Do NOT take that silence as agreement.
There are a few phrases that we hear frequently in jury selections—regardless of venue and across attorneys—but one phrase that we hear more than most is, “I will take your silence as agreement.” We say: Don’t. In most cases, silent jurors aren’t expressing agreement—or anything else. Their silence is simply silence and provides the attorney with no reliable information. Here, we examine how jurors view such “agreements” and offer a more dependable approach for gaining commitments from jurors.
We hear this phrase most often when an attorney is asking questions to the entire panel and the panel is not particularly talkative. The attorney asks a broad question: “Does everyone agree [to base your verdict on the evidence and not sympathy, e.g.]?” No one on the panel responds and there’s an uncomfortable silence. The attorney then says, “I will take your silence as agreement,” and continues on. While we imagine that this is done for a variety of reasons—as a transition statement, as a method of dealing with an awkward situation, or maybe due to a genuine belief that jurors are agreeing by not responding—we have learned, from research and bitter experience, that those jurors do not believe they have entered into any agreements under those circumstances and definitely do not feel bound by that “agreement.” In fact, it often causes internal pushback from jurors (“You may take it however you want, but I did not agree to that.”).
What can you do to avoid that trap? Given that you want a real connection with and genuine agreement from jurors, we recommend that you revise your voir dire strategy and ask focused questions of individual jurors. Let’s take the example of “zero damages.” The question, “Can everyone award zero damages?” is often followed by complete silence. Rather than starting with that general question and assuming that you have garnered an implicit agreement on the issue, we recommend trying this approach instead:
-First, elicit an explicit agreement from several individual jurors, with a more detailed question: “Ms. Jones, if the evidence warranted zero damages, is that something you believe you could award? Even though she’s a nice lady, could you send the plaintiff home with nothing?”, followed by, “What about you, Mr. Pearson, could you award her no money?”.
-Once you have an actual agreement from some jurors, then pose a more general, but also focused question to the remaining jurors: “Is there anyone who feels uncomfortable with that? Does the thought of that make anyone think, ‘I’m not sure I could do that?’” These responses, even if they are silent responses, are responses that jurors do perceive as an agreement.
Jurors are silent for many reasons—awkwardness, unfamiliarity with the court system, shyness—so any assumptions about what that silence means can alienate jurors, give you false confidence, and prevent you from digging deeper and learning valuable information about what jurors are actually thinking. Designing questions that prevent silence will always serve you better than accepting silence as a tacit agreement.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.