Publications: Let the Jury Draw the Conclusion

“Everyone is entitled to his or her own opinion.” How many times have you heard that phrase? One of the messages behind the phrase is this: Once a person’s mind is made up and an opinion is formed, it is very difficult to change that opinion—if it’s the individual’s own opinion.

A common reaction trial lawyers have today when things don’t go their way at verdict time is to lament, “I told them what to do. I could not have been any clearer.” Whether the lawyers who voice that complaint were clear or not, they harbored a dangerous misconception: the misconception that you can tell a jury what to think and make it stick.

People do not like to be told what to do or what to think. If the goal of trials were simply to cause the jury to agree with a lawyer’s proposition, browbeating would be a much more effective jury argument technique. Your goal as a trial lawyer, however, is not only to persuade the jury to accept your argument. It is instead to convince the jury to adopt your argument as their own. If someone is told what to think, that belief will not be held strongly. On the other hand, if they come to their own conclusion, it is very difficult to force them to let go of their position.

Some examples: You represent the plaintiff in a case involving a car collision in an intersection. You have evidence, based on skid marks, that the defendant’s car was traveling 80 miles per hour when it entered the intersection and hit your client, a pedestrian. The speed limit was 50 miles per hour.

Many lawyers would argue that the defendant was speeding—and that is the ultimate conclusion the plaintiff’s lawyer wishes for the jury to make. There is ample evidence to support that conclusion. So, the lawyer tells the jury that the defendant was speeding and that they must come to that conclusion as well.

The second attorney also wants the jury to reach the conclusion that the defendant was speeding. She, however, does not force-feed the jury that conclusion. Instead, she lays out the facts and empowers the jury to make that conclusion on their own. In other words, she makes all the arguments the first lawyer did, except she does not draw the conclusion for the jury that the defendant was speeding. That she will ask the jury to decide, and she will leave it in their hands.

The second lawyer’s address to the jury goes something like this: “Ladies and Gentlemen, the core issue in this case is whether or not the defendant was negligent. We all know that driving in excess of the speed limit or speeding is negligent. In this case, the undisputed testimony from the police officer is that the tire skid marks went over 100 feet. You heard testimony from a well-qualified automotive expert who said that this type of car would have to be traveling at least 80 miles per hour in order to leave skid marks that long. You also heard the defendant admit that the speed limit was 50 miles per hour. There is more than enough evidence from which to conclude that the defendant was speeding in this case. I ask you to make that conclusion in your deliberations.”

The difference between lawyer A and lawyer B is that lawyer B asks the jury to draw their own conclusion. The juror who comes to an independent conclusion will hold on to that deduction much more tenaciously than will a juror who is told what to think and decides to think that way only because that is what the lawyer said to do. There are a number of reasons for this. First, people like to draw their own conclusions and will maintain them more strongly than the conclusion of someone else that they are forced to accept. Second, if you provide the jury with the facts but do not force-feed them the conclusion, they will have to reach that decision themselves. This process empowers the jury to become active in the deliberative process. They will adhere to their independently reached conclusion. Ultimately, they also will listen more closely for the facts, analogies, and argument that support the conclusion and allow them to defend it in the jury room.

So the next time you are tempted, resist the urge to tell the jury what to think. Instead, let them draw their own conclusion, and give them the facts to ensure that their conclusion will be the same as yours. It will help you catch the jurors who sometimes slip away.

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