to connect the dots in your story, it’s going to be awfully hard for them to deliver a verdict that favors your client.
Pet Peeve #3 | TMI
Jurors not only dislike unnecessary repetition, but they also get frustrated when counsel throws everything and the kitchen sink up against the wall. Time and again, I remind my clients that jurors do not need to know every single piece of evidence. Attempting to share e-v-e-r-y-t-h-i-n-g makes your job 10 times harder than it needs to be. It’s also counterproductive. Jurors need to know enough to answer the verdict form (in your favor). If you get too deep in the weeds, you’ll earn yourself yet another demerit.
- Jurors did not like when attorneys “kept raising points not pertinent to the case.”
- Don’t “twist and nitpick unimportant facts” or “try to confuse us.”
- Jurors thought it was a waste of time when counsel “talk[ed] about specific people a lot but [did not use] it to help the case” and when they spent “too much time” on unimportant issues.
- Attorneys “showed way too much that was not necessary for the case.”
Trial Tip: Less. Is. More. If you provide jurors with too much information, they can easily become overwhelmed, irritated, and, most importantly, they will have a more difficult time isolating the relevant information from the sea of irrelevant points. If you’re unsure just how much is too much, have a candid powwow with your trial team, bounce ideas off a peer who knows nothing (or little) about your case, or consider meeting with a jury consultant for a few hours. And if you’ve got the budget, the very best way to discover what matters and what doesn’t is to conduct some form of pretrial jury research. Let mock jurors help you find the relevant trees in the forest of facts. Many times, they have nothing to do with the law.
What’s to be learned from all of this? The common denominator in the Top 3 Evidentiary Pet Peeves is overwhelm. Jurors need to know all the relevant facts, but those facts need to be presented in an understandable way, and they don’t need to be buried in a mountain of irrelevant facts or presented with a line of questioning meant for folks already in-the-know.
Finding that sweet spot of “just enough but not too much” is difficult, but it’s not impossible. Attorneys preparing for a jury trial need to build in time to make sure they’re presenting their case to John Q. Public, not a panel of peers.
In our final post of the series, we’ll discuss the “Professionalism” portion of the Cornell study. Stay tuned!