By Richard Gabriel
The Daily Record Newswire
New England Patriots quarterback Tom Brady learns to read defenses, score touchdowns and win games by running hundreds of plays and throwing thousands of passes every year. As with muscular and even intellectual skill, our brains also learn emotions and form our own idiosyncratic pattern of reasoning based on how we grew up and our practiced behaviors.
Dr. Antonio Dimasio, a professor of neuroscience at the University of Southern California, has extensively studied how the brain uses feelings to maintain its equilibrium. Some of these studies indicate that the amygdala, located deep in the medial temporal lobes of the brain, plays a strong role in memory and emotional reactions. Some of the current studies show that emotion plays a much stronger role in our decisions than we previously thought.
How does this model of the brain match how we usually think about a jury’s evaluation of evidence? It doesn’t. We normally think of jurors as blank white boards upon which we write all of our evidence and legal instructions. We acknowledge jurors’ response to emotional images or language only when they see an emotional witness, hear about a terrible crime or hear an attorney’s closing arguments.
In fact, jurors’ personal experiences, emotional reactions, and resulting attitudes and belief structures constantly inform the way they view evidence during a trial.
Here’s a simplified sequence of what really happens when jurors listen to evidence:
Jurors look for a reference in their own experience to see how they feel about what the attorney, witness or judge is saying in a medical malpractice case. (“My favorite sister is a doctor.”)
The statement by the judge, attorney or witness either confirms or is in conflict with how they feel about the issue. (“The doctor allegedly failed to diagnose the aortic tear.”)
If it is consistent with the jurors’ experience, they keep looking for more evidence to support this affirming experience. (“Doctors do the best they can and can’t catch everything.”)
If it is inconsistent, they usually have a negative emotional reaction as they search for a new reference in their experience to help explain this conflict. This often results in a judgment about the witness, attorney or facts. (“My sister really cares about her patients. This doctor did look like he was very compassionate.”)
They continue to look for evidence to support this new judgment or view of the evidence or witnesses. (“This surgery seemed pretty short for something as complicated as the heart. I don’t think he really took the time to look thoroughly when he was performing the surgery.”)
It’s important to pay attention to this sequence — an emotional reaction followed by the need to explain that reaction — because it clarifies how jurors search for and gather evidence to give meaning to their verdicts. The emotional reaction is the decision driver, not the factual evidence.
So, given this different model of jury decisions, what can attorneys do to better present their cases?
First, make sure you ask questions in a supplemental jury questionnaire or in voir dire to fully understand all the personal experiences that the jurors will reference when judging the case. This goes beyond finding out their history to exploring how they feel about and what conclusions they have drawn from their experiences.
For example, in a car accident case, you want to find out what kind of cars jurors have (if they have cars), their ticket and accident history, how they drive and how they see basic traffic rules. In an employment case, you want to find out their experiences with their current and former employers, the types of work environments they were in and how they see management and performance reviews.
Jurors feel small emotional pulls numerous times during a trial as they try to relate to and make sense of the evidence, even in the driest and most technical of matters. These emotional tugs can be as mild as smiling at a joke the judge made or as strong as tearfully reacting to the sobbing of a grief-torn decedent’s mother.
Emotional issues can track evidence or can be completely ancillary and irrelevant to the facts of the case. They can come in the form of a smoking gun document, or the way a defendant raised his eyebrow when a witness is testifying.
While the courts weigh which evidence is probative or prejudicial, it is never an either/or option for jurors — they are constantly using a volume knob to measure how strongly they feel about issues. These volume adjustments are not conscious; they happen deep in the brain. It is critically important to understand the impact that these emotional reactions have on the formation of juror decisions.
Ask yourself, “What are the five most important issues or evidence in my case?” Not twelve. Not thirty-seven. Choose five. Then make sure you have a demonstrative exhibit or demonstration for each of those significant points.
If possible, create a graphic that emphasizes the important language or image in each document and puts it into context. These are road signs for your jurors.
Make sure these road signs are compatible with the experiences and attitudes you have learned about them in voir dire. Jurors want to know why particular evidence is important to your conclusions and ultimately, the verdict questions they have to answer. They want to know why they should travel the road you are directing them down. It is important to repeat these signs constantly in the form of testimony, images and exhibits in the trial.
Brainstorm with your clients and trial team to determine the most effective way to get these emotional messages across. Ask yourself continuously, “How will jurors feel about this point?” Then adjust your presentation strategy to get the reaction you want from jurors.
But remember, strong emotional reactions can backfire. Jurors may weep at the sobbing testimony of a young plaintiff who has lost the use of her legs in an accident and then criticize her and her attorneys in deliberations for trying to manipulate their emotions. So, careful consideration must be given to how to introduce evidence to avoid this backlash.
In order to make sure jurors use our key evidence in their verdict, we have to understand and access the parts of jurors’ brains that help them to retain that evidence and give it meaning.
Richard Gabriel is President of Decision Analysis, a trial consulting company with offices in Los Angeles, Chicago, & San Francisco. He is co-author of Jury Selection: Strategy & Science, published by Thomson-West, and conducts national studies on juror attitudes toward various areas of litigation.
