Roger Davidheiser* Successful attorneys are faced with much more than simply proving the facts of their case. Since the ultimate goal in jury trials is to convince jurors that your client is either innocent, or the defense’s client is guilty, there are psychological factors that must be considered to win the battle of persuasion.
Here, we are going to discuss just a few of those psychological factors:
During the jury selection stage, since attorneys want to select people who will bolster their chances of winning, they need to get prospective jurors to reveal key aspects of their knowledge and personality to clearly show who the best candidates are.
Attorneys need to use positive reinforcement during the juror selection process. It can help to increase the likelihood that they will be open about their beliefs and knowledge of the subject matter.
Thomas Mauet, who directs the Trial Advocacy Program at The University of Arizona, says that the majority of jurors are “affective thinkers.”
In his book Fundamentals of Trial Techniques, he writes that “People have two significantly different decision-making styles. Most people are primarily affective, not cognitive, thinkers. Affective persons are emotional, creative, impulsive, symbol oriented, selective perceivers of information and base decisions largely on previously held attitudes about people and events.”
This means jurors not only come to a trial with fully formed positions, including attitudes, opinions and even prejudices, they will also likely reach key decisions very early in the trial, even if those decisions are based on a small amount of information.
It will also likely be tough to persuade them to change their minds after the fact. The psychological theory for why jurors make decisions quickly is that when they are bombarded with information (often conflicting), this creates psychological stress, so they are looking to reduce this stress as quickly as possible through cognitive resolution.
Therefore, lawyers must put their best foot forward very early in the trial, realizing that opinions are beginning to solidify as the opening statements and early evidence are presented.
Style Over Substance?
Oral testimony needs to be clearly communicated with simple language, but not simplistic; and confidently without being condescending. But winning jurors over is more about how something is said than what is actually said.
While substance absolutely matters, visual communication techniques play a vital role.
According to Mauet, “communication is approximately 60 percent kinetic (appearance, gestures, body movement), 30 percent paralinguistic (voice inflection), and only 10 percent word content, trial lawyers must learn to read the kinetic and paralinguistic cues that jurors send during voir dire, witnesses send while testifying, and lawyers send throughout a trial.”
The jury system in this country was created to safeguard our citizens from tyranny. The right to be tried by a jury of our peers is an essential aspect of our legal system, but that doesn’t mean it’s perfect. Jurors, even smart and well-intentioned ones, come with inherent biases that need to be accounted for if an attorney expects to win their case.
Roger Davidheiser is a Senior Trial Attorney with Friedman Rubin in Seattle, Wash. Backed by 24 years as a lead county prosecutor, Roger serves plaintiffs suffering from serious personal injury, wrongful death and insurance bad faith.