Attention Grabbing, Or Else

Jury consultant Harry Plotkin offers up some sounds advice for a troubling situation in his tip of the month.  The problem is that today’s venire ain’t what it used to be.

Ten years ago, Generations X and Y were a growing minority of the jury pool. According to data from the 2007 census, they make up 52% of the jury pool nationwide, and that number is growing every year. Think about their numbers and their expectations. More than 50% of today’s jury pool was 15 or younger when CNN Headline News began presenting the news 24 hours a day, every 30 minutes. 30% of today’s jurors were 15 or younger when CERN released the World Wide Web in 1991. 22% of today’s jurors were 15 or younger when online dial-up to the internet became available and 17 or younger when cell phones became widespread. The younger jurors just entering the jury pool were just ten years old when text messaging became widespread and iTunes allowed users to immediately download music.

Let’s be clear about what this means.  These aren’t job applicants, or emerging lawyers, but the “peers” to whom we try our cases.  Like it or not, they are here and sitting on our juries.  While under other circumstances we can fight the Slackoisie mentality, it’s both impossible and insane to try to change the basic attitudes of our jurors; they are not ours to mold, but ours to persuade. 

And their expectations of a trial are different.  They are easily bored and intolerant of presentations that don’t get to the point.

What matters most, more than ever these days, is that you keep your jurors engaged in the trial and focused on the things you want them focused on. Jurors try their best, but they won’t pay attention to everything you present to them in a trial, and they’ll remember even less by the end of the trial. So your jurors’ attention spans are limited, their memories are limited, and–perhaps most importantly–their patience is limited, and that’s the main focus of this month’s tip.

If you thought the MTV generation was difficult, the computer generation is worse.  At least the former watched whatever video appeared on the screen.  The latter has Youtube, and believes that they are entitled to be in constant control of their environment and experience.  They are not inclined to tolerate sitting quietly while a lawyer spoon feeds them.  They know better.

So what should you do differently? First, never present your case in an entirely spoken format–jurors don’t listen to the radio much these days, they expect to see things, and they learn as much visually as they do aurally. Jurors expect to see your case–documents, emails, maps, schematics, photos, or whatever you’re talking about. You don’t have to wow the jury with a high-tech presentation, but jurors want to see, not just hear, your case. If you’re talking about a car accident or an eminent domain dispute or a machine in a product liability or patent case, make sure to SHOW the jurors a traffic map of the lanes and roads, or a property map with boundaries, or a schematic of the machine, immediately. Once you start discussing and describing something that your jurors want to visualize, you’ll frustrate and confuse your jurors if you wait before showing them a picture. Anticipate what the jurors want to see, because once the jurors want or expect to see something and don’t get to, they’ll become very frustrated and lose focus.

This presents a significant problem for criminal defense.  Rarely do we have visual exhibits to offer, as it’s the prosecution that has to make its case and has evidence to fabricate and offer.  We have no obligation to put on a case, and, indeed, typically have no case to put on.  We can use the prosecution’s documents, exhibits, etc., but then we have no control over what they create and offer, and, more importantly, don’t want to highlight their exhibits which tend to be bad for our clients.  After all, that’s the point of the prosecution, to prove guilt.

In short, we’ve got a bunch of jurors who expect us to show them something, and we’ve got nothing to show.  While we focus our efforts on cross-examination, picking apart the testimony of the prosecution’s witnesses, it’s just boring noise to these jurors.  They want us to put on a show for them or they will grow bored and lose interest.  And they want the trial over in an hour so they can check their emails, text messages and twitter. 

Even if we have some visuals to offer, we have the problem of getting them before the jury.  We need a witness, and unlike the prosecution, don’t have a bunch of cops at our disposal to use.  We might be able to call an expert, but are frequently rebuffed in those attempts as being unnecessary given the jury’s scope of knowledge, even assuming that our clients can afford to pay the witness.  It’s a stretch at best.

While not addressed, Plotkin’s views suggest that these jurors will not be satisfied with an instruction by the court that the defendant has no obligation to testify, and that they cannot draw any inference from his remaining silent.  While we have long known that jurors want to hear defendants take the stand and deny they did it, these jurors may well be totally incapable of processing the judge’s words and unwilling to accept the notion that a person who doesn’t want to be convicted would fail to testify.  They want to see the defendant deny his guilt, and won’t accept anything less.

And if that’s not problematic enough, Plotkin takes it farther:

 

Aside from how quickly they demand information, Generation X and Y jurors are generally more cynical than older jurors. They grew up in a world with lawsuits, corporate scandals, and written contracts for every agreement instead of handshakes and trust. They’re not necessarily more prone to favoring plaintiffs or defendants, but they tend to be more critical of plaintiffs, less trusting of defendants, and tend to have higher expectations of what the litigants “should have done” better.

While this cynicism cuts both ways, the defendant will be the one left without any showing to satisfy their demand for evidence.  If they come into court cynical, then there is little expectation that they will honor the presumption of innocence or the burden of proof.  They will sit back and demand that both sides satisfy their curiosity, and do it on their terms.

Harry Plotkin makes some important points about the changing dynamic of the jury pool, and how the expectations and demands of the digital world are changing the way jurors think.  Unfortunately, this bodes poorly for the criminal defense lawyer, as we have very little to offer to counter their demands. 

If Plotkin is right, and I suspect he is, our mastery of words may not be sufficient as our jury pools grow younger and demands grow higher.  It may do well to include a class in tap-dancing in the law school curriculum, because that may be the only show we’re able to put on.

15 comments on “Attention Grabbing, Or Else

  1. John Burgess

    May I suggest that defense attorneys would profit from reading the works of Edward Tufte?

    Tufte is expert on ‘informational graphics’, i.e., turning data into images. It may not be possible for attorneys to contract for excellent graphics, but they should at least understand how graphics are fudged.

  2. Windypundit

    I’ll second the recommendation of Edward Tufte’s work on graphic presentations of data. I can’t vouch for its applicability in the courtroom, of course, but lots of scientists and engineers swear by it. I don’t know if that helps you. But they’re still great books.

  3. Lee

    The problem with this, it would seem, is that it is entirely based on speculation without foundation. Kids are impetuous and impatient, they like pictures!! The world sucks now more than it used to, they are cynical and untrusting!!

    The only assertion for which Plotkin offers any data or support are those regarding the make-up of the venire and the correspondingly obvious information about how old they were when certain historic events happened.

    How you can so rightly reject the marketers as clueless scam artists while not being able to see that jury consultants are usually selling guesswork and stereotypes in a bottle marked Snake Oil is beyond me. As defense attorneys we are trained to question the assertions of self proclaimed experts and to open up the box to see what’s in there. How can a cynical old curmudgeon like you buy this BS?

  4. Brian Gurwitz

    A silver lining to some of your recent cultural critique: maybe the slackoise sense of entitlement, and their disinclination to consider the potential wisdom of anyone but themselves, translates into jurors who are more willing to be holdouts. And since iPad/iPhone surfing isn’t allowed in the jury room, maybe we’ll be seeing hung juries announced within an hour after they retire to deliberate.

  5. SHG

    I’m rather cynical about jury consultants, and though I’ve used them (at the client’s insistence), I think it’s all voodoo.  That said, Plotkin isn’t claiming emipirical basis (at least not that I’m aware of), but his personal observations.  Why do I join him on this one?  I see it too.  This isn’t validation of jjry consultants, but of this observation.  And like Plotkin, I could be wrong.  But I think he’s on to something.

  6. SHG

    That’s a two-way street. They could also be in a rush to get home to answer their emails.  Guilty, not guilty, whatever. I hear the little twitter noise and I must fly.

  7. Lee

    Alright fine, if we’re going to just engage in speculative generalizations, as a member of the me generation, I’ll offer that I think 20s and even 30s are less trustful of cops, particularly on use of force issues, than generations prior based on King, etc…I base this both on anecdotal observation based on conversation with friends as well as talking to jurors after trials in which these issues have come up. More than once, younger jurors have swayed older jurors away from their inclination to blindly accept the officers’ version of events.

  8. SHG

    What’s voir dire other than speculative generalizations?  It’s all voodoo, despite the millions of words murdered in the cause of presenting juries as if anything empirically argued means any individual juror will respond any particular way.  We never really know them, and the best we can hope for is speculative generalizations.

    And as they go, I agree with yours too.

  9. Thomas R. Griffith

    Sir, the Paralegal in family unit recently had the opportunity to answer the following voir dire question(s):

    “Would you be more inclined to believe the police officer’s testimony over the defendant’s?” She replied with, “No, but you should be able to.” The Judge interrupted and asked, “Why should you be able to?” She said, “Because they took an oath & should be.” The Judge said, “What oath was that?” She replied with, “to serve and protect.”

    Then boom she gone, due to either: age, beauty, and/or knowledge. Thanks for the info.

  10. anna durbin

    Useful information.
    Yeah, and I learned to my chagrin that they thought a defense expert, who was hired, had a bias, while the government agent expert was just doing his job. Ugh.
    Now how do you come up with visuals in a crossing state lines to entice or child porn case?

  11. Ralph Mongeluzo

    I’ve had many defense attorneys come to me over the years, struggling to identify any visuals they might use in particular cases. Often a different pair of eyes looking at the case, and the experience of having produced visuals for 1000 other cases, will generate some good ideas. Frequently a good timeline can make a huge difference – not a recitation of events, but a chronology that helps tell the defendant’s story. Perhaps a visual comparison of how a witness’ testimony changed over time, a dynamic map of key actors’ whereabouts at various times, etc. But often the best visual (and maybe the only option) is an analogy, used either by a defense expert on the stand or by counsel in closing. On more than one occasion the defense objective was jury nullification, and we’ve used a visual analogy to get there. I’m not sure I agree with the assertion that Gen X and Y are inherently different, other than being younger (especially emotionally), than their predecessors. But today the society as a whole is substantially more dependent on technology, and in particular, means of communicating information (and visceral emotion) that utilize more than oral or written words.

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