Lawyers Do Not Understand Juries

Posted on July 9, 2008 by R. David Donoghue

Anne Reed has an excellent post at Deliberations identifying the numerous ways that litigators misunderstand jurors.  Her post is based upon an article titled To Deal Better With Juries, Stop Thinking Like a Lawyer!, by Patricia Steele of Varinsky Associates -- click here for Reed's post and for a link to a pdf of Steele's article.  Steele provides numerous examples of the way the common legal wisdom about juriors directly opposes jurors' realities.  For example:

  • It is not the lawyer or her closing that makes the case, but the facts.
  • Clever legal arguments lose cases, themes of justice, and rights or wrongs win cases.
  • Voir dire should be used to get to know the jurors, not to teach the case.

Steele's observations square perfectly with my observations as the son of a trial attorney, a former federal district court law clerk and a practicing lawyer.  Each of the misconceptions Steele identifies comes from one of two basic and common misunderstandings:

  1. Trials are stages for lawyers.  Wrong.  Trials are a stage for the facts and the themes lawyers wrap the facts in.  Good facts generally beat good lawyering.
  2. Lawyers understand jurors.  Almost always wrong.  As most lawyers know, law school is intellectually transformative.  After three years of law school (plus years of practice) a lawyer thinks differently.  One of the critical tools for a trial attorney is access to non-legal thinking.  One way to get it is to learn to strip away the legal framework we have built up and think like a juror.  This is hard to do, especially as you are in the whirlwind of a trial or trial preparation.  The best lawyers recognize this issue and turn to juror proxies -- their assistants, spouses, children, neighbors, friends, baristas or anyone else they know without legal training -- to get non-legal perspectives.  Of course, consultants, focus groups and mock juries can also provide juror thinking.

Everyone who tries cases, or who aspires to, should go to Reed's post and download Steele's article to read and re-read.

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Looking at the Court Room From Different Perspectives

Posted on May 25, 2007 by R. David Donoghue

Litigators (IP or otherwise) often have difficulty looking at their cases and the legal process more generally from the perspective of the other participants -- their adversaries, their clients and jurors.  The new blog In this case does just that.  It tells stories of people's experiences with the legal system.  So far, none of the content is IP-related, but it is interesting reading.  And the perspectives of jurors could prove very valuable during your next trial.  For example, this is a story from a mother of an infant who was picked for jury duty, but needed to break periodically to pump her breast-milk.  Unfortunately, for her and the parties, she was uncomfortable discussing her needs with the judge and attorneys who were all men.  So, although they thought they were accommodating her needs, she only got part of what she required to the detriment of at least one party and perhaps justice:

I ended up getting picked for the jury. I explained to the other jurors that I needed to pump every two hours or so. The jury room had two bathrooms, a men’s and a women’s. So everyone agreed that they would use the women’s bathroom and I could use the men’s bathroom to pump. We were given 20-minute breaks, which wasn’t enough. . . .

It was gross pumping in the men’s room. But the thing that was more of a problem for me was that in between the breaks all the jurors were sitting out there bonding, talking to each other, getting to know each other. So that when it came time to deliberate, they all kind of knew each other. Whereas me, as soon as I got in the jury room, I was going in and pumping, the bailiff was bringing me my bag. When I came out I didn’t even have a chance to get anything to drink. I never got a break.

I was really interested in making sure we came to the right decision. But I didn’t really know any of the other jurors, I hadn’t had a chance to develop a relationship with any of them. If I had had that extra time, I think I wouldn’t have felt like I was being so confrontational in saying, come on, let’s really look at all this stuff, figure out what happened. . . .

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