Trial Magazine

The influence of the 2016 presidential campaign and our current president is seen daily in focus groups and courtrooms.¹ Today, conservative jurors are more empowered than ever to fight for what they think is right. There are varying definitions of “conservative,” but in this article, the term refers more to decision-making paradigms than to political beliefs, namely of jurors who are conservative in the remedies they are willing to provide an injured party.

No matter how adverse we fear some conservative jurors may be, focus groups and jury trials confirm that with proper framing, language, and visuals, conservatives can connect with the plaintiff’s story. To persuade these jurors to rule in your client’s favor, focus on four frames consistent with conservative jurors’ decision-making patterns: authority, direct cause and effect, competition, and credibility.

Authority

Our families are the first to govern us, and so our family’s decision-making paradigms imprint in our brains.² Differences between conservative and progressive viewpoints can be understood through two configurations of family life on opposite ends of a spectrum. Conservatives are commonly raised in an “authoritarian” family, and progressives are commonly raised in a “nurturing” family.³

In the authoritarian family, the patriarch knows best. This is a hierarchical, all-or-nothing position. Father is the ultimate authority, and his edict is accepted as right by his spouse and children. By deferring to the authority, they become strong internally and successful in the external world. If they do not prosper, that means they are not disciplined enough, which in turn means they cannot be moral and so deserve their plight. Outward success becomes a reflection of inward morality.⁴

Conservative jurors often see plaintiffs as asking for handouts and as undeserving. They see defendants as deserving of their wealth and position. They view responsibility as personal responsibility, not social or legal responsibility.

This authoritarian model contrasts a nurturing family model in which parents provide their children a safe environment.⁵ Rather than hierarchical, this is a lateral approach to caring for children so they develop into strong and healthy adults. The lateral family structure focuses on being part of a whole and using resources from all parts. Helping others achieve their fullest potential is a mutual responsibility.

Many plaintiff lawyers naturally gravitate to a nurturing perspective. Yet presenting an opening statement from this perspective to jurors whose lives revolve around authority does not work. Generally, plaintiffs will not lose progressive jurors with an authority-based story, but they will lose conservative jurors with a nurturing-based story.

While both groups are capable of thinking outside their preferred frames, progressive jurors are more motivated to accept an authority-based story than conservative jurors are to accept a nurturing-based story. Even if an authority-based story may be at odds with progressive principles, progressives tend to find a way to harmonize the two to reach agreement. In contrast, when presented with a nurturing-based story, loyalty to the hierarchical model is challenged, so conservatives become more conservative.⁶

Consider the first paragraph of an opening statement from a nurturing perspective:

This case is about trust—one of the most important types of trust that exists in our society: the trust that every patient places in his or her doctor. This 29-year-old patient placed an enormous amount of trust in Dr. Jones. The patient not only placed his trust in Dr. Jones by permitting him to perform an invasive surgery but also trusted Dr. Jones when the doctor informed him that there was a high risk that he would suddenly die if Dr. Jones did not perform this surgery.

In focus groups, conservative jurors deemed the paragraph “emotional,” since the topic of trust is not fact-based, the position comes with no visual support, and there is no source for the position taken. There is an absence of authority, except for the defendant doctor as the authority over the patient. Without an overriding authority for the doctor’s actions, his authority over the patient appears to be the ultimate authority.

Here is a revision of that paragraph from an authoritarian approach:

There is something the medical profession imposes on doctors called the standard of care to ensure that doctors treat their patients the right way. The standard of care is the authority that governs doctors’ actions. This standard does not permit doctors to simply do what they want with their patients. Rather, the standard of care identifies the treatments a doctor can provide. In this case, the standard of care required that specific requirements be met before the doctor performed surgery on this patient’s heart. Your job as jurors is to enforce the standard of care.

This paragraph sets up fact-based hierarchy, right-versus-wrong frameworks, and authority. Illustrations can support each of these components to make lasting impressions—for example, an exhibit with headshots of the experts and treating doctors who will testify for the plaintiff, including captions with names, specialties, and where the doctors are from. For conservative jurors, a declarative statement by plaintiff counsel and an expert about the rules or standard of care does not have the same effect as establishing the authority and then the “right way” to act in that scenario as compared to the “wrong way.”

Authority is established by presenting a hierarchy with the authority on top (the medical profession that establishes the standard of care), the authority itself (the standard of care), the authority followers (the doctors), and last, the recipients (the patients). Conservative jurors also want to understand the purpose of the authority, how the authority was established, how it should be followed, and the consequences of actions contrary to the authority.

Increasingly, conservatives’ reactions to rules tend to be either that rules are meant to be broken or they want to see the documentation and authority for themselves. (Rules from this perspective are synonymous with “the establishment.”) To minimize land mines, educate jurors on the defendant’s “job” or “standard operating procedure,” rather than using the word “rules.” The “job” frame unites jurors. When rules are a central feature of your story, illustrations can reinforce the authority story element, in addition to manuals and guidelines.

Conservatives value capitalism, see the establishment as corrupt, and view life as about survival of the fittest. Their world is divided into right and wrong. This creates expectations that companies/doctors stand behind their products and services, customers/patients get what they pay for, and companies/doctors who cheat their customers/patients should be punished. Punishment in this sense is synonymous with righting a wrong. So if you start a story with rules but without an authority or enforcement mechanism, there is a mismatch between the presentation and conservative jurors’ model of the world.

Frames used to establish authority in conservative political rhetoric can apply to plaintiffs’ cases—such as emphasizing “law and order.” For example, the driving and traffic rules impose law and order on public highways. The standard of care establishes law and order in the medical profession. In products liability cases, the product label is the law, and it orders proper use of the product.

For example, jurors expect the insured not to let the defendant insurance company cheat him or her. When the insured pays dues and works hard, and the insurer refuses to take responsibility for its wrongdoing, conservative jurors want to settle the score.

Note that conservatives seek to defend individual rights and not to protect safety unless protecting safety is in a hierarchical list of priorities—for example, when the defendant doctor admits there are priorities more important than protecting patient safety, or when protecting patient safety can be included in a definition of the standard of care according to a recognized authority. Without such contexts, conservatives tend to see protecting safety—a common plaintiff theme—like trust: as emotional and a ploy for sympathy.

Too often in plaintiff presentations, the defendant is indiscernible. Conservative jurors need to see a “bad guy” defendant who needs disciplining, even with no punitive claim. The bad guy defendant needs to be front and center in the plaintiff’s presentation so that the defendant can be front and center in conservative jurors’ minds.

For example, when an opening focuses on how a plaintiff slipped and fell at a concert arena, the plaintiff is the central character in the story rather than the defendant, and the plaintiff falling is the central image.⁷ Instead, introduce the defendant first so the jurors can clearly identify the bad guy. Start with an arena employee filling out an incident report at the time the plaintiff is injured—one of at least a hundred other incident reports that show the same issue with the steps causing other guests to fall. In this approach, the defendant is the subject of each sentence, and the central image is a pile of incident reports demonstrating the managers’ choices to ignore the danger despite knowledge of the problem.

Cause and Effect

It is human nature to think of the focus of our attention as the cause. Research shows that observers give causal connections to individuals who speak louder, sit closer, or wear attention-grabbing clothing.⁸ Conservatives typically think that if cause and effect doesn’t occur in two steps, there is no cause and effect. The flip side of this linear causation is circular or systemic causation.

Plaintiff attorneys and progressives typically are comfortable with circular causation. Circular causation explains how the wrong amount of a drug can cause a patient’s death two weeks later. This reasoning has to be learned and includes chains of causes, interactions, feedback loops, and probabilities. It makes sense to those who see consequences and complexities but not to those who haven’t learned to look beyond direct actions.⁹ For conservative jurors, the drug and the death are separated by time, inviting speculation unless explained with understandable two-step sequences linking the drug with the death.

Here is an opening statement without linear cause and effect:

Both the paramedic and the doctor have a job to do. The evidence will establish that their job is to determine how to safely treat their patient. The evidence will also establish that job has parts. The first part of the job is to figure out whether to give their patient medication. If they decide they must give their patient medication, the second thing to be decided is which medication is safest to treat their patient. Third, when they decide which medication to give the patient, they must follow the rules for giving the medication by making sure the patient receives necessary oxygen to live.

Many of these sentences are diluted with qualifications and unnecessary repetition. There is little visual imagery and not much to make the above memorable to jurors. The cause-and-effect formula is absent. Next is a revision that demonstrates the cause and effect that conservatives prefer:

Both paramedics and doctors have a job to do. Their job is to keep their patients from hurting themselves. When they consider medicating patients who lose muscle control and become agitated, that job has two steps. First, paramedics and doctors decide whether medication is necessary to calm the patient. Second, they choose one of five medications that calms their patient and keeps his or her breathing normal.

Note the imagery and the locus of control, which is with the defendants. Objective nouns and action verbs conjure specific images in the mind’s eye, leaving less room for interpretation.

Competition

In conservatives’ world, winners deserve to win. The focus must be on showing—not telling—jurors that plaintiffs are on the winning side. Show plaintiffs as succeeding, instead of portraying them as victims. Consider this description of the plaintiff that would not resonate with conservative jurors:

This crash changed Cindy’s life forever. Cindy suffers from daily pain, swelling, and difficulty with her right foot. She has pain in the arch of her foot and pain from the surgical site on her big toe. Cindy cannot walk normally, nor can she walk without pain.

The following rewrite, however, emphasizes Cindy beating the odds:

Even with pain and swelling in her foot, Cindy has kept her full-time job. She has learned to adapt to the changes in her walk by doing more tasks from a sitting position. To lessen the throbbing from the surgical site on her big toe, her boss has allowed her to delegate heavy lifting to others.

Jurors like to help people who help themselves. Instead of stringing together adjectives to describe the plaintiff, elicit anecdotal stories from witnesses. Replace “suffering from” with “coping with.” Instead of “in pain,” use sensory specific language such as “throbbing.”

Jurors need to experience the plaintiff’s story in its purest form first so they have a solid basis from which to discard the defenses. Unintentionally, plaintiff attorneys often contaminate their visual and verbal messages in trial by addressing the defenses throughout the opening statement and direct examination. Defenses need to be reframed but only in concise reframes toward the end of opening, direct, and closing.

Since plaintiffs typically lose when the fight becomes a he said/she said situation, frames such as authority, two-step cause and effects, and plaintiffs overcoming obstacles can help avoid this scenario.

Measuring Credibility

Conservatives have learned that spontaneous bluntness is synonymous with transparency and credibility. Let go of your official courtroom persona and go off-script. Respond to the moment no matter what is next on your outline. Don’t be afraid to show emotion when it is genuine and justified.

Unite yourself with the jurors. Phrases such as “Mr. Witness, please tell the jury” and “you will learn” set up a condescending us versus you dynamic. Instead, unite yourself with the jurors by saying, “Mr. Witness, please tell us” or “we will learn.”

Ask witnesses questions that are on jurors’ minds in the language that jurors use. This is more than avoiding terms of art. Lawyers need to know the questions that jurors want asked and the language they would use. Focus groups can help you collect juror questions and language to use at trial. For example, proving a crash caused the plaintiff’s injuries is often not enough. Conservative jurors expect testimony to rule out alternative causes too.

Allow yourself to surprise and be surprised. Responding genuinely in voir dire, in handling objections, and in response to witnesses will engage jurors. For example, in jury selection, a juror talked about a recent concert of a band the plaintiff’s attorney admired, and the plaintiff’s attorney didn’t hold back: He exclaimed, “Really! Wow! Going to that concert would be like a dream come true!” Jurors know when you are comfortable enough in your own skin to react authentically.

Define the jurors’ job as enforcers of law and order. When the law as the authority is part of your frame, and the jurors are enforcers of the law, make the plaintiffs-versus-defendants frame obvious in opening, closing, and questioning of witnesses. This puts jurors on your side.

In the deliberation room, jurors forget who said what in the courtroom. They will never forget, though, how you made them feel and the images you created, consciously or unconsciously. Framing your case with conservative viewpoints in the jurors’ language can make your side the “right” side.

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Amy Pardieck is a trial consultant and the founder of Perceptual Litigation in Bloomington, Ind. She can be reached at amypardieck@sbcglobal.net. Copyright © 2018 Amy Pardieck.

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Notes

1. This article is based on 54 focus groups, 25 trials, and 18 sets of post-verdict interviews over the last 18 months when distinct shifts in focus jurors and jurors are evident compared to past years. 
2. George Lakoff, Understanding Trump (July 23, 2016), https://tinyurl.com/y83fyxcc/; George Lakoff & Elisabeth Wehling, The Little Blue Book: The Essential Guide to Thinking and Talking Democratic 17 (2012); Clotaire Rapaille, The Culture Code: An Ingenious Way to Understand Why People Around the World Live and Buy as They Do 6 (2006).
3. George Lakoff, Don’t Think of an Elephant! Know Your Values and Frame the Debate—The Essential Guide for Progressives 6 (2004); George Lakoff, Moral Politics: What Conservatives Know That Liberals Don’t 65 (1996).
4. James C. Dobson, The New Dare to Discipline (2018); Laurence Steinberg, Julie Elmen & Nina Mounts, Authoritative Parenting, Psychosocial Maturity, and Academic Success Among Adolescents, 60 Child Development 1424 (1989).
5. Beverly Hewett et al., The Nurturing Perspective: Facilitating Self-Efficacy, 31 J. Adult Educ. 17 (2002).
6. Robert M. Sapolsky, Behave: The Biology of Humans at Our Best and Worst 448 (2017).
7. Eric Oliver, Facts Still Can’t Speak for Themselves: Reveal the Stories That Give Facts Their Meaning 220 (2d ed. 2015).
8. Robert Cialdini, Pre-suasion: A Revolutionary Way to Influence and Persuade 54–56 (2016); Social Psychology Network, Taylor and Fiske (1978) Study, https://tinyurl.com/yckmgrtl.
9. George Lakoff, Don’t Think of an Elephant!: Know Your Values and Frame the Debate—The Essential Guide for Progressives (2004).