After the Verdict: What Jurors Want to Hear and What to Avoid at Trial
One of the biggest learning opportunities in trial practice actually occurs after the trial. Many courts usually allow the attorneys to interview jurors after they have rendered their verdict. While many jurors may rush out of the courtroom to get home after they have done their civil duty, there are a few that will stay behind because they are interested in the process, and they want to find out more about the strategies employed by the attorneys during trial. Speaking with the jury after trial is probably one of the best opportunities to see what things were most effective during trial and what can be improved.
In a recent third-party insurance trial, we had the opportunity to speak with the jurors after the trial. Here are some of the highlights of the things that those jurors wanted to hear during trial, presentation styles they preferred, and what they were most interested in learning:
One of the things the jury wished they knew during trial was whether insurance was involved. Because of the collateral source rule, parties are not permitted to discuss insurance during trial. Many of the jurors assumed there was no insurance because insurance should have resolved the matter. Perhaps that is precisely why the collateral rule exists – the introduction of insurance at trial would likely inflate the amount of money awarded by juries because jurors would think that insurance companies have the deep pockets to pay any damages they award instead of valuing the case to determine what would wholly compensate a plaintiff.
2. Repetitive Questioning of Witnesses
Having the opportunity to talk to the jury after trial allows both parties to learn what presentation styles are effective. In our recent trial, two of the attorneys of one party were criticized for repetitive questioning of witnesses. Specifically, one juror commented that it was very difficult to sit during trial and listen to the same question repeatedly asked in different ways.
One of the most important things during trial is to keep the jury engaged. Some studies have shown that the average attention span of an adult is 20 minutes. It is important to keep examinations of witnesses succinct to hold the jury’s attention. Additionally, front-loading the most important issues of a direct and cross-examination and ending the examination on an issue that favors your argument helps the jury to retain the most important points of your argument. Even if the jury does not pay attention to everything else in the middle, they will likely remember what was said in the beginning and at the end of each witness’s testimony.
3. Framework for Evaluating the case
Juries like to have a framework for evaluating the case. One of the jurors in our recent trial commented that a timeline of events is helpful because it shows gaps in treatment. Although testimony may be elicited from witnesses that reflect gaps in treatment and the jury may retain that information, some jurors like to have that confirmation at the end of the trial with a summary of the timeline of events.
Providing the jury with a specific dollar amount for each element of damages was also helpful to the jury in our most recent case. One of the most difficult things for the jury to do was to quantify damages like physical pain and mental anguish. Plaintiffs’ attorneys will often specify a particular amount for each element of damages. On the defense side, some attorneys like to state at closing argument that the jury should just give the plaintiff the amount of money that is supported by the evidence, while in other cases, the defense attorneys will state a specific sum. For the jury in our most recent trial, they found it helpful for counsel to state that they could award zero for some of the elements of damages because it gave them a range of zero to whatever amount counsel for plaintiffs provided.
4. Why We Picked Them
Finally, the one issue that jurors love to know more about is something that is not related to the evidence at trial – they want to find out why they were picked. Jurors are likely to be chosen because no challenges for cause were made against them and neither party used a peremptory strike to exclude them. Thus, jurors tend to be chosen because they are the least biased to one side or the other compared to all the other jurors.
In some cases, however, they may be more biased to one of the parties, but a particular party may not have sufficient challenges for cause or enough peremptory strikes to exclude them from the jury. For example, in our most recent trial, we had a fairly conservative jury pool which was favorable for our client. After challenges for cause were made, the court determined that we would reach a certain juror in the panel if each party used their peremptory strikes and none of the strikes from the parties overlapped. Upon reviewing the jury panel list, we determined that we needed to get to the last juror available because his discussions during voir dire indicated that he would be receptive to our view of the case and the claimed damages.
One of the most important aspects in jury selection is anticipating who plaintiff will strike, and in this case it was very important to prevent any overlapping peremptory strikes to reach that last available juror. Fortunately for us, we did not strike any of the same individuals stricken by plaintiff, and the juror we wanted was chosen and seated on the jury. Although that juror was not present to discuss the case after trial, other jurors confirmed the juror was very defense-oriented and was a strong advocate of awarding no damages. Although our advocacy for this case ended at closing argument, our client had an advocate during jury deliberations through that juror.
Whether an attorney has been in practice over twenty-five years or six months, talking to the jury after every trial is essential. Learning about what the jury liked or did not like at trial not only helps improve an attorney’s effectiveness in advocacy in the courtroom, but it also helps an attorney gauge whether his or her evaluation of the jury panel is accurate.