Persuasion Matters

Texas Bar Today Top Ten Blog Post

What Jurors Really Think, Part 1: Organization

Texas Bar Today Top Ten Blog Post

U.S. District Judge Amy J. St. Eve and Gretchen Scavo, her former law clerk who now oversees attorney training at Winston & Strawn’s Litigation Department, wanted to know what actual jurors liked – and more importantly, didn’t like – about trial attorneys. Between 2011 and 2017, they gathered unfiltered written feedback from more than 500 jurors in the Eastern Division of the Northern District of Illinois (Chicago), primarily from cases in Judge St. Eve’s court. After trials wrapped up, jurors were asked to complete a voluntary, anonymous survey, the results of which were analyzed and recently published by the Cornell University Law School Law Review in a report titled “What Juries Really Think: Practical Guidance for Trial Lawyers.”

Nothing in the article surprised me, but that’s likely because I have spent thousands of hours over the course of my 20-plus-year career conducting shadow juries, post-trial interviews, and debriefing mock jurors. What the study found is consistent with my experience in trial venues across the country and gives credence to what many jury consultants have been advocating for years. Since the vast majority of folks in the legal industry aren’t fortunate enough to log this volume of face time with jurors, I thought it was absolutely worthwhile to share some of the article’s more noteworthy tidbits.

The feedback, once analyzed, fell into four main categories:

  1. Organization, Preparation and Efficiency
  2. Style and Delivery
  3. Attorney Behavior and Other Professionalism Indicators
  4. Evidence Presentation

Because there’s just so much meat in this study, I’ll share their findings and my analysis of them over the next four blog posts. For now, let’s talk about the importance of organization and preparation.

Here are some samplings of actual jurors’ quotes – taken straight from the study – about attorney preparation and organization:

  • Attorneys were “very organized” and “did the trial in a timely manner.”
  • Jurors wished attorneys would have “prepare[d] more thoroughly so that their evidence isn’t missing.”
  • Jurors were irritated when counsel “[couldn’t] think of the next question without long pauses.”
  • Jurors wished attorneys had “better preparation” and used “more to the point questioning with much less fluff.”
  • Jurors wanted to see attorneys “be more direct and get to the point.”
  • Jurors did not like the attorneys’ “lack of preparedness—[they] seemed to wing it [and should] have a better plan.”
  • “Brevity and clarity are so important.”

As I said, given the opportunity, jurors will tell it like it is. Based on the article data, and my own experience, here are a few tips to help you maximize those “likes” regarding your organization and preparedness.

Tip #1: Keep Your Workspace Tidy.

This may seem obvious, but it bears repeating. Organization, for jurors, is often something as simple as having a clean and tidy desk area. Is this an annoyance during the throes of trial? Absolutely. But it matters to jurors. At the very least, start and end the day with your workspace looking as though you were a guest and are not returning. Leave it clean enough for someone else to come in and use not only counsel table, but the surrounding areas as well. It communicates respect not only for the court, but respect for yourself and your client as well.

Tip #2: Have Your Exhibits Ready to Go.

If you happen to be trying a case with a judge who does not preadmit exhibits, avoid “winging it” with your exhibits when questioning a witness. Nothing irritates a juror more than having to wait for counsel to dig through a box looking for the proper exhibit, or to wait while counsel asks an assistant to retrieve and deliver a document. (And if the attorney is male and relies on a female to hand over the documents, that’s a whole different perception problem.)

Bottom line: Do your homework before entering the courtroom each morning. Use whatever system works for you, but we suggest having one single file folder per exhibit, labeled, with the proper number of copies, and sorted in a manner that follows your outline. Yes, it only takes seconds to go dig through that box, but trust me, those seconds have a big impact on juror perceptions. And it’s rarely a positive one. (This is yet another reason to use Trial Director, or a comparable presentation system, in the courtroom, but we’ll address the importance of technology later in the series.)

Tip #3: Streamline When Possible.

While some lawyers may assume things like stipulations have zero relevance to jurors, think again. Multiple jurors wished counsel for all parties would stipulate to a greater number of facts. Obviously, this isn’t feasible in every type of case, but in the event there arefacts that both sides can agree upon, there’s really no need to belabor the points any more than necessary for the appellate record. Agree to agree, address the issues as succinctly as possible, and move on to the facts actually in dispute.

Tip #4: Choose Your Battles.

Jurors also notice those pesky little sidebars. Some perceived them as a “waste of time,” while others saw them as a sign that counsel was unprepared and disorganized. Sidebars will always be necessary, but use them wisely: jurors are watching … and trying hard as hell to lip read.

When possible, consider raising the issue during a break, or create a situation that prompts the judge to request counsel up to the bench (as opposed to counsel requesting the sidebar discussion). One juror in the survey noted that counsel was disrespectful of their time by requesting a sidebar so soon after a break. And juror perceptions sometimes have hints of something duplicitous. In multiple post-trial interviews, jurors have voiced a belief that an excessive use of sidebars is nothing more than an intentional attempt by counsel to keep the jury from learning the truth. Ouch.

Bottom line: If you really need a sidebar, request one. If you don’t, keep calm and carry on.

What this study brings home for lawyers is that, although it’s crucial to have the facts and the law on your side, jurors notice a world of issues that have little to do with the facts or the law. So, when preparing for trial, it is absolutely essential to make sure your “style” is as good as your substance.

Speaking of style, next time, we’ll tackle the “Style and Delivery” portion of the Cornell study.

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