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:
- 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.
- 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.