What Emotions is Your Narrative Evoking?
In most jury selections, attorneys on both sides ask as many questions about jurors’ case-related attitudes as they are allowed to. But how do you get at attitudes that jurors don’t even know are related until the trial starts? Although most attorneys would be sure to exclude any potential jurors who had suffered a fate similar to the plaintiff, they may completely overlook those with more innocuous experiences that can lead them to the belief of “there, but for the grace of God, go I.” Preventing this requires conscientious research into how laypersons view the opposing themes in the case as well as what personal experiences it conjures up in their minds.
One recent example can be seen in a recent New York Times article discussing James Comey’s testimony before the Senate Intelligence Committee. As Mr. Comey described his interactions with President Trump, he referenced feeling “uneasy,” feeling that lines were being blurred, and feeling pressured into situations with his boss that made him uncomfortable. He spoke of staying silent to avoid entering into unsavory agreements and of “freezing” when uncomfortable requests were made. In response, he was asked why he hadn’t been done more to prevent, stop or report the behavior. Unexpectedly, to Nicole Serratore, the NYT writer, as well as many others following the testimony, a familiar and unsettling narrative emerged: that of a woman being sexually harassed in the workplace.
James Comey is not a woman. And the issues at hand had nothing to do with sexual harassment. Which is what makes this an excellent example to underscore the importance of understanding what emotions case-specific themes and testimony will evoke. We have noticed that even though most jurors have not “walked in the shoes” of the plaintiff, they have often had experiences that cause the plaintiff themes to resonate with them. While they may not have suffered an injury, have they ever not been warned of side effects by a doctor? Have they ever left a doctor’s office feeling like they weren’t heard? Have they felt too rushed or intimidated to ask questions?
In most cases, the answer to those questions for at least some jurors will be “Yes.” If specifics of a case parallel a juror’s positive or negative life experiences, then they present you with either an opportunity or a problem. But in order to capitalize on the opportunity or counter the problem, you must first be aware of its existence. To oppose themes that parallel negative juror experiences, you must be prepared to identify and counter those themes, as well as voir dire jurors on those issues. And to capitalize on jurors’ life experiences and prime them to be more receptive to your themes, you must research how to frame the case narrative in a way that feels familiar to them.
Most jurors have endured things in life that will in some way parallel what’s being discussed in the case. And given the effect those experiences have on how jurors frame and respond to the case, we should be highly motivated to learn about those experiences. As always, the more you understand how jurors will react to the specifics of your case, the more knowledgeable you can be during jury selection and the more compelling your case can be at trial.
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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.
