Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented? It’s highly probable. It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.
This blog is named “jurorproof” for a reason. Most everything I post about has to do with proving your case to jurors. That may sound obvious, but please make sure you understand the significance. There is a huge difference between “legal proof” and “juror proof.” Legal proof is what you have to prove to meet the elements of the claim. The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form. But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner.
For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury. Jurors may care about your client’s hopes for the future. They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups). They care that there was no secondary backup system for files even if not required. These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.
In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story. Is this just in mock trials?
Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries. The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie. Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds. But that’s not what matters to them.
So what does all of this mean for you? For one, it means that you need to fill in gaps in your story before the jurors do it for themselves. One thing that makes for a believable story is that it is comprehensive. The less gaps the better. I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial. But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves. This is something they will care about. Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof. Deal with it in voir dire.
Secondly, do some research. Find out ahead of time what juror proof for your case is. The only way to do this is to talk to real people – people who match the demographics of your trial venue. If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors. Go to a mall and talk to strangers about your case. Buy them a coffee or ice cream in exchange for their time. Without that feedback, you would never know that having a living will means having a death wish to jurors, for example.
Don’t go into trial blind to the juror proof. You would never go into trial without knowing the legal proof you need to fulfill. This is no different and equally important.