The missing link: connecting key evidence to the jurors.

• Author: Sobus, Mark S.

WHEN we speak, we hope to be heard and understood. When trial lawyers speak, they hope to be heard and understood, but they also hope to persuade. Unfortunately, too often in the course of a trial, attorneys let opportunities to persuade jurors pass them by. They present crucial case information, trying to use clear easy-to-understand language in a dramatic and memorable way, but jurors are unmoved. Why? Often, the problem does not involve language, presentation, or style, but "the link." There is a missing link for jurors. Information is laid out in front of them, but its relevance is never made clear to them. Or worse, the information is simply never going to be relevant to them, no matter how artfully it is presented.

On one hand, attorneys are presenting what they believe is important and relevant information. On the other hand, jurors--who have their own ideas about what is important--are scratching their heads and wondering why the lawyers are discussing a particular topic, trying desperately to discern the point that lawyers are trying to make. Ultimately, jurors wonder why lawyers are wasting their time.

Three Inaccurate Assumptions that Lead to the Missing Link

Why does this missing link occur so often at trial? Attorneys make three inaccurate assumptions about jurors. First, attorneys assume that the most important case issue for them will also be the most important case issue for jurors. For example, in some corporate conspiracy cases (where a small company claims it was victimized by a conspiracy at a larger company), defense attorneys often assume that jurors will be most concerned with whether a conspiracy actually existed inside the larger company. Based on this assumption, attorneys focus on evidence about the lack of motive or the absence of meetings between alleged conspirators. Attorneys even put together detailed timelines to make it easy for jurors to understand that alleged conspirators would not have been able to meet, but often jurors remain unmoved, primarily because whether a conspiracy technically existed is not the most important case issue for them; they usually just want to know whether the small company was treated fairly and whether a pattern of bad or abusive conduct on the part of the large company exists.

Second, attorneys assume that evidence they believe is relevant will be equally relevant to jurors. For example, tutorials about the technology involved in a patent dispute often fall into this category. Attorneys see these tutorials as highly relevant and ironically, in post-trial interviews, jurors often say they enjoyed the tutorials and found them helpful. Jury research reveals that jurors rarely use this information to decide whether there was infringement or invalidity. Instead, their infringement decisions are usually based on whether there are simple commonsense differences between the patented technology and the allegedly infringing technology, not on an educated understanding of the nuts and bolts of the technology.

Third, attorneys assume that jurors will connect the dots on their own--that jurors will accurately link key evidence to their verdict decisions. While the link may be obvious to the trial team, jurors cannot always be counted on to see the immediate relevance of evidence presented during a trial. A significant portion of expert witness testimony unfortunately falls into this category. Experts frequently delve into the minutiae of a case without telling jurors why these details are important to their ultimate decisions. For example, an expert in a medical malpractice case might give jurors a commonsense, easily understood explanation of how the liver works. Jurors may understand the testimony, but have no idea how they are supposed to use the information to make a verdict decision about whether the defendant hospital was negligent. It is not a failure of understanding; it is a failure of linking. As a general rule, jurors aren't lazy, but they often don't appreciate why a particular piece of information is important for them to remember and use. It is up to the trial team to do the hard work of creating clear links for jurors.

The Most Important Step

The most important step in linking is to identify what the jurors perceive as the central issue in the case. What is the issue or issues on which jurors are most likely to base their verdict decision? Is the central issue whether the company adequately warned consumers about its product? Is it why the company failed to pay the plaintiff's insurance claim immediately? Is it providing a clear alternative explanation for why a particular accident happened?

Accurately determining what jurors will see as the central issue is more than half the battle, and identifying that central issue is almost always the result of an implicit (past case experience or general experience with people) or explicit (jury research) empirical process. In other words, spotting the central issue does not happen by accident. It is the result of hard work and study that is focused on respecting the things jurors care about. The trick, however, is that even after you are convinced that you have identified the central issue for jurors, you still must take great pains to ensure that you are presenting evidence that jurors will find relevant to their evaluation of that issue; you must be sure the evidence you present is clearly linked to jurors' assessment of the case.

The Missing Link

Our interviews with numerous real and surrogate jurors suggest that much of the information presented at trials falls by the wayside. Jurors, forced to sift through a mound of information for a few relevant kernels, frequently find kernels they like and then ignore or discard additional information. Thus, a five-week trial on a patent's validity ends up being decided solely on the fact that the Patent Office granted a patent to the plaintiff or a three-month patent infringement trial ends up being decided on the fact that the drawings of the products at issue had some minor differences. The rest of the evidence that attorneys took great pains to present is simply lost on jurors. During post-trial jury interviews, we often seek jurors' reaction to issues and evidence that were central to the trial team, only to learn that jurors either have no memory of this evidence or concluded that it just wasn't important.

Surely no one sets out to be ignored or misunderstood, so why does such serious miscommunication occur? There are three basic reasons for the miscommunication:

1. Trials Do Not Present Facts Chronologically

   Trials are an odd way for jurors to obtain information. Facts comes to them bit-by-bit in an awkward question-and-answer format that bears no resemblance to how they consume information in their daily lives. The practicalities of trial also frequently result in information being presented to jurors out of sequence. For jurors, it is like reading a novel by starting in the middle, then skipping to the end, then jumping to the beginning. The information is all there, but jurors don't always know what to do with it. The trial process is long on information and short on context, and it is challenging to make sure that jurors realize why you are making particular points and how those points should play into their verdict decisions.

   One of the main reasons we recommend that trial teams develop and deliver an overall "story" of the case and then reinforce that story throughout the trial is to ensure that jurors have a clear context, a framework for organizing all of the scattered bits of information they receive throughout trial. Without such a framework, jurors have no logical way to store...