August 22, 2023

Podcast - The "Five P's" That Will Help Shape Jurors' Emotions

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small shares the five "P's" that will help shape jurors' emotions in the courtroom. Mr. Small delves into the important role emotions play in the decision-making process in every case, and how trial lawyers can walk the tightrope to achieve a successful end result.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

In every case, jurors are instructed to put aside their sympathies and emotions, and decide the case on the evidence and the law, according to their good judgment and common sense. It sounds great, but as we all know, jurors are human beings, not robots. And they are not purely rational decision makers.

The Powerful Role of Emotions

Emotions can play a role — sometimes a strong role — in jurors' decisions. Sometimes, those emotions are so powerful that they can substantially distort the decision-making process. Very few jurors, for example, faced with a child in a wheelchair in a products liability case, can decide the issues purely based on cold rationality. Even in a fair trial, such a thing may be difficult to overcome.

Most trials don’t produce an overwhelming emotional response. Nonetheless, emotions play a role in almost all trials, even if the role is relatively small. The challenge for trial counsel is how to control, counter and direct that emotional response to persuade effectively, within the confines of the facts and the law.

Trial lawyers are usually aware that this is an issue, but they often either overreact or underreact to it. They may overreact by assuming that nothing really matters but emotion, and they don't properly develop the factual foundation. Or they may underreact by assuming that they are powerless to understand or shape the jury's emotions, and don't give the issue the attention it deserves.

Obviously, you can't know what is going on inside jurors' minds. But people usually react and respond to things in reasonably predictable ways. While you can't control everything that happens in a trial, you do have considerable ability to affect the way that the facts are presented.

Try to use the facts to shape the jurors' emotions. A story that may move them deeply, if presented in a certain way, could leave them cold if presented another way.

The Five "P's"

I use what I call the "Five P's" to frame the challenges of this issue: place, power, position, phoniness and pandering.

Place: Although in many respects we are increasingly homogenized as a nation, some strong regional differences remain. The level of emotional appeal that is acceptable in the South and Southwest may be quite different from what is appropriate in buttoned-down New England.

Second, Power: The power of emotions requires a solid foundation in the facts. If the facts don't lend themselves to a powerful response, don't risk offending the jury by overstating the issue.

Third, Position: The level of emotion in the case may depend on the position of the parties. For example, can the plaintiff honestly be portrayed as a sympathetic victim? Is there a danger that the defendant could be viewed as a bully? Are there stereotypes, based on the position of the parties, that you will need to overcome?

Fourth, Phoniness: Jurors have what I think of as good radar for two things: jerks and phonies, and they don't like either one when they see them. If the jury doesn't view the response you're trying to evoke as real, the result may be devastatingly negative. Are you or your witness truly emotional about something, or just wishing you were? Will the personalities of the witnesses and the evidence support their emotions as genuine, or do you need to work harder to keep them honest?

Number five, Pandering: Of course, you hope that genuine emotion will help persuade the jury that your cause is just. But be careful not to overdo it. Treat emotion carefully, don't flaunt it. You do not want the jurors thinking that you are deliberately pandering to their emotions. A light touch here can be more persuasive than a heavy hand.

Jurors are neither totally rational nor totally irrational. They're human beings, almost always decent ones, trying to do the right thing. They're affected by their emotions, but they're also trying to sort through the facts and render the right decision.

It's the job of the trial lawyer to walk that tightrope and show them how to get to the right result.

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