Are you Focusing Jurors – or Distracting Them?
“It’s not what you say, it’s what they hear” is a useful guide for reminding ourselves that we may not be as clear in our communication as we think we are. We’ve seen attorneys deliver arguments about X, and then found, in post-trial interviews, that jurors reframed it as Y. We’ve also seen attorneys use examples or analogies to make their point that then became the entire focus of the deliberations. Or worse, were turned around by jurors to argue the complete opposite point. Is there a way to find out if this might happen to you? And is it preventable? Yes and yes.
Let’s use the example of a misunderstood argument from public discourse—a recent column in the New York Times by David Brooks. He used the story of Noah to discuss the recent hurricanes, ending with the suggestion that, as powerful as the tradition of individualism is in the US, “strong individuals” must be “willing to yoke themselves to collective institutions.” The NYT reported that this article got more comments than any other article printed on that day (534 comments). What did those comments reveal about what readers understood Brooks to be saying, and how well did they understand it? We sampled the 200 top Readers’ Pick comments, and observed the following:
-The Bible reference opened an argument rather than ending it. As we pointed out in our post on analogies, many analogies serve to distract readers from the main topic. Once some readers read “Bible,” the rest of Brooks’ column was discounted.
-The majority of readers reframed this column as about climate change, a word Brooks never used in his column. That is, readers introduced a completely different topic in their comments and engaged each other on that—a side discussion that didn’t involve Mr. Brooks at all.
-Brooks made an oblique reference to the current polarized political situation (“Many swerve between cheap, antiestablishment cynicism….and a lemming-like partisan obedience”) which readers honed in on and explicitly discussed.
-Only a handful of commenters accepted Brooks’ general point and engaged with it. And only one person defended him.
Clearly, Mr. Brooks wanted to convey a message and he wrote an article that was widely read. Unfortunately for him, most readers didn’t hear what he said.
Are you at risk of this happening? Yes, it can happen any time you use analogies. In today’s climate, the Bible and the current political situation are charged topics that offer too many rabbit trials for your listeners. It can also happen if you spend too much time setting up your point. The more time you spend explaining examples and analogies, the less time you spend making your point—and the more likely the listener is to miss your point altogether.
Can you prevent it? Yes, by choosing your words wisely and testing them in front of mock jurors. Then, listen carefully to the feedback and adjust if you notice jurors generating reframed or off-topic arguments. Because sometimes in trial, well-intentioned, but untested arguments and examples can lead jurors down roads you would never have expected. And the outcome of that rarely works in your favor.
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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.