Anne Reed at Deliberations has a wonderful habit of finding ways to burst the bubble of even the most confident lawyer. And I am always thankful she does, as these are the things we need to know, painful though they may be.
Remarkably often in mock trials, here’s what happens. Lawyers tell me they have an analogy or chart or argument they’re sure will conclusively show their case is a slam-dunk win. They present this to the mock jurors, in a voice full of hard-earned pride. Then they listen to the jurors deliberate, and they’re mortified. The jurors hate the analogy, trash the chart, use the argument to support the other side. The lawyer was so sure, and so wrong.
This is a problem, and it’s fairly universal. The job of a trial lawyer is not to find a strategy that she thinks is absolutely brilliant, or a nuanced analysis that would make her law professor proud. The job is to persuade a jury to render a verdict in her client’s favor. That’s it.
We are often left to ponder, in the quiet of our office, what tact to take. On our own, we devise a plan that we believe will serve our clients’ end. We think about it, mull it over, until we reach a point of certainty. We have convinced ourselves that our strategy is a stroke of genius. We hone and refine it. We tweak it. We work it over from the other side, considering every argument against it, and then we settle back in our big leather chair, confident that we have arrived at a winner.
Anne’s point is critical. Convincing ourselves means nothing. We don’t get to decide, just argue. Our clients engage in a somewhat similar process, coming up with what they believe to be the critical points that will set them free. They tend to miss the boat altogether, since they possess no ability to recognize the failings of their strategy and simply dismiss all the nasty little facts that will prove them guilty. Of course, that’s why they retain counsel. We are the professionals. It’s our job to do better than they could. We are supposed to know better.
Like Anne, I’ve had the experience of doing mock trials and focus groups. The outcome is invariably surprising, if not shocking and disconcerting. No matter what point is intended by an argument, an analogy, a chart, they seem to come up with a different understanding that you would never anticipate. Sure, they often “don’t get it,” but they are frequently antagonistic to it to the point that they strain to find a way to rip it to shreds.
The problem that all criminal defense lawyers share is, once we accept the notion that our brilliance in the privacy of our own minds may not work, how do we learn what does work? Where do we turn to find the strategy that may not be our first choice but convinces the jury to give us that winning verdict?
This is the unanswered question. One way to learn is trial and error, bringing point after point to our mock juries or focus groups, until we hit on one that resonates. But this has its flaws as well, for we learn that each mock jury and focus group thinks differently, and a point that works wonders with one mock jury can fall flat with another. We can’t be assured of consistency between small groups of human beings, because each is comprised of different people, with different experiences that create a different dynamic.
So we know from Anne what we are doing wrong. Anne, how do we do it right?
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Being a semi-delusional sort, I’ve come to realize that the rest of the world often doesn’t share my particular delusions.
Isn’t it amazing all the things we can talk ourselves into?
I may have a wonderful habit of finding ways to burst the bubble (thanks for that), but it’s nothing compared to your habit of finding ways I could have written a more useful post than I did. You’re right.
I think the most important tool to prevent self-deception is just to be open to input, not only as we prepare for a single trial but over the course of a career. That might mean a lot of mock trials, yes — even if you can’t do more than one in each case, the mock trials you did in prior cases inform the case you’re preparing for today. It would also include talking to actual jurors whenever we can, running our facts past spouses and taxi drivers, and practicing receiving and using input in the other aspects of our lives, from performance reviews to simple criticism.
I don’t mean to be simplistic here — for a lawyer of your experience and openness, Scott, there are layers beyond this level of looking at the issue, and they mostly depend on the specific case. But after my post, I got a lot of backchannel E-mail telling me stories that supported the stereotype: for many lawyers, simply opening the mind to input of any kind would be a revolutionary change.
But my wife tells me I’m wrong about everything. And then my kids chime to tell me I’m also ugly. They’re very tough.
It seems to me that something very troubling is going on here. In a recent study, the Barna Group found that Americans are more likely to trust their feelings as their guide to the truth than to use facts and logic. Another study found that the percentage of college graduates who can follow something as complex as a legal argument has dropped from about 39% to 31% — and this is those with a degree.
Faced with the task of judging a legal case, it appears that too many jurors suffer from cognitive dissonance, that if their feelings tell them that something is true, no argument, no matter how simple and clear, will sway them from what amounts to a guess.
What legal system can work when this is how judgments are to be made?
Here’s something else to add to the conversation.
If you really want to find the negative aspects of your case, here is a counterintuitive approach that an Arkansas personal injury lawyer uses: he works with churches and selects only church members for his mock jurors — he does not try select a representative sample of the community. He believes he learns more about the problems with his case this way.