Trial Magazine

It’s a frequent experience in my house to have any one of my three teenage sons come to me expressing in exasperation that he can’t seem to persuade the fill-in-the-blank person (mom, coach, teacher, friend). Each son’s refrain is almost always the same: “I’ve made my best argument, and yet somehow they won’t agree with me!”

Anytime this episode occurs, I summon my trial lawyer experience and challenge them to think about whether they had really considered their audience when they made their pitch. After all, the difference between a successful persuasion and words that fall on deaf ears often depends on whether you consider precisely who the listeners are. What is their background? What is their potential bias? What is their worldview?

If there’s one tie that binds successful trial lawyers, it’s the skill of knowing one’s audience. And when it comes to trial, deciphering the audience in the jury box likely will be the deciding factor. Many academic articles and texts have been written on the strategy and psychology of voir dire, but it should go without saying that if the people within the audience of the venire are misread, the trial can be lost before opening statements are offered.

One way trial lawyers can better appreciate their audience is to acknowledge and embrace that jurors often bring a degree of bias into the courtroom. While some of these biases can be identified during jury selection and overcome at trial, the truth is that even the best of voir dire examinations may not ferret out implicit bias that lives within jurors. While judges instruct jurors not to let “bias, sympathy, prejudice, or public opinion influence your decision,” such a formulaic admonition will not reduce bias altogether.

Despite a juror’s pledge to stay fair and decide without bias, a nurse likely will bring his or her life experiences to a medical negligence trial, accountants may have a hard time setting aside viewpoints while experts battle over economic loss, and it’s entirely possible that young jurors may have very different beliefs in a nursing home negligence case than older jurors.

This month’s Trial tackles ways to better connect with and persuade jurors in articles on opening statements (p. 18); translating noneconomic damages (p. 26); communicating with conservative jurors (p. 32); how decision-making works (p. 40); identifying bias land mines (p. 47); and the elements of strong storytelling (p. 54).

The jury trial is a fundamental pillar of American democracy. Yet, because of the pandemic, many civil jury trials have been at a standstill, while others are proceeding with social distancing, often in conference centers or auditoriums (read one trial lawyer’s account of an in-person jury trial on p. 16).

As society adjusts to this new normal and collects a better understanding of how to safely return to the courthouse, AAJ is leading the way. I have appointed a Task Force on Civil Jury Trials in the Era of COVID-19, led by AAJ past president Ken Suggs, to provide guidance to our members and state and federal courts on best practices for trying cases and holding in-person jury trials during the pandemic.

Additionally, through the COVID-19 Jury Research Project funded by the Robert L. Habush Endowment, AAJ members Gregory Cusimano and David Wenner are conducting nationwide focus groups and surveys to assess the pandemic’s effect on juror beliefs, perceptions, and decision-making.

The research results and task force findings are being presented through AAJ Education webinars. Visit www.justice.org/pandemicproject for more information and for other AAJ resources, such as emergency court rules.

Because of the work AAJ is doing, trial lawyers will be ready to know their audience and achieve justice.

Tobi L. Millrood is a partner at Pogust Millrood in suburban Philadelphia and can be reached at tobi.millrood@justice.org.