Overall, Horowitz and FosterLee (2001) reported that the introduction of trial transcripts during jury deliberation indicated that juror comprehension increased, snap and faulty judgments decreased, and juror investment increased. The researchers also reported that when the jurors received pre-instructions juror comprehension was enhanced and note-taking skills improved.
When reviewing the results from this research, the findings seemed to produce some counter intuitive results. The assumption that note-taking and the availability to use trial transcripts in deliberation caused systemic thinking and influenced jury verdicts lacked statistical significance. In other words, this study, unlike others in the literature review could not find a quantitative correlation between those variables and jury reasoning or verdicts. There was, though, statistical significance indicating that note-taking decreased attempts from the defense and plaintiff to lure the jury with emotional or “frivolous” tactics. There was statistical significance when juries utilized trial transcripts during deliberations. When a jury did not take notes and the trial transcripts were made available to the jury, the researchers found statistical validity indicating that trial transcripts influenced jury verdicts and reasoning styles.
Horowitz and FosterLee (2001) reported correlations between the utilization and non-utilization of notes and trial transcripts on jury awards. The presence or absence of either or both variables had influence on the size of the jury awards. For example when a jury was only able to use trial transcripts the compensatory damages awarded were less than when note-taking and trial transcripts were accessed by the jury. When a jury could not access note-taking and trial transcripts the jury verdicts were the highest.
Generally, it appears that when a jury is making their decisions solely upon systemic reasoning the awards were lower. With this finding in mind, it can be assumed that when a jury makes their decisions on a combination of both systemic and heuristic reasoning models the jury awards can be the highest even when notes and/or trial transcripts are present.
For Your Trial:
So what does this mean for your trial?
The findings from Horowitz and FosterLee (2001) create some interesting conundrums. On the one hand we want our jurors well informed and motivated. The combination of being well informed and motivated actually increases the likelihood of being persuaded by a persuasive argument. The ELM or Elaboration Likelihood Model of persuasion states that increased comprehension leads to increased motivation to understand information clearly. The model further posits that this motivation to understand increases receptivity to persuasive arguments because the content in the argument provides the necessary elements to satisfy the motivation for understanding. This though lends a jury to systemic reasoning and when trial notes and transcripts are available the jury reasons a lower award. A jury that operates on strictly a heuristic model is dispassionate, does not pay close attention to the facts and is easily persuaded by counterfactual arguments.
Earlier, I mentioned the idea of a heuristic-systemic model of reasoning; this combination of reasoning models translates into an interesting trial tactic. Let’s break this down. As the research indicated, when a jury deliberates with systemic reasoning they are motivated to review all of the evidence, use the trial transcripts to negate counterfactual thinking, and are more susceptible to the persuasive argument. These are important attributes to keep, especially negating counterfactual thinking and persuasion susceptibility. We also know that when a deliberation is solely systemic, jury award decrease. There must be a way to include a heuristic response that narrows the jury’s focus while encouraging a systemic model of reasoning to support and validate the initial heuristic reasoning. Let’s look at the following example; when a plaintiff attorney who, for the sake of this description, encourages in closing arguments that the jury must have maximum access to information and encourages systemic reasoning a foundational heuristic model of reasoning can be triggered. In this instance it is the old heuristic mental model of ‘if you have nothing to hide then you are honest’. This mental model has been codified in us since childhood. It is a cultural archetype meaning honesty, trust worthiness, a deep conviction that the truth will emerge from all of facts, and the jury is capable of seeing that truth. This mental model helps juror’s perceive the plaintiff attorney as honest and holding deep convictions that the evidence is true and accurate. This assists the jury’s view that the evidence must be reliable. The risk, though, may be a lower jury award.
My example of the heuristic notion of hiding and honesty is referred to as a peripheral cue. When a juror makes a decision based from a peripheral cue it does not indicate that all future reasoning will come from a heuristic model. Often the peripheral cue gives the juror a foundation based upon an existing mental model to feel free enough and empowered enough to evaluate the evidence from a systemic view. The peripheral cue provides a structure to channel jury motivation during deliberation towards remembering and using the facts you have presented to codify the original heuristic assumption. This mixture has the potential to reduce the chances that the jury award is reduced. An entire journal article could be devoted to this tactic alone.
The peripheral cue technique has been trial tested. Lītigāre was hired to consult on a complex business litigation in Chicago. We employed this tactic early on in voir dire, slid it in opening, made some references to it during trial and emphasized it in closing. When we interviewed the jurors after our sizeable verdict the jurors mentioned that they just knew the defendant was responsible and spent most of the deliberation reviewing evidence to support that “knowing”.
The final outcome from this research indicates that note-taking and trial transcripts will certainly increase juror comprehension, investment in the trial, and increase persuasion yet it also appears that this combination resulted in lower jury awards. There are, though, techniques like the peripheral cue and the questions below that are available to the trial attorney to increase juror comprehension, emotional attachment, motivation, and susceptibility to your argument without the risk of reducing jury awards.
A few concepts to remember:
· How do I get the peripheral cue to the potential jurors in voir dire?
· What mission am I assigning to them?
· How do I reinforce the peripheral cue and mission in my opening statements?
· Does my peripheral cue empower and motivate the jury?
· Where am I placing my peripheral cue reminders and how many?
Flesch Reading Scale:
The Flesch Reading Ease scale ranges from 0 to 100. The higher the number on the scale the easier the text is to comprehend. In general the numbers break down in the following pattern:
· 0 to 30 are scores that indicate text that will be easily understood by college graduates;
· 60 to 70 are scores that indicate the text is easily understood by junior high school students and early high school students;
· 90 to 100 are scores that indicate the text is easily understood by 5th graders.