Best Practices for Trial: Insights for Lawyers from Actual Juror Feedback

In our jury research studies, we have the opportunity to present facts, evidence, arguments, and witnesses to mock jurors and gather their feedback for analysis. While the conditions of a controlled study such as a mock trial can closely mimic those of an actual trial, differences remain and many mock jurors have never served as a juror during an actual trial. So, what could we learn from those jurors who have served? What do they care about, and what insights might they yield that could be used by lawyers across trials to increase the odds of winning?

U.S. District Judge for the Northern District of Illinois Amy J. St. Eve and Gretchen Scavo of Winston & Strawn LLP set out to answer that question in an article titled “What Juries Really Think: Practical Guidance For Trial Lawyers [1].” Judge St. Eve asked jurors to complete a voluntary and anonymous survey at the conclusion of their service. Over 500 surveys were collected across approximately 50 federal civil and criminal trials in Chicago, spanning from 2011 to 2017. The results yielded rich insights into what jurors think about lawyers, and provide useful guidance on how trial lawyers can improve on their trial tradecraft.

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The four questions posed to the jurors were:

• Please list three things that the lawyers did during trial that you liked, in the order that you liked them.
• Please list three things that the lawyers did during trial that you did not like, in the order that you did not like them.
• What would you have liked to see the lawyers do differently, or better?
• Any other comments about the trial.

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Based on jurors’ feedback, responses were grouped into four main categories:

• Organization, Preparation, and Efficiency (“Jurors pay attention and can tell when attorneys are ‘winging it’ versus when they are prepared. Jurors expect attorneys to have a plan, know where the relevant materials are, organize evidence with opposing counsel, and proceed efficiently.”)
• Style and Delivery (“Jurors expect attorneys to excel at basic presentation skills, including appropriate eye contact and speaking loudly and slowly enough for the jury to hear and understand. They appreciate when attorneys are personable, and they do not like courtroom drama and theatrical presentations.”)
• Attorney Behavior and Other Professionalism Indicators (“Jurors frequently commented on the level of respect the attorneys showed to individuals in the courtroom, whether to opposing counsel, witnesses, the judge, courtroom staff, or to their own colleagues at counsel’s table. Professionalism extends not just to behavior but also to appearance.”)
• Evidence Presentation (“How attorneys elicit testimony and present other evidence, and the order in which they introduce it matters to jurors. Jurors prefer when attorneys use technology during trial to organize and present evidence. They also like when attorneys use timelines and make other efforts to marshal the evidence in a meaningful way….jurors despise—and are even insulted—when attorneys excessively repeat questions and concepts.”)

Within these categories, certain refined themes were identified. Jurors had the most positive responses towards lawyers concerning:

• Organization/preparation/efficiency,
• Delivery/style of presentation, and
• Good behavior towards opposing counsel, witnesses, and/or the jury.

Jurors had the most negative responses regarding:

• Excessive repetition
• Unprofessional conduct
• Bad behavior towards opposing counsel, witnesses, and/or the jury.

Jurors thought that lawyers could do differently or better with:

• Organization/preparation/efficiency
• Presentation of more and/or better evidence
• Presentation Delivery/Style

In short, preparation is key. If you make things easy for the jurors, they’ll notice and like you for it.

Judge St. Eve’s jurors commented that they:

• Liked that attorneys were “very organized” and “did the trial in a timely manner”
• Wished the attorneys would have “prepare[d] more thoroughly so that their evidence isn’t missing or that they can’t think of the next question without long pauses”
• Wanted to see “better preparation, more to the point questioning with much less fluff,”
• Did not like the attorneys’ “lack of preparedness— [they] seemed to wing it,” and suggested that they have a “better plan” and a “better execution of plan”
• Wanted to see attorneys “be more concise,” and noted that “brevity and clarity are so important.”

In our own jury research studies,

we find that mock jurors frequently echo these sentiments. While the condensed nature of jury research naturally lends itself to streamlined presentations, mock jurors appreciate it when we get to the point. Jurors value their time as much as anyone else, and appreciate efficiency over palavering.

Judge St. Eve and her co-author offered the following takeaways from juror comments about attorney presentations: “…attorneys should attempt to make a connection with the jury and should not overlook the positive impact of basic manners in doing so. Introducing yourself at the outset of the case, speaking to the jury directly, and making appropriate eye contact with the jury will go a long way toward establishing a connection with the jurors. One juror, for example, called out the defense attorneys for failing to introduce themselves to the jury in opening statements. It is quite remarkable that even after the trial and jury deliberations, this particular juror remembered the attorneys’ failure to introduce themselves at the very outset of the case.” The authors note that “while displaying a sense of humor can go a long way with a jury, attorneys should be careful not to take it too far,” a sentiment echoed by research. Female jurors’ liked attorneys more when they used a moderate amount of ingratiation effort during voir dire (compliments, making jokes, showing empathy/concern, and making mutual acquaintances known).^[1]

There was no difference in attorney likeability for male jurors whether the attorney displayed no ingratiation, a moderate amount, or a high amount.

A recent Gallup poll indicates that Americans generally distrust lawyers^[2]and thus jurors could harbor negative sentiments prior to voir dire questioning. If the voir dire is led by the lawyer, the negative sentiment can be further exacerbated; one study found that over half of potential jurors felt that voir dire made them feel uncomfortable, seemed unnecessary, or was too personal._[3]Subverting expectations by keeping your word can help dispel this sentiment, and bolster your liking with jurors. If you promise jurors that the “evidence will show” or that they’ll “hear from a witness who will say…” be sure to follow through. If you’re not able to, be sure to raise the issue and explain why in your closing. Be careful, as jurors do not like when attorneys present new arguments or concepts for the first time during closing argument (one juror disliked that the defense “brought up an idea in the closing arguments that had not been previously discussed at all”).

In the end, many of the sentiments expressed by actual jurors are congruent with what we see in our jury research with mock jurors and empirical psychological research. Attorneys would be well-served to follow Judge St. Eve’s advice. When prepping for your next trial, make things easy for your jurors by streamlining your case narrative and developing effective demonstratives. Your jurors (and client) will thank you for it.

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[1]St. Eve, Amy and Scavo, Gretchen, What Juries Really Think: Practical Guidance for Trial Lawyers (March 30, 2018). Cornell Law Review Online, Volume 103, Available at SSRN: https://ssrn.com/abstract=3155198

[2] Brodsky, S. L. (2006). Ingratiation in the courtroom and in the voir dire process: When more is not better. Law & Psychology Review, 30, 103-117.

[3] https://news.gallup.com/poll/328136/ethics-ratings-rise-medical-workers-teachers.aspx

[4] Rose, M. R. (2001). Expectations of privacy? Jurors' views of voir dire questions. Judicature, 85(1), pp. 10-43