The jurors have made it through the trial, reached their verdict, received their thanks, and are headed to the exits. How do they feel about their experience? What do they think the lawyers did well, and what do they think the lawyers could have done better. Chances are, we can make an educated guess: Their feedback would relate to the fundamentals, and wouldn’t be anything particularly earthshaking. Still, it is good to ask, and still it is critical for even experienced litigators to pay attention and to take this feedback seriously.
Aiding that effort is a recently-released survey on juror experience in Chicago federal courts. U.S. Judge Amy St. Eve and her former clerk, Gretchen Scavo (St. Eve & Scovo, 2018) administered a voluntary and anonymous survey to more than 500 jurors who had completed their service in civil and criminal trials between 2011 and 2017. The short questionnaire contained just a few open-ended questions: What did they like and dislike about the lawyers, and what should the lawyers have done differently or better. Looking through the responses shared in their Cornell Law Review article, I have grouped them in three general principles with ten “golden rules” nested within.
The most frequent theme from the jurors related to organization, with 45 percent mentioning that theme. Three points within this category stood out.
1. Prepare, And Make Sure We Know You Prepared
When jurors had a positive comment for lawyers, that comment most often had to do with the attorney being prepared. And they’ll notice when you’re not. One respondent, for example, suggested that attorneys should “prepare more thoroughly so that their evidence isn’t missing or that they can’t think of the next question without long pauses.” There is being prepared, and then there’s showing you’re prepared. So make sure jurors see that preparation, and make sure that one unprepared moment doesn’t undo hours or days of work.
2. Make Choices: Focus the Case
Jurors don’t want to perceive that you’re throwing everything against the wall — especially when they’re the wall. Giving jurors the right focus sometimes requires conceding some less important issues in order to put more clarity on the more important issues. Here are a few comments from the survey:
– “Get to the point quicker with clearer details.” – “More to the point questioning with much less fluff.” – “Be more concise.” – “Brevity and clarity are so important.”
3. Tell Us a Story
In their open-ended comments, more than five percent mentioned order of evidence, indicating a preference for chronological presentation. Survey respondents were critical of attorneys who “did not put all the pieces of the puzzle together very well. We had to do too much ‘thinking’ putting the evidence together in my opinion.” The best way to put that evidence together is in a story sequence. The former jurors appreciated the “attempt to tell a coherent story to the jury” and stress that visual presentation should follow that story order: “Have a better timeline,” one advised.
The courtroom setting is unique, and in that church-like atmosphere, respect and professionalism are a big part of what is expected. Themes in this category were mentioned by close to 30 percent of the survey respondents.
4. Value Our Time
Make sure jurors know you appreciate their time, and do that not by saying, “We appreciate your time” but by actually showing it. For example, it is hard to overstate how much jurors hate sidebars: The survey responses yielded repeated suggestions to limit or eliminate their use, and stressed the advice to never let the jury sit and wait while you resolve something with the judge that could have been handled during a break. Granted, this is often in the judge’s hands, but it is still important for lawyers to be aware.
5. Be Civil to Opponents, Colleagues, Staff, Witnesses…Everyone
“Be civil to each other” was a frequent item of feedback. Good behavior toward opposing counsel, witnesses, and the jury was mentioned in 31.3 percent of responses. They hate visible displays of a lack of respect. One juror, for example, mentioned the lawyer who, “kept giving the defense lawyer dirty looks while he was making points.” Others were critical of the “facial expressions,” the “rolling eyes,” and the “interrupting” that also communicate disrespect. On the other hand, they liked the little gestures: One respondent mentioned that one side had loaned the other a computer charger.
6. Don’t Treat Us Like Children or Idiots
The most common negative comment in the survey, mentioned by a third of the responding jurors, was repetition: The jurors believe that presenting attorneys repeat themselves to the point of annoyance. Beyond the perceived waste of time, the main problem with repetition is what it seems to convey about your view of them. As one respondent noted, it isn’t just that it’s “sometimes very redundant,” it is that it’s “implying that we couldn’t understand.” The repetition is perceived as a form of condescension, and the article has a page of quotations from jurors on how much they dislike repetition. Yes, comprehension is often an issue, but as one respondent noted, “If we do not get the point the first or second time, then we are unlikely to ever get it. All that is accomplished by excessive repetition is annoyance of the jurors.” The solution is to find more creative ways to make it clear and to make it stick.
Don’t Be Painful to Listen to
The last general theme has to do with delivery, a theme mentioned by 36.1 percent of responding jurors. That doesn’t mean they need a perfect or polished speaker, but it does mean that the presentation style shouldn’t be an obstacle.
7. Be Comprehensible (Slow and Loud)
A surprising proportion of comments on presentation had to do with the rock-bottom basic: Can jurors hear and understand you? That means, speak loudly and speak slowly. Courtrooms are often acoustically challenging, and jurors can have different hearing abilities. Failing to catch what was said was a frequent comment. One juror, for example, complained of “Not being able to hear the plaintiff’s attorneys most of the time.”
8. Give Us Eye Contact
Jurors like to be talked to, and that is different from being talked at. Look at them, make a connection, and remember that you are talking to unique individuals, not to an undifferentiated mass. Jurors responding to the survey noticed the attention, saying that they “liked the direct-eye contact,” but also adding that they didn’t like being “stared down.” So provide an attentive gaze while you’re speaking to them, but make sure that gaze is friendly, not aggressive, and it is best not to monitor them too closely when you aren’t speaking to them, for example, when you’re sitting at counsel table.
9. Use Teaching Tools
Nearly one in five jurors mentioned trial technology. Often these comments were favorable, showing that modern jurors are conditioned to multimedia learning, and expect you to use what is available. Critical attention to technology focused either on the execution (“Learn how to use the equipment in advance”) or on a comparison between the two sides (“Why couldn’t the defense use laptops to present evidence like the prosecutors?”)
10. Be Human, Not Theatrical
The last piece of advice, and probably the most important, is to be real, human, and likable. Jurors were frequently critical of “smug,” “arrogant” and “presumptuous” delivery, and behaviors like “raising eyebrows”or “crossing arms.” Attorneys who didn’t win them over were, “not trying to make a connection with the jury (no smiles).” The kinds of showmanship that jurors expect from a stereotypical attorney often needs to be played down. The advice is, “Don’t put on a show,” but instead, “speak to the jury like [you] are speaking face-to-face with one person.” They mentioned that they liked attorneys who “did not get overly emotional” and were “not overly dramatic/theatrical.”
One of the judge’s main reasons for conducting the survey is that juries are fascinating. That feeling ought to be at the core of the care, the adaptation, and the respect that you give to them. Ultimately, they are not a decision-making apparatus, but a real human audience. They are subjects, not objects.