Explaining complex commercial and business concepts to a jury without peers.

• Author: Aveni, Carl A.

FOR the last eighteen months, you have been steeped in the intricacies of your case. The facts that should make a difference. The theories that satisfy or refute the applicable five-pronged prima facie test. The idiosyncrasies of the witnesses, and the temperament of the judge. In final trial preparations, you laid out the entire case like a jigsaw puzzle and admired the interlocking arguments and evidence. And now, having marshalled the full resources of your client, and armed with your own shining felicity of expression, you look into your jurors' faces and see ... absolutely nothing. Blank incomprehension. They aren't following a word of what you're saying. Where did you go wrong?

It may be that, during trial preparation, you structured your case to appeal to the understanding, sensitivities and mindset of a lawyer, rather than the very different worldview of a juror. All those years of law school; the time you spent apprenticing as an associate; the decades of partnership thereafter; the year and a half that you devoted to working up this very case--all have shaped your thinking in a way that, at this moment, is entirely counterproductive.

Your jury has none of the benefit, or baggage, that you've brought to this experience. And you don't have a lot of time to get them on your side. In commercial and business litigation, your problems at this moment are compounded by the specialized vocabulary and practices of the business world--which may well be entirely foreign to your jurors. Mezzanine financing. Fiduciary duties. Proprietary trade secrets. Leveraged buyouts. Is it a non-compete or a non-solicit? Boards of directors, limited partners, general ledgers. None of this may be within the life experience of the individuals tasked to decide your case.

You can start by coming to grips with their psychology and the filters they use to process the information you will present in trial. This article focuses on three basic questions:

1. How do juries cognitively organize and interpret complex or unfamiliar concepts in a business case?

2. How can you maximize juror comprehension, so that they can follow the narrative thread of your business case?

3. How can you consistently reinforce the evolving narrative thread to maximize juror retention?

By focusing on cognition, comprehension and consistency, this article seeks to provide both psychological insight drawn from a rich body of juror research and practical tips for how juror psychology can be harnessed to your advantage in a business dispute.

1. What Was That Again? Jurors Struggle to Understand Legal and Business Concepts

   First, let there be no doubt that jurors struggle to understand concepts typical to even straightforward commercial and business disputes. While there is enormous regional variability, if one was to profile a fictitious average juror drawn from national demographics, that juror has graduated high school, but has not completed a four-year college degree. (2) Yet we might task that juror to consider the facts of a trade secrets business dispute--likely involving accounting principles, general ledgers, business valuation damage assessments, a computer forensic expert, and competing interpretations of a covenant-not to-compete or an employee handbook. And that's just for the business concepts. The legal standards conveyed in the jury instructions are equally daunting.

   Several studies have shown that jurors typically understand roughly half of the jury instructions that they receive at close of trial. (3) After polling sample jurors following instructions, one study summarized their understanding:

   [O]nly half of the references to the law were accurate, even when credit was given for partial accuracy. One-fifth of the references were clearly, seriously wrong. (4) In another study, despite explicit contrary instructions, 43% of potential jurors believed that circumstantial evidence was "of no value," and 23% believed that when faced with equal evidence of a defendant's guilt or innocence, the law required that the defendant should be convicted. (5) Within the civil context, studies have found that jurors struggle to understand and apply concepts such as negligence, liability and damages. (6) In one especially worrying instance, when given basic instructions on apportioning negligence liability, the average juror comprehension score in subsequent testing was a dismal 9%. (7)

   Since it is not possible to meaningfully change the demographics of your jury pool, and recognizing that arcane, hyper-technical legal and business distinctions will be lost or muddled during evidence, instruction or deliberation, how does a trial lawyer get a jury to understand the issues in a complex business case? There is no better starting point than appreciating how jurors process new information.

2. Cognition: Meeting the Jury Where They Are

   1. Jurors Interpret Evidence Through Tropes and Narrative Stories

   One of the central questions of jury research over the past several decades has looked at the cognitive framework by which jurors:

   1) receive and interpret evidence; 2) assign weight to those interpretations; and then 3) use the resulting relative weights to inform their subsequent interpretations of follow-on evidence. While there are numerous competing heuristics, (8) the leading model for understanding juror cognition and decision making is the so-called Story-Telling Model.

   According to the Story-Telling Model, decision makers organize and process information according to set-piece story schema previously acquired through socialization. (9) These story schema consist of a series of narrative tropes that come from our broader culture: the jealous, controlling lover; the plucky self-made entrepreneur; the incorruptible maverick whistle-blower; the greedy and insatiate tycoon. Each of these stock characters, derived from our broader culture, offer competing templates for organizing each new bit of information.

   These culturally-based...