We all make quick, subjective assessments of how “involved” any one juror might be in a trial. “He looks bored.” “She takes lots of notes.” “#3 smiled at our expert.” I don’t know how seriously we ever take the idea of juror involvement, but it turns out that it is a factor that needs to be considered.
Petty and Cacioppo have conducted some interesting experiments in persuasion [i.e., Communication and persuasion: Central and peripheral routes to attitude change, 1986]. Although their research is not specific to juries, a few of their findings are. For instance, the interaction of the factors of “issue involvement” and “attitude change” are clearly juror issues.
“Issue involvement” is the degree to which the message receiver [juror] will be affected by the information or outcome of a decision based on that information. I can think of 4 categories of juror “issue involvement” in your trials. Involvement may come from:
1. the topic of the case may be one that is close to the life experience [job, education, family member in the field, etc.] of a juror.
- These jurors typically present a conundrum in jury selection:
- do we keep them because they “know stuff” or
- do we challenge them because they “know stuff?”
2. the relatability of the people involved in the case to the juror
- creates the similar type of conundrum:
- do we keep or challenge them because they “are like our side” or
- do we keep them or challenge them because they “are not like our side?”
3. a sense of duty that someone might have for serving on a jury, topic or parties aside. “I take my role in this community seriously and will serve diligently because of that.”
- or, the “no-way-in-heck should I be a juror” level of involvement:
- The juror who feels personally inadequate to understand the case;
- The millennial who only sees the world from the point of view of “what’s in it for me right now?”
- All the others who fear COVID, job loss, child care, language issues, personal health issues that do not rise to the level of automatic release, etc.
“Attitude change” has to do with the decision the jury has to reach. A verdict is an “attitude change” because most of the people left on the jury won’t agree 100% with either side. If they did, they got tossed for cause or they got challenged. Those left on the jury need an attitude change to see the case your way.
It is the interaction of issue involvement and attitude change that becomes important. This interaction crops up in several ways in trial. Basically,
~ people who have high issue involvement are more likely to change attitudes based on the quality of the information they receive; while,
~ people who have low issue involvement are more likely to change attitudes based on the expertise of the source of the information.
Look at this simple example:
- Imagine a water rights case being argued to a Federal Water Master. The case is full of water rights expert witnesses, including engineers, lawyers, hydrologists, and statisticians. The decision-maker has high involvement [it directly affects their career], so it is more likely their decision will be based on the quality of information presented.
- Imagine the same case being argued to a jury [because the prior decision was challenged up to a Court]. The case still has all the same witnesses, but now the decision-maker [jurors] probably have relatively low issue involvement. Now the decision is going to be made on the qualifications of the experts, not the content of what they have to say.
Most real trials are going to have a mix of topics and fact and expert witnesses that might touch on the lives of various jurors. To make this Tip useful to trial attorneys, my Top 4 thoughts are these:
1. Try to design some voir dire questions that tease out how involved any potential juror might be.
- “Ms. Z, I see that you run a water softener business. This case involves water laws. How do you see that this case might impact you or your business? How interesting is this water topic to you overall?”
- “You all have heard a little about the case from the judge. How much do you think this trial will involve parts of your lives?”
2. Try to design your opening story to capitalize on some of the places in the case that might have high involvement among the jurors. “Surface water and ground water affect us all in some way. Through this case, you are going to learn some things that had to happen in the legal system so that when you turn on your tap at home, something comes out . . .”
3. Anticipate which jurors might be the leaders in a discussion and focus on their level of involvement. If you can solidify their attitude change, they will speak for you in deliberations.
4. Think about how technical / understandable your experts might be.
- If they are good presenters and can simplify their opinions and can speak to the high involvement jurors, let their content guide their message.
- “I see, Dr. M, that you have brought a glass of water and a straw to the witness stand with you today. How can these props show us how water rights priorities work?”
- If they are academic, heady experts with nothing to offer to us normal folk beyond jargon, then do three things:
- Don’t short-change the expert voir dire. Remember from an earlier Persuasion Tip © that when a judge pronounces the expert as an expert, their testimony is believed more by a jury than and expert who is stipulated to by both sides.
- Have a PowerPoint slide with all their credentials prominently listed. Sometimes even just the sheer number of entries on the slide marks them as extremely qualified.
- Have their conclusions up on the next slide, all in plain English, during their entire testimony. They finish a topic and you refer the jury back to “Well, so that is what brought you to your Conclusion #3, correct?” The low involved juror just needs to know credentials and the conclusion to change their attitude.