Jury Strategies
Winning a jury trial ultimately means convincing the jurors to vote the way you want them to. And since jurors are human beings, there are strategies that lawyers employ to get jurors who are sympathetic to their claims and to tailor the presentation to specifically persuade them. A good litigator may try to do an objectively good job, or persuade the judge or the audience, and always will want to impress the client. But ultimately, convincing the jury is a top priority.
Why should you read this post about jury strategies?
You watched the Amazon original series Jury Duty and you want to know if you can win a fake trial, too.
You saw the movie Runaway Jury and you would want to know if any of that really happens if you were willing to admit you remember 90s Grisham movies, which are too old to be pop culture but not old enough to be classics.
You’re on a jury right now and want to know what the lawyers are doing to get you on their side.
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Jury Consultants
One thing that lawyers do before a big jury trial is hire a jury consultant to advise them about what themes may resonate with the jury and what types of jurors are more likely to support them.
Lawyers may focus on the specific facts and legal elements of a case, but jurors may see the case very differently. For example, a lawyer may see an employment dispute as a debate about whether a term in an agreement means a bonus is guaranteed or not. But the jury may see the dispute as a fight between young tech workers versus an older school system and therefore have an initial sympathy for one side or the other based on their own experiences.
Jury consultants bring these issues to lawyers’ attention so they can include those themes in their strategic decisions and in the presentations they make to juries.
Further, a jury consultant may also assemble a focus group to hear presentations about the case. Then the consultant can ask the focus group what they think, which gives lawyers insight into how a jury may deliberate about the case.
Jury Selection
Lawyers have some ability to shape who is on the jury. Picking people likely to side with them can make a huge difference.
Different courts have different procedures for picking a jury. In New York, lawyers for each side may work together without the judge to decide who is on the jury. In Massachusetts, the judge does a lot of the work with input from the lawyers. But some rules generally apply: jurors have to come from the pool of people in the jurisdiction from the court. Jurors often fill out a questionnaire about themselves and then, one at a time, lawyers may ask them questions. Then the lawyers may seek to strike the jurors for a good reason or (for a limited number of times) no disclosed reason.
If the first bunch of jurors that come up are unfavorable for a side, and that side used up its “peremptory strikes,” then that side may have to accept some jurors that may not be inclined to support them. Still, lawyers may try to use their challenges and strikes in a way that gets more people on the jury that may be favorable.
Lawyers may not discriminate based on race, but many other factors, like wealth, occupation, profession, and others may suggest to a lawyer a favorable or unfavorable juror.
Playing to the Jury
Everyone is different, and there is no secret to persuading any individual person. But in general, people respond to messages tailored to them. And so a good presentation to a jury often involves speaking directly to them. This means eye contact with the jury, and it means speaking towards the jury.
It also means being aware that the jury is new to the case or only knows what they have seen at trial. Therefore, any statements made by the lawyer should be made in a way that can be easily understood, and that provides context for, the juror.
Also, if the lawyer knows something about a juror’s background, such as where they grew up or what job they do, it may help the lawyer to make sure the language they use and the references they make are ones that they can expect the juror to appreciate. So a reference to brain surgery may go over better with a nurse than with a janitor. And a reference to a blizzard may be better appreciated by a juror from Chicago than a juror from Phoenix.
Most importantly, jurors may have limited attention spans. And so lawyers are always best advised to be concise and not bore a jury to death.