Academic journal article Defense Counsel Journal

The Missing Link: Connecting Key Evidence to the Jurors

Academic journal article Defense Counsel Journal

The Missing Link: Connecting Key Evidence to the Jurors

Article excerpt

WHEN we speak, we hope to be heard and understood. When trial lawyers speak, they hope to be heard and understood, but they also hope to persuade. Unfortunately, too often in the course of a trial, attorneys let opportunities to persuade jurors pass them by. They present crucial case information, trying to use clear easy-to-understand language in a dramatic and memorable way, but jurors are unmoved. Why? Often, the problem does not involve language, presentation, or style, but "the link." There is a missing link for jurors. Information is laid out in front of them, but its relevance is never made clear to them. Or worse, the information is simply never going to be relevant to them, no matter how artfully it is presented.

On one hand, attorneys are presenting what they believe is important and relevant information. On the other hand, jurors--who have their own ideas about what is important--are scratching their heads and wondering why the lawyers are discussing a particular topic, trying desperately to discern the point that lawyers are trying to make. Ultimately, jurors wonder why lawyers are wasting their time.

Three Inaccurate Assumptions that Lead to the Missing Link

Why does this missing link occur so often at trial? Attorneys make three inaccurate assumptions about jurors. First, attorneys assume that the most important case issue for them will also be the most important case issue for jurors. For example, in some corporate conspiracy cases (where a small company claims it was victimized by a conspiracy at a larger company), defense attorneys often assume that jurors will be most concerned with whether a conspiracy actually existed inside the larger company. Based on this assumption, attorneys focus on evidence about the lack of motive or the absence of meetings between alleged conspirators. Attorneys even put together detailed timelines to make it easy for jurors to understand that alleged conspirators would not have been able to meet, but often jurors remain unmoved, primarily because whether a conspiracy technically existed is not the most important case issue for them; they usually just want to know whether the small company was treated fairly and whether a pattern of bad or abusive conduct on the part of the large company exists.

Second, attorneys assume that evidence they believe is relevant will be equally relevant to jurors. For example, tutorials about the technology involved in a patent dispute often fall into this category. Attorneys see these tutorials as highly relevant and ironically, in post-trial interviews, jurors often say they enjoyed the tutorials and found them helpful. Jury research reveals that jurors rarely use this information to decide whether there was infringement or invalidity. Instead, their infringement decisions are usually based on whether there are simple commonsense differences between the patented technology and the allegedly infringing technology, not on an educated understanding of the nuts and bolts of the technology.

Third, attorneys assume that jurors will connect the dots on their own--that jurors will accurately link key evidence to their verdict decisions. While the link may be obvious to the trial team, jurors cannot always be counted on to see the immediate relevance of evidence presented during a trial. A significant portion of expert witness testimony unfortunately falls into this category. Experts frequently delve into the minutiae of a case without telling jurors why these details are important to their ultimate decisions. For example, an expert in a medical malpractice case might give jurors a commonsense, easily understood explanation of how the liver works. Jurors may understand the testimony, but have no idea how they are supposed to use the information to make a verdict decision about whether the defendant hospital was negligent. It is not a failure of understanding; it is a failure of linking. As a general rule, jurors aren't lazy, but they often don't appreciate why a particular piece of information is important for them to remember and use. …

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