There’s a stereotype of what happens in jury deliberations. It involves jurors squaring off against each other, a hail of fierce argument and counter-argument, with the jurors turning themselves into proxy attorneys for their side as other wavering members are converted or confirmed: Think “Twelve Angry Men” with greater demographic diversity. That does sometimes happen, but the more common reality is different. It is also different from the opposing stereotype of deliberations not really mattering at all since “eighty percent of jurors have made up their minds after opening statement,” a common piece of urban folklore that is often repeated without reference, but which is also demonstrably false. The reality is that jurors are persuadable and make up their minds at many stages of the process, especially during deliberations. But the reality is also that it isn’t just an adversarial process for the jurors. The part of the process where the jurors inform each other is as important, or perhaps even more important than the part of the process where they argue with each other.
While there is a notorious scarcity of research on real juries in the U.S. (because deliberations are private and protected), the importance of the informational stage of deliberations is illuminated in a recent study on another kind of jury. A team of researchers in Scotland (Thompson et al., 2021) looked at citizen juries, which are “mini-publics” brought together for deliberation in order to make policy recommendations. In this case, the study involved three juries addressing the issue of wind farm power generation, where local and diverse groups of 14 to 18 participants completed two full days of deliberation. The three juries were each located in areas with differing local experience: no wind farms, planned future wind farms, and existing wind farms. Reviewing the deliberations to see how and when jurors changed their minds, the study concluded, “we found that the information phase had the greatest influence on jury opinions in those localities without a wind farm,” and that more generally the research confirms “the importance of the information phase in changing jurors’ opinions, rather than the theoretically expected deliberative phase.” In other words, the mutual learning of the jury is even more important than the arguing, particularly when jurors don’t have personal experience with the issues. In this post, I’ll share a few implications of this.
If you’ve watched jury deliberations in a mock trial, you have likely seen what the researchers are calling the “informational phase.” Jurors will often kick off the discussion by asking each other questions, or by testing and correcting their own understanding of the case. This, of course, is doing what a jury is supposed to do. One of the reasons for decision by a group rather than an individual is that no one individual is likely to have a perfect understanding, but the group’s knowledge will often correct for individual gaps. As the researchers describe it, “participants pool the relevant information they have on the issue at hand, leading to information gains for most participants.” Advocates will tend to focus on the jury’s advocacy, which is important as well. But I think there are three ways that trial lawyers should keep this informational phase in mind as well.
Test the Information Phase
What is it that your jury will want and expect to know? What will they need to understand in order to get to your favored decision? Before throwing yourself into the argumentative and persuasive challenges you face, it helps to take an inventory of the educational needs and the comprehension challenges you’ll face first. When we’re running a mock trial, we’ll often tell the participants, “We won’t be able to answer all your questions throughout the project, but we want to know what questions you have, so write them down.” In viewing deliberation and the final interview with jurors you can also benefit from making a list of everything they wanted to know.
Prime the Informational Phase
In situations where you may have a complex case, you stand to do better if the jury holds off on quick judgment and instead first engages in a more thorough and analytical review of the facts. In these situations, you might want to encourage jurors to focus on that informational phase, and to put themselves in a frame of mind that says that comprehension comes first:
As I said at the beginning, this isn’t a simple case, but it is a manageable case. It might be the case that no one among you has a perfect understanding of everything that’s covered every day of this trial. But that is where the magic of the group comes in: What you understood, you can help someone else understand. And as for what you missed, there’s a good chance someone else understood it. So it might be a good idea — before you jump in and start making arguments for or against my client, or for or against their client — to just take some moments and reconstruct your understanding of the facts and issues of this case: Start by establishing what you know.
Respect the Information Phase
For some trial lawyers, I think there can be a tendency to subtly see jurors as adversaries, or at least as potential adversaries: a barrier you need to get past. More often, they’re actually reasonable and decent people who just want to make a good decision but are a little stressed out about it. For the advocate, it helps to see your role as helping and guiding them toward the best decision. That best decision is for your side, of course, but it helps to see yourself as facilitating their decision, and not preaching to them about yours. As a facilitator, you should give as much attention to the informational strategies as the persuasive ones. If you are confident in your case, you should get to the point of rationally believing, “If the jury just understands this fully, then they are going to see my side as the better option.” Once you’re at that point, the mission is informational, and the goal is to be the better teacher.
Thompson, A. G., Escobar, O., Roberts, J. J., Elstub, S., & Pamphilis, N. M. (2021). The importance of context and the effect of information and deliberation on opinion change regarding environmental issues in citizens’ juries. Sustainability, 13(17), 9852.
Image credit: Shutterstock, used under license
