Lessons from hundreds of mock jury deliberations
Why guess? Here are the key preconceptions and questions that juries have for 9 case types. Included are the themes, analogies, and arguments juries find persuasive for both plaintiff and defense. Examples below.
Dr. Karen Lisko, Past President of the American Society of Trial Consultants, has observed the deliberations of hundreds of mock juries in the 22 years she has been helping attorneys develop case strategies. She has also conducted scores of post-trial interviews with actual jurors.
She has compiled her research findings in Proven Jury Arguments and Evidence. This $119 book provides general recommendations for persuading all types of juries, and offers detailed advice for the following nine types of cases:
- Auto accidents
- Police misconduct
- Slips and falls
- Medical malpractice
- Products liability
- Breach of business supply contract
- Breach/delay of construction contract
- Race discrimination
- Sexual harassment
Key research findings
Here are some abbreviated excerpts from Proven Jury Arguments and Evidence which may help you prepare for your next trial. These suggestions comprise a small slice of the dozens of research-based recommendations found in this ground-breaking 430-page book:
- Use of Story. “The knowledge that story order in opening statements is powerful and persuasive has been around for awhile and has been reinforced in other research. Yet, many well-intentioned litigators still persist in organizing their openings topically around the legal theories in the case. Other attorneys attempt to introduce story within their legal theories; for example, some tell a liability story and a damages story.
Having personally observed many hundreds of mock jurors deliberate, it is clear to me that jurors do not compartmentalize story within legal theories. Rather, jurors blur the lines across those theories to tell themselves (and one another) a single complete story, inserting their own personal experiences or hypotheses where holes in that one story exist. Academic research supports this observation. We have also observed this same phenomenon in our privately-sponsored research with mock judges and mock arbitrators.”
- Themes. “Little has been published in the academic literature about the effectiveness of different themes. However, in our privately sponsored mock trial research, we have repeatedly tested themes. One strong pattern has emerged from that research: The more effective themes are the ones that appeal to the tougher audience on the jury. In other words, a plaintiff who uses a defense-oriented theme is more persuasive than one who uses a plaintiff-oriented theme.
The reasoning is simple. Pro-plaintiff jurors are less in need of a plaintiff-oriented theme. They walk a pro-plaintiff mindset every day. The conversion you need to accomplish at trial is with those on the jury who are not automatically prone to favor your position. A good theme focuses on what motivates this more reluctant audience on the jury. An even better theme can be readily repeated throughout the opening and other phases of trial.”
- Demonstratives. “When jurors can view your interpretation of critical evidence, rather than simply listen to it, your odds of prevailing on the point most definitely increase. You may be able to see your point perfectly in your mind’s eye, but you have had the benefit of months, maybe years, of living with the evidence to perfect that image. Jurors (and judges) are not so lucky.
“You can dramatically shorten their learning curve by using computer animations or simple demonstratives. While current academic research finds that computer animations may not give you a dramatic advantage over simple demonstratives, our field research in more complex litigation finds that there is no substitute for an animation when you need to take someone inside a process, whether it be inside the human body or inside a technological innovation.”
- Blaming the Other Guy. “Research finds that drawing attention to the failings of the other side during your opening statement increases jurors’ willingness to blame the other side. However, less has been written about when to voice the blame. Do you start your opening focusing on the other side’s failings, as some practitioners suggest, or do you wait until you have first established what you did well?
“We have tested the approach of starting the opening (plaintiff or defense) with what the presenting party did well before castigating the other side. In general, this approach has proven more successful than starting on the attack. Make no mistake — the attack on the other side still needs to occur in most cases, but the timing of the attack matters.”