What jurors do not understand, they will not find for. This is an axiom most lawyers know all too well. "Not understanding" on the part of jurors often results from a lack of information provided to them – an omission rather than a confusion of facts.
When preparing questions to ask witnesses, attorneys should not only think about formulating questions that will reveal the key case issues, but also try to determine what else the jurors might want to know to help them better understand their client's side of the case. "Enquiring minds want to know" is a good phrase to remember as attorneys plan direct and cross-examinations of witnesses.
But what do jurors want to know? During post‑trial interviews, jurors complain most frequently about two issues: the lack of background information and lack of standard practice or procedure information.
During pre‑trial preparation, attorneys must take time to divorce themselves from their primary role of advocate, and sit mentally in the jury box. Jurors aren't only interested in background information directly about the case. They want more.
In an accident case involving an automobile, motorcycle, truck or heavy machinery, for example, jurors are invariably interested in the speed of the vehicle, whether the driver had been drinking or taking drugs and the driving records of the parties involved. Jurors will be interested in all these factors no matter whether speed, drugs or driving records have anything to do with the case. It is almost as if the jurors' common sense demands that these issues be considered and resolved before they can go on to other factors.
Lawyers should not assume that if alcohol, for example, is not an issue in an accident case, that simply not mentioning it is sufficient for the jurors. To the degree that the law allows, these factors and other "common sense" issues should be brought up and clarified.
Whether it's a construction accident, slip and fall, or a personal injury case, jurors want information that will enable them to better reconstruct what occurred. In medical malpractice cases, again, jurors look for a reconstruction of “what happened.” The precipitating event is always important to the jurors regardless of whether liability is an issue.
In preparing witnesses, attorneys must be sure the testimony regarding "how the accident/event happened" is both clear and consistent from witness to witness. The more human detail witnesses can give, the better. Witnesses who can give "word pictures," and who can relate the accident/event with all the attendant sights, sounds and emotions (whether or not these are immediately relevant to the case), are powerful providers of the background so important to jurors.
Other items of juror interest: how long the parties involved in a case have been working at their respective occupations, how good they were at it, whether they were tired or overworked when the mishap occurred, what they had been doing the day or night before. All these are powerful "scene setters." They give the jurors the human dimension that allows jurors to truly relate to the lawyer's client. On the other hand, a lack of background creates a distance between the jurors and the witnesses and client – often a good tactic when cross‑examining the other side's witnesses, but not recommended when an attorney is trying to have the jury connect with a client.
Standard Practice and Procedures
In non-medical cases, jurors are rarely given a standard of practice or procedures (much like a standard of care in medical cases) to compare the circumstances discussed in their case with what is "normal" or customary. The lack of a standard is very frustrating to jurors, and they will actively look for any kind of information that will help them resolve this dilemma. Unfortunately, the information jurors give to each other in the deliberations room is often erroneous or incomplete. The "standards" jurors find on their own are out of the control of the lawyer, and therefore not necessarily helpful to the lawyer's case.
Giving jurors a standard by which to help them make decisions is invaluable. This standard of practice or procedure can be brought out during witnesses questioning. For example, in an insurance bad faith case, the attorney can encourage witnesses to talk about the standard procedure most insurance companies of a similar type use in paying disability claims. Jurors now have a gauge to determine whether X company followed acceptable procedures. In a case involving a defective product or an equipment failure, witnesses can be questioned concerning the standards for testing a product, recalling a product, and other standard practices and procedures.
In contract cases, witnesses can respond to questions regarding the usual and customary way X company handled its contracts, as well as the "industry standard" for such contract negotiations. When the attorney develops questions that educate jurors about what is considered normal and "fair dealing" in an industry or profession and how the client either conformed to these standards or had a compelling and acceptable reason not to conform, the attorney greatly facilitates the jurors' ability to see the case as the attorney wishes them to.
The use of a pre‑trial focus group is a highly effective way of finding what background information jurors will want to know during the actual trial. A focus group consists of individuals who match the demographics of the jury pool. The group then discusses the case among themselves with their deliberations recorded (audio, video or court reporter) so that the lawyer can benefit from their discussion. During this discussion, the participants will raise all sorts of questions, similar to the questions a jury would raise. Conducting such a focus group enables the attorney to find out what specifically the "real" jury will want to know, and thus can prepare questions to elicit this information from witnesses on the stand.
Attorneys cannot lose sight that they are the jurors' only way to obtain the information about a case. Attorneys, who can understand the jurors' need for information, can better prepare a case that will answer jury questions, resolve issues to the jurors' satisfaction and reduce opposing counsel's impact.
About the author: Noelle C. Nelson, Ph.D., is a trial and business consultant who provides trial/jury strategy, witness preparation and focus groups for attorneys. She is the author of the booklet, "101 Winning Tips: How to Give a Good Deposition and Testify Well in Court." Her published books include "A Winning Case" (Prentice Hall) and "Connecting With Your Client" (American Bar Association). www.dr.noellenelson.com, e-mail: email@example.com