Are Your Jurors Using a Deliberation Process that Hurts You?
Deliberations are a scary thing for attorneys. It’s the time when you have to completely let go of your case and your jurors and hope that they do the “right” thing behind closed doors. You have no idea what they are saying, who is saying it, and whether your arguments are being understood and used to sway the jury toward the verdict you want. Just because jurors walk out of your sight, however, does not mean that you have no influence. There are ways to influence the content of deliberations themselves, but right now I want to talk about influencing the process of deliberations.
Group deliberations usually take one of two forms – either the group is process-driven or they are verdict-driven. (See many works by Pennington & Hastie) In a process-driven group, the members remain open to new ideas. The spend time thinking things through and looking at evidence before taking votes or trying to fit the evidence into a verdict choice. In a verdict-driven group, the members take votes early and often. Members feel closed off to new ideas and a verdict is often driven more by emotion than logic. If you are a plaintiff’s attorney (or criminal defense), you usually prefer a process-driven group. But how do you get one?
1. Influence the Choice of Foreperson. The foreperson is often very influential in determining the deliberation process as they control the discussions and call for votes. Often the foreperson is the one sitting at the head of a table or the most vocal or someone who simply volunteers. Tell jurors that the selection of a foreperson is an important part of deliberations. Ask that they take a few minutes to think about it and discuss it before deciding who to make foreperson and not to automatically select the first person to volunteer for the job. Ask jurors to think about the type of foreperson they want – do they want someone who will make sure everyone has an opportunity to speak and who will respect various opinions? Do they want someone who will dominate the discussion with their own views? The foreperson’s job is not to rule the discussions, but simply to facilitate them.
2. Give Jurors A Copy of Instructions. If it’s not standard in your jurisdiction, try to convince the judge to give enough copies of the instructions for each juror to have one. Sometimes the foreperson ends up running discussions simply because they are the only ones to have the law in front of them. If the foreperson is against you, this can be detrimental. They may even read the law incorrectly and the rest of the group would never know. If each juror has a copy of the instructions, they can better argue their points. Further, it pushes for a more process-driven group by allowing each juror to see and refer to instructions themselves.
3. Influence the Deliberation Process. In every mock trial or focus group that I run, I tell jurors that before they begin taking votes or deliberating, they should go around the room and allow each juror a few minutes to discuss their views of the case. This allows all viewpoints to be heard. If jurors start taking votes early, arguments that go against the group majority may never be heard due to groupthink and the oppressive power of a majority view. By pushing jurors to discuss issues in the case before committing to a verdict or voting, you will guide them to a process-driven deliberation process.
4. Control the Voting. Finally, suggest to jurors that after they have spent time considering issues in the case, they may all decide to take a vote. Suggest that they not vote unless every single juror feels they are ready to vote and remind them that it is perfectly normal and acceptable to change their minds throughout the deliberation process and between voting periods. Further, suggest to them that when they vote, they do so by secret ballot. This takes away any social pressures to conform to the group norm. Most juries vote by hand raise or by going around the table. These methods tend to pressure jurors in the minority to change their votes.
Although you cannot be in the deliberation room with your jurors, if you prepare them properly, you can still influence the process.