Understanding how jurors experience your case is a skill—and it can be learned.
Some lawyers seem to have a special ability when they walk into a courtroom.
Jurors listen to them. Complicated facts become understandable. Witnesses seem more human. Important evidence feels important. And somehow, by the end of the case, the jury sees the case much the way the lawyer hoped they would.
What are these lawyers doing differently?
One quality I’ve observed in lawyers who are particularly effective before juries is their ability to anticipate how jurors are going to experience the case.
That’s harder than it sounds.
By the time we walk into a courtroom, we may have lived with a case for months or years. We’ve read the documents dozens of times. We know the witnesses. We know which facts help us and which ones hurt. We know the chronology. We know the law.
The jurors know none of it.
They encounter our case for the first time in the courtroom, bringing with them their own experiences, assumptions, values and common sense. Sometimes they see something in our evidence that we never saw at all.
The Cords
Years ago, I tried a product liability case involving a medical device that had severely injured a doctor.
During discovery, we requested an exemplar of the device so that we could examine it and eventually use it at trial.
It arrived in an upscale-looking case, beautifully packaged. Everything was neatly arranged. When you opened the box, the device looked sophisticated and impressive.
The device itself was handheld, with a trigger mechanism, and was connected by substantial cords to a larger unit. Once you took it out of its beautiful packaging, those heavy cords hung down from the device.
We used the exemplar in a jury focus group and passed it around.
The jurors immediately began talking about the cords.
What are all these cords?
These cords are scary.
This looks difficult to handle.
Those cords are really heavy.
I had spent a great deal of time with the case, but the focus-group jurors were experiencing this piece of evidence differently. They were holding it in their hands, feeling its weight and seeing the cumbersome cords hanging beneath it.
That changed the way I presented the device at trial.
I didn’t display it neatly in its box. Whenever I used it, I picked it up and allowed the cords to hang naturally beneath it. I didn’t need to give the jury a speech about the cords. They could see them.
We won the case.
Afterward, when we had an opportunity to talk with the jurors, several mentioned the cords. They told us that the cords made the device seem especially heavy and difficult to handle.
Did the cords win the case? Of course not. Trials aren’t that simple.
But they moved the bar forward.
And I might never have appreciated their importance if I hadn’t watched other people encounter the device without all the knowledge and assumptions I had accumulated while preparing the case.
Everybody Suffers
I saw the same phenomenon play out very differently in a defamation case.
Our client had left her employment with a good review and had been told that she was eligible for rehire. Later, when she applied for a position with a state agency, the agency checked her references.
Her former manager gave her a terrible reference and said that she was not eligible for rehire.
That statement was false. In fact, it directly contradicted a form the manager herself had completed before our client left.
We believed we had a very strong defamation case.
The damages, however, presented a different challenge. The false reference had a profound psychological effect on our client. She became extremely anxious about seeking employment, worrying that even if she obtained another job, someone might eventually discover the damaging reference. Her emotional condition became debilitating, and we had expert support connecting that harm to what had occurred.
We presented the case to a jury focus group.
The jurors had little difficulty finding defamation. They also awarded substantial economic damages for the employment opportunities she had lost.
But when we reached emotional distress and pain and suffering, they didn’t want to give her much of anything.
I listened to the discussion, and one comment caught my attention.
One juror essentially said, “Everybody suffers. Suffering is just part of life.”
Others agreed.
This was a rural Maryland jury pool, and that attitude resonated with a number of the people in the room. They believed our client had been wronged. They believed she had suffered. They simply didn’t place much monetary value on suffering itself.
Then another juror said something that changed the way I thought about the damages case.
She said, in substance, “Now, if she were suing for damage to her good name, that would be worth a lot of money. Your good name is the only thing you have in this world that you can hold on to.”
Almost everyone agreed.
That afternoon, we presented the case to another group. This time, when we discussed damages, we included the damage that had been done to our client’s good name.
The facts were the same. So was the harm. We had simply found a way to describe an important part of that harm in language that reflected something these jurors deeply valued.
The reaction was remarkable.
The afternoon group was willing to award approximately $1 million.
The case ultimately settled, so I never had the opportunity to make that argument to an actual trial jury. But I know exactly how I would have presented the damages if the case had gone to trial.
The jurors had taught me something about my own case that I hadn’t fully appreciated before.
Jurors Fill in the Blanks
A third case taught me another version of this lesson.
I represented a woman who had suffered a serious injury, gone out on disability for a period of time and eventually returned to work. She continued to suffer from carpal tunnel problems and, after making workers’ compensation complaints, was fired.
When we presented the case to a morning focus group, the jurors began developing an explanation for the termination that concerned me.
Maybe she had simply taken too much leave.
That made sense to them. And once the idea took hold, it affected the way they evaluated the case.
For the afternoon group, I added several check stubs that tracked our client’s leave balance.
Those records showed something very clearly. She was accumulating leave. At the time she was fired, she had approximately ten to twelve weeks of unused leave.
The afternoon jurors saw those records, and the concern about excessive leave essentially disappeared.
That experience has stayed with me because jurors naturally try to make sense of the story they’re hearing. When they encounter a gap, they may supply an explanation from their own experience. Sometimes that explanation can quietly undermine your case.
Jurors fill in blanks.
A trial lawyer needs to think carefully about what those blanks might be and, whenever possible, fill them with evidence before the jury fills them on its own.
Seeing the Case From the Other Side of the Jury Box
Jury focus groups are one way to learn how people experience a case, and in significant cases they can be extraordinarily valuable. The larger principle applies to virtually every case and every litigator.
Try to experience your case before trial through the eyes and ears of someone who hasn’t been living with it.
Ask yourself:
What will a juror notice when this exhibit appears on the screen?
What will they think this witness is really saying?
What part of the story requires more explanation?
What am I taking for granted because I’ve lived with this case for two years?
Is there a gap in the evidence that jurors may fill with an explanation of their own?
Which facts will they remember when they go home tonight?
And perhaps most importantly:
What will make them care?
Formal jury research can provide invaluable answers to those questions. There are other ways to develop the same discipline as well. Present a portion of the case to someone who doesn’t know it. Ask a colleague who hasn’t been immersed in the litigation to react to an exhibit. Test an explanation rather than assuming it’s clear. Pay attention to the questions people ask, particularly the questions you weren’t expecting.
The objective is to get outside the case you’ve been living with long enough to understand the case your jury is going to experience.
What Theater Taught Me About Audiences
My work in theater has reinforced this lesson for me.
A Broadway audience arrives without having spent months developing the production. They haven’t sat through rehearsals. They haven’t debated every creative decision. They simply experience what happens in front of them.
And you learn a tremendous amount by watching them.
Where do they lean in?
Where do they laugh?
Where do they become restless?
Where are they confused?
Where does the room become completely still?
Those reactions can tell you things that are extraordinarily difficult to see when you’ve been living inside the production.
I’ve found the same principle invaluable in litigation.
A jury encounters the case we actually present—not the case that exists in our heads, our files or our conference rooms.
The lawyers who are particularly effective before juries develop the ability to step outside a case they know intimately and experience it, as much as possible, from the other side of the jury box.
They pay attention to what jurors are likely to notice. They anticipate the questions jurors may be asking. They think about the meaning jurors may attach to evidence. They recognize the assumptions jurors may make when information is missing. And they find ways to make complicated information understandable, memorable and important.
The lawyers in the photograph accompanying this article may look like superheroes. But every litigator has the capacity to be a superhero in the courtroom.
Learning to see your case through the eyes of the people who will decide it is a skill. Like most of the skills that make someone a better litigator, it can be learned. And it can become your superpower.