Following is a summary chapter that holds the lessons you will learn from the jurors throughout the book. As you prepare for trial, we hope you will use this summary to help you quickly revisit the primary tenets of The Jury Rules. Of course, we encourage you to read each chapter carefully and pay special attention to the words of the jurors.
The Jury Rules: Attitude
Rule 1: Respect the Process
Courtrooms are located in government buildings with wood paneling, presided over by a judge who sits in an elevated throne-like position above the jurors, lawyers, observers, and parties in dispute. The courtroom is a solemn place where serious issues are resolved. In nearly every interview we conducted, one thing that came through was the importance jurors placed on his or her surroundings. The aura of the courtroom caused them to feel that what they were doing was important. One juror compared his experience to being in church. For those of us who spend our days in court, it is our job to maintain that solemn environment. That means showing the proper level of respect for the process and the players. No matter how much we think that a thundering “you can’t handle the truth” moment is a good examination, jurors expect something different. They expect you to be respectful. This means treating the jury, the courtroom staff, and witnesses with respect and dignity—at all times. Rule 2: Be Prepared Jurors expect you to have mastered your facts and evidence before trial. They expect you to know the law, rules of evidence, and the judge’s preferences, too. From the jury’s perspective, what does it mean for a lawyer to be prepared? As one juror told us, he expects the lawyers to “know what they are going to do before they do it.” If you wait to prepare until you arrive at the courthouse, the jury will know it. Jurors told us that they expect lawyers to “only ask the questions that matter” and “get to the point.” When using technology or playing videotaped depositions, the jurors tell us they don’t want lawyers to “stumble over admitting exhibits” or “fumble around;” instead, they expect things to be “cued up and ready to go.” As described fully in this chapter, the best method to ensure that you do not run afoul of the jury’s expectations is tireless preparation before you enter the courthouse.
The Jury Rules: Effective Trial Presentation
Rule 3: Be Credible
The jurors told us that the most important attribute of an attorney or witness is credibility. They describe in vivid detail why they trusted some lawyers and witnesses and why others were considered untrustworthy. Even though jurors do not spend their days in courtrooms or possess law degrees, they are masters in the art of judging people. That is why we have this process in the first place. Like you and me, they size people up every day and decide who is trustworthy and credible. Their life experiences qualify them as credibility experts: they raise children, they deal with office politics, and they navigate the in-laws visiting for the holidays. They know when someone is manipulating them or telling half of the truth. Our analysis of the interviews established that, in each case, the jury is looking for a guide. The guide is the person who will lead them through the forest of witnesses, documents, and trial procedures to help them find their way. If you can become their trusted guide, they are likely to follow you home—to a favorable verdict for your client.
Rule 4: Set Expectations
Most jurors don’t know what to expect when they appear for jury duty. During their interviews, we heard them wonder, “How will this affect my life?” and “How long will it take to finish the trial?” They worry about how their bosses will react to taking time off for jury duty (“Can I be fired?”) and whether they can fulfill the promise to attend a daughter’s soccer game by 6 p.m. on Thursday. If the judge does not provide guidance about the length of the trial, it becomes the responsibility of the lawyer during voir dire. Your jurors are a blank slate with respect to courtroom processes so take advantage of your tabula rasa to teach them. You will start to earn their trust and gain credibility. One juror aptly told us that her experience was “nothing like it appears on T.V.” After all, as the jurors told us, they wanted the lawyers to tell them how many witnesses would be called to testify, how long each will be on the witness stand, and why the testimony and other evidence being presented was important. Immediately before closing argument, when the jury charge and verdict form are read, jurors find out what is important to the judge. Jurors told us that after reading the questions they were supposed to answer in the jury charge, they were surprised by how the lawyers had spent their time during the trial. Jurors told us they want lawyers to more carefully structure their cases around the questions in the jury charge. When you accurately set expectations for the jury, you become a person of influence, a good role to have when the jurors’ final decision—the answers to the questions in the jury charge—is being made.
Rule 5: Be Sincere
In this chapter we analyze what strategies and tactics the passionate advocate can use to capitalize on the jury’s desire to do justice. Jurors told us they respect, and even admire, lawyers who advocate zealously for their clients. A juror bemoaned one lawyer for just “going through the motions” and thought that the lawyer “shouldn’t represent the client if [he didn’t] believe in the case.” Another juror wanted to know she was “doing the right thing” by her verdict. What do jurors think of crying? What about the personal injury plaintiff claiming back injuries who wore three-inch heels every day of the trial? Conversely, jurors also describe how unpersuasive purely emotional arguments are.
Rule 6: Be Transparent
Jurors repeatedly told us that they believed some lawyers and witnesses were trying to hide the truth. In Texas, state trial court judges instruct the jury that they must consider all the evidence admitted in the case, but the jury decides how the evidence is to be weighed. Being transparent means understanding that to the jury there is one case that has all the evidence. The jury doesn’t separate plaintiff’s facts and defendant’s facts; jurors don’t care whether the plaintiff or defendant offered an exhibit or called a witness to the stand. But something they will not forget is who objects; and as they told us, they will not forget who tries to hide information from them. In this chapter, jurors teach us that there is a difference between making every possible objection in order to get an “A” on a law school evidence examination and making the right objections in a courtroom. In their interviews, jurors recount how successful evidence objections affected the lawyer’s credibility and the client’s case during their deliberations as they wondered out loud: “What was he trying to hide from us?” or “Why can’t we listen to the whole conversation on the tape?” or “Why were those documents redacted?” Jurors expect the lawyers to be responsible for all the facts. When we aren’t, jurors think the lawyer “must have something to hide.” Experienced trial lawyers know that every case that goes to trial has good and bad facts for each side. Great trial lawyers know how to account for the bad facts and explain to the jury why they do not matter or how the conclusion being urged remains the right conclusion, despite some bad facts.
The Jury Rules: Putting on Your Evidence
Rule 7: Get to the Point
Like you and me, jurors have spouses, kids, jobs, and lives they want to get back to. They willingly give their time in jury service, but it is our job to make good use of it. We have to ensure that we demonstrate through our words and deeds that we appreciate and value the time jurors are giving to help our clients resolve their differences. How do we show jurors that we are making efficient use of their valuable time? Jurors tell us they appreciate it when “all of a lawyer’s questions seem to matter” and do not like it when “lawyers just kept droning on” until they can find the right documents. They also do not like waiting while lawyers look for documents, struggle with technology, or try to decide what witness to call next. One juror asked, “If you’ve had this case for five years, how do you not know everything about it already?” Another pet peeve of jurors is when they keep hearing the same thing “over and over and over.” It makes them wonder, “Do you not think we heard you the first time, or the second time, or the third time?” In this chapter jurors describe ways that lawyers creatively communicated important information and the positive effect it had on their decision-making process.
Rule 8: Stay Focused
The trial lawyer’s singular goal in the courtroom is to effectively communicate the facts, themes, and conclusions in a clear and memorable way. Anything that distracts from this goal hurts our client’s case. Jurors described how lawyers’ mannerisms, nervous ticks, and bad habits distract them. In this chapter we analyze the danger of a distracted jury. Jurors described how they had competitions to decide how long an attorney would drag out the “o” in “so” before each question on cross examination; or in another trial, they counted how many times an attorney twisted his eyebrow each day. One juror lamented the use of “air quotes” which, in his opinion, showed bad manners; and regardless of what Miss Manners would say, it caused jurors to fixate on “coming out of the jury box if we could to tie his hands to his sides!” These stories are humorous unless you are the lawyer with the distracting habit—or worse—the client whose lawyer is distracting the jury from your best arguments. Ask yourself this question: is the jury counting how many times you twist your eyebrows? Is the jury plotting to tie your hands to your sides? If yes, what is the likelihood that the jurors are paying attention to the substance of your client’s case?
Rule 9: Use PowerPoint Slides and Demonstratives Effectively
Jurors tell us that effectively using demonstrative evidence is a powerful trial skill. Entire books have been written on effectively using PowerPoint slides. Graphic design firms have been established solely to assist lawyers in creating demonstrative evidence at trial. One juror described how a demonstrative exhibit showed how “tragic” an accident was and “helped her see clearly how everything happened.” Another juror, who was an actress, provided a detailed analysis of how demonstrative evidence should have been used in her case but wasn’t. Too often lawyers present confusing graphics or slides with twelve bullet points and a page worth of words. Neuroscience teaches us that loading slides with too much information causes a phenomenon we call “juror overload.” In this chapter we explore describing how lawyers effectively use demonstrative evidence to enhance their trial presentations and to ensure that jurors understand and remember the key points of their clients’ cases.
Rule 10: Present Credible Witnesses
It is hard to over-emphasize the importance of choosing the right witnesses and preparing those witnesses to tell your client’s story. Recognizing this, it is now common for jury consultants to offer “witness school” for problem witnesses. Witnesses actually attend classes and preparation sessions where they learn how to answer questions in a way that makes them look truthful. In the jury’s eyes, the lawyer is the chief spokesperson for the client. While they look to the lawyer to be the guide, they also remember that the judge has instructed them that what the lawyers say is not evidence. Instead, the jurors are told to consider the evidence admitted during the course of the trial. For this reason, who you choose to testify and how each witness presents to the jury are the foundation for your case. When a lawyer’s arguments are not backed up by credible testimony from witnesses, jurors describe the effect on their decision-making process. One complained about her difficulty in judging the credibility of a witness who was presented by reading a written deposition (rather than offering videotaped deposition testimony or live testimony) because “ninety percent of what the person is saying is how they are saying it.” In this chapter, the jurors provide a detailed description of what makes a credible witness.