Tuesday, September 7, 2021

Why Jurors Get Distracted By “Irrelevant” Issues

By Thomas M. O’Toole, Ph.D and Kevin Boully, Ph.D.

Does the color of my tie matter? Are there too many attorneys at our table in the courtroom? Does it matter that I am not a local attorney? These are the kinds of questions that come up constantly in our discussion with clients, referring to the innumerable peripheral factors attorneys have blamed for confusing or surprising verdicts. While it is perfectly sensible for attorneys to consider all the factors that might influence a verdict, it is risky to go down the rabbit hole of concerns about all the odd, peripheral factors that might influence the jury’s verdict. Instead, it is better to understand why these “irrelevant” factors become relevant. Attorneys will never be able to predict all the distractions that can turn a case sideways, but they have extraordinary control over whether or not jurors are susceptible to such distractions. 

         Setting aside extraordinary situations, if the attorney is doing his or her job, these issues rarely matter to jurors. To understand why, we turn to one of the oldest and most fundamental theories of persuasion, called the Elaboration Likelihood Model (ELM). ELM, developed by Richard Petty and John Cacioppo, suggests that individuals process messages through one of two cognitive routes: central or peripheral. The central route refers to a process by which the juror actually engages the substance of the message and evaluates its substantive merit and qualities. The peripheral route refers to a process in which the juror relies on peripheral cues to evaluate the message instead of engaging the substance of the message. For example, if I choose to smoke cigarettes as a result of evaluating the advantages and disadvantages of smoking, I have used the central processing route to render that decision. If I choose to smoke cigarettes because my favorite rock star smokes cigarettes and I believe I can be “just as cool” as that rock star if I smoke, I have used the peripheral processing route. 

Researchers believe the route through which a message is processed is largely determined by two key factors: the juror’s motivation to process the message and the juror’s ability to process the message. If jurors have both the motivation and ability to process the message, it will be processed through the central route, meaning they will think carefully through the main arguments and evidence in the case. If jurors lack either the motivation or the ability to process the message, they will process it through the peripheral route, meaning they are more likely to get caught up on supposedly “irrelevant” factors.

Why does this happen? Some suggest that we are all cognitive misers, desperately looking for the most efficient way to make sense of information that is presented to us. Nobel Prize-winning psychologist Daniel Kahneman has a great quote that we have used in past columns. Kahneman says, “when faced with a difficult question, we often answer an easier one instead, usually without noticing the difference.” In his popular book, Thinking Fast and Slow, Kahneman goes on to cite research findings that reinforce the inherent tendency of our brains to take shortcuts in the face of complex information. It is a fundamentally human tendency of decision making.  

Applying this to a litigation setting, peripheral factors such as fashion choice and the geographical residency of the attorney potentially only become important when the presentation of the case fails to motivate or is too complex for jurors to understand. It is in these situations that jurors seek out shortcuts for deciding the case. In other words, the route jurors take to evaluate the case is partially in the hands of the persuading attorneys. For example, in a medical malpractice case where the medicine is complicated, it is much easier for me to look at the doctor and decide whether or not I like him or her than it is for me to try to understand the complicated medicine – unless the medicine is made easy. If I am the defense attorney and do not want jurors to decide the case based on the likability of my client, I need to find a way to make the medicine more understandable to jurors. I need to make it as easy as possible for them by teaching it through ideas and concepts they already know and understand, which substantially increases the likelihood of them embracing my case theory. 

In the language of jury economics, jurors make economic decisions – weighing the costs and benefits of a more effortful analysis against those of the available shortcuts. Attorneys tasked with persuading are more than mere observers. They have the power and ability to anticipate and adapt to jurors likely route to processing information.  A few more examples can help to further illustrate how the jury economics model incorporates the tenets of the Elaboration Likelihood Model.  

The second and third pillars of jury economics are that jurors tend to make egocentric and symbolic decisions. Egocentrism means jurors relate their personal experiences, biases, and feelings about the issues to the case-at-hand and bring those egocentric factors to bear on the task of making decisions. Attorneys know this. Attorneys have the opportunity trigger a more effortful, central route to persuasion by using jurors’ experiences and egocentric biases as a reason to support their preferred decision (i.e. a motivation), and using familiar concepts to reduce complexity and increase jurors’ understanding (i.e. ability). In a case such as the medical malpractice defense example above, this could mean motivating jurors by aligning with a familiar principle to protect, such as the value of rewarding those who take care of other people, and teaching complex medical concepts via familiar ideas (e.g. coronary artery disease is a clogged pipe; medications are drain cleaners, etc.). Attorneys can leverage symbolic representations of these principles, such as the image of a doctor sitting at a patient’s bedside in the middle of the night, or a powerful demonstrative of a clotted artery being unclogged by a miracle medication, to support their central route to persuasion.  

Attorneys may also want to encourage a shortcut route to their preferred decision in the same case by using the same pillars – jurors’ egocentric and symbolic decision making. Presenting the case by triggering a concern for jurors’ own safety or that of their loved ones (a la the Reptile Theory) can serve as a shortcut for jurors to consider “irrelevant” factors that could still motivate an egocentric decision. Again, attorneys can leverage symbolism to support a more superficial decision as well – the lasting image of a frustrated doctor losing his temper in a deposition, or a parent in despair holding the hand of an injured child. These, and far less dramatic symbols of larger and more meaningful ideas, are often available and rarely leveraged in even the most banal civil litigations.  

So, do your fashion choices matter?  Do jurors care how many states you flew over to get here? The short answer, supported by both the Elaboration Likelihood Model and explained through jury economics, is: they can if you let them.  

First Published in King County Bar Bulletin, September 2021

Thursday, May 20, 2021

Webinar Conversation about Litigation Visuals

Fastcase just hosted a webinar during which my co-author, Pat Muscat, and I discuss our Visual Litigation book. Our conversation focused on the THREE Ws:

1. WHY use visuals to persuade in pretrial and trial? 
2. WHEN can you use visuals? When should you use visuals in pretrial and phases of trial? When shouldn’t you use them?
3. WHAT hardware and software can you employ to store, retrieve and display visual?

The webinar was well attended and you can watch a video of the webinar by clicking here.

Sunday, May 9, 2021

Roadways to Justice Book


My new book Roadways to Justice: Reforming the Criminal Justice System was just published and is available now on Amazon. America’s criminal justice system is grappling with multiple issues – police officer-involved deaths and violence; mass incarceration; racial, gender, and sexual orientation bias; the death penalty; public corruption; juvenile justice; disparate sentencing; and the ill effects of Three Strikes laws. These and other issues are examined through the lens of my experience as both a career prosecutor and educator of prosecutors. 

 Roadways to Justice tells remarkable stories of selected cases, trials, and, above all else, quests for justice. The book argues that the criminal justice system can be changed, and it offers inspiration, practical solutions, and roadmaps for how to reform that system. This volume is ideal for anyone interested in understanding how the criminal justice system really works, and it is an indispensable handbook for the new wave of lawyers, lawmakers, and others who want to improve it. 

Sunday, March 14, 2021



What follows is a list of six of my favorite books on trial advocacy. These books are not strangers to this blog that concentrates on the art and science of advocacy because I have blogged about most of them before. Below you will find the six favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—McElhaney’s Trial Notebook by James W. McElhaney

I treasure my autographed copy of McElhaney’s Trial Notebook. For decades McElhaney, the trial lawyer’s sage, wrote a lead articles for the ABA Journal. In his Trial Notebook, he covers everything from trial preparation through final argument. My favorite part of this favorite book is about Tactics in which you can find chapters on traps, how to deal with dirty tricks, ploys, stock phrases to employ as well as ones to avoid (in opening—“Nothing I say is evidence”), picking the right words, getting along with judges and keeping the client happy. 

I’m a firm believer that you can become your best by appropriating skills, strategies, concepts and words from skilled trial lawyers. As Picasso said, ““Good artists copy, great artists steal.” When you set out to craft your opening statement or closing argument, it is always helpful to refer to outstanding opening statements and closing arguments from the past, and In the Interest of Justice provides them.

Seidemann’s book contains excerpts from transcripts that meet Mr. Sideman’s two prerequisites. First, the selected cases are very high profile, including, among others, the trials of: O. J. Simpson; Marv Albert; Sean Puff Daddy Combs; Adolf Eichmann; Martha Stewart; John Scopes; Amadou Diallo; Timothy McVeigh. Second, the advocacy in these cases also satisfies the excellence test, with the lawyers demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.

#3—Redeeming the Dream by David Boies and Theodore Olson

In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, David Boies and Theodore Olson take the reader inside the trial of their case challenging California’s Proposition 8. The book explores everything from preparing the complaint through closing argument and then the appeal to the United States Supreme Court. The book informs the reader about how highly skilled trial lawyers prepare for trial and perform in trial. It also covers the stress, fears and elation that trial lawyers and clients experience in a high-profile case. 

Redeeming the Dream returns again and again to the importance of themes. The development of a case themes and utilizing them in trial is at the core of excellent trial advocacy, For instance, when Ted Olson delivered the opening statement at trial, he led with the case theme: “This case is about marriage and equality. Plaintiffs are being denied the right to marry and equality under the law.”

A winning closing argument is often the product of learning from the best of the best trial lawyers, whether it is a how-to technique for delivery or some content for closing. A valuable resource, particularly for prosecutors, is Vincent Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder. Bugliosi was hands down one of the best trial lawyers in America. 

Why is the book so valuable a guide for shaping a closing argument? First, it is packed with illustrative arguments that can with some modification be adopted by trial lawyers to their cases. When Bugliosi’s book editor asked him to write out the closing he would have given if he had prosecuted Simpson, Bugliosi declined, saying that it would be unrealistic because he normally put three to four hundred hours into prepping his own closings and for that case the closing would have filled a thousand pages of transcript. Instead, he wrote out some of his arguments, which are in bold type. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

A second reason that his closing argument chapter is so valuable is because it is filled with gems – arguments that have been cut and polished to perfection. It is apparent that Bugliosi did what all good trial lawyers do; he took many of his arguments that he had crafted and delivered in his over a hundred trials (including 21 murder convictions) and adjusted them to fit the Simpson case. They are tried and true arguments.   

#6—Trial Advocacy: Planning, Analysis, and Strategy 4th Edition by Marilyn Berger, John Mitchell and Ronald Clark

Naturally, my book Trial Advocacy: Planning, Analysis, and Strategy is included in the list of my six favorite books. The book is divided into 14 chapters with each chapter covering a separate subject—persuasion, jury selection, opening statement, objections and so on. Each chapter presents a theoretical and practical approach to the particular skill, provides illustrations of practice, and offers practical pointers and checklists.

Accompanying the book are Assignments which take the law student or lawyer through the trial process in the context of criminal and civil cases, both of which arise from a tavern shooting after which the victim dies. 

The book has a companion website aspenadvocacybooks.com that holds demonstration movies. Case files, Actors Guide, and a Teacher’s Manual for mock trials and experiential exercises for either professional development CLEs or law school classes are also on the website. 

Friday, February 5, 2021

Court Embraces Remote Jury Selection

 It is doubtful that once the virus isolation ends that jury selection will ever be the same. King County Superior Court - Seattle, Washington - has been conducting jury selection via Zoom. The Court's website provides clear instructions for prospective jurors. Here is what those prospective jurors will find on the Court's website.

Friday, January 29, 2021

Remote Jury Selection


Rayvid's Jury Selection Platform Under Construction

Online jury selection looks like it is here to stay. During the pandemic, jury trials have been conducted remotely via Zoom. In King County, Washington, the Superior Court began with bench trials over Zoom and by the beginning of 2021 had conducted 100 of them. Then, the court started holding virtual civil jury trials. For all of these trials, the jurors remained at home and the other participants were either all or partially remote. Washington federal courts also began remote trials.

Not only is the court system evolving to accommodate conducting remote jury trials but also industry is adapting and evolving. A leader in this endeavor is Rayvid. Rayvid’s website explains:
 “Rayvid was founded at the start of the pandemic by former business and technical leaders from Amazon, Expedia and Google because we believe that the right technology can create a more equitable, efficient and accessible legal system.

“More people in the world now have access to the internet than to justice. This has been exacerbated by social distancing and quarantine but the underlying opportunity for justice to be more democratic will not disappear with a vaccine.”

Working with King County Superior Court, Rayvid has been constructing a jury selection platform. I watched an early mock jury selection using Rayvid. My Seattle University Law School students served as prospective jurors and veteran trial lawyers conducted voir dire with a King County Superior Court Judge presiding. All of the participants in the jury selection exercise were either at home or in an office. Rayvid has built its site specifically for jury selection. To view a video of the platform click here.

Remote jury selection has obvious benefits for both the court and the prospective jurors. Above all else it saves time and money. Jurors no longer need lose time at work to traipse downtown, park, and go to the courthouse where they sit for hours waiting to be sent out to a courtroom where they may never serve because they were excused during the jury selection process. It can involve more citizens in the jury selection process. As Rayvid points out, in Los Angeles county, 90 percent ignore their jury summons.

Thomas O’Toole, my co-author of Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, along with Kevin Boully discussed remote trials in an article entitled “The Impact of Remote Trials on Jury Decision Making” (King Count Bar Bulletin January 2021). They wrote, “Zoom fundamentally changes the nature of the interaction between attorneys and jurors, making it much more difficult to build rapport.” Making a personal connection through a computer screen is just one aspect of remote jury selection that trial lawyers will need to adjust to. As the article points out, lawyers who are accustomed to moving around a courtroom and dramatically gesturing will have to consider how to adapt so as to be effective when they are viewed on a screen. While these and other differences from in-person jury selection are important for effective trial advocacy, the benefits of remote jury selection seem to outweigh them. 

When normalcy returns and trials return to the courtroom, it is hard to believe that the jury selection process will return to what it was. Remote jury selection saves both the court and prospective jurors time and money.

Thursday, November 19, 2020

Cross-Examining Evil


Randy Cox, a friend of mine and a trial lawyer in Missoula, MT, sent me an email telling the tale of a Chicago lawyer named Frank Oliver who defended a client against a federal prosecution that hinged on the testimony of one criminal informant.  The defense was simple – can the jury believe the testimony of a paid government informant who was a self-acknowledged murderer, arsonist and thief. Here is Randy’s email:  

This weekend, just for fun, I was reading some articles from one of Jim McElhaney's books and some old Litigation magazine articles.  There is an article in the Second Edition of The Litigation Manual from the ABA and it’s  about trying a criminal case where the government's proof rested on a man who, it was revealed on direct exam by the government, had committed or participated in four or five murders, roughly a half dozen arsons and bombings, 300 or 400 burglaries and about 200 armed robberies.  On cross, the defense lawyer (Oliver) was asking him about the oath and asked him about having sworn to God to speak truthfully.  
Q.           Now this same God unto whom you have sworn to tell the truth is the very God whose laws and commandments you have violated repeatedly over the course of your entire lifetime. Is that right?
Gov't:    Objection, Your Honor, to getting into his religious aspects here.
Q.           He is the one that swore to God.
The Court:   Overruled. He may answer.
Later, having established violation of "though shalt not kill" and asking about bearing false witness
Q.           So you violated that commandment of God, didn't you?
A.            Yes, sir.
Q.           When you took that oath before this jury, you intended that the jury should believe that the oath had the same seriousness to you that it would to a human being.  Isn't that right?  {WOW!!]
A.            Yes, sir.
Q.           Do you have any idea how many kinds of crimes you have committed?
A.            No, sir.
Q.           Do you know of any crime whatever that a man could commit that is beneath you morally?
A.            I don't know.
Q.           There isn't one is there?
A.            I don't know.
Q.           You cannot think of a crime that would be below you, can you?
A.            I imagine there is, but I don't know.
One of the questions, having obtained agreement that he should be believed and trusted with this new identity is because he has had a "spiritual awakening when you came to perceive the difference between good and evil."
Q.           So that whatever happened the day before, you were crawling evil, and then with this awakening, became a paragon of decency. Is that it?
A.            Yes.
Q.           That must have struck you as a remarkable day in your life, didn't it?
A.            Yes.
Q.           Did a light flood your soul?
A.            No.
Q.           You laugh?
A.            Yes.
Q.           You laugh because what I say is amusing, isn't it?
A.            Yes.
Q.           Because you cannot perceive of such a thing as a light of decency, isn't that right?
A.            I can see decency, but I don't know about no light striking me or anything like that.
Q.           You can see decency?
A.            That's correct.
Q.           Well, let's see.  You said that there might be some crimes that you would not commit, right?
A.            That's correct.
Q.           Rape is one of those crimes that you would not commit, is it?
A.            I don't ever remember doing it.
Q.           You don't remember whether you committed a rape or not?
A.            That's correct.
Q.           Is it something that just kind of could have happened and slipped out of your mind?
A.            I never raped nobody, if that makes you happy.
Q.           What causes you to suppose that anything you could possibly say would make me happy?
A.            I have no idea.
He then goes on to establish some particularly vile circumstances of rape of a woman who was a little "off," a little "crazy" and her husband was his friend and "Before your friend's body was lowered into his grave, you carnally knew and violated his widow." 
How much fun would that be??
In final argument he talked about the government’s witness as “evil” and said, among other things, “You cannot use evil to achieve anything good.  No, not even if you are a federal prosecutor.”