ABA Journal Blawg 100!
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“I want to cry and I don’t know why!”
These words would strike dismay and exhaustion within when my daughter was a tween. Hormonal fluctuations and emotionality would collide with frustrating regularity. Now that she is a young adult, she knows (usually) why she wants to cry and is often ticked off about it. That is so much easier for me! Anger spurs action while teary sadness is powerless and stuck.
We see the same thing on juries. We pay attention to the emotional reactions of jurors because they tell us whether the story is being directed in a way that will result in action or inaction.
Last year we did pretrial research on a very, very sad case where a young woman was murdered in her apartment despite the careful choices she and her family made to try to protect her safety. The facts were horrible. They were truly every parent’s nightmare. And jurors squirmed.
They wanted to blame the parents. “If only, they had…”. The problem was the parents had done absolutely everything possible.
Then, jurors wondered if the victim was somehow to blame. Perhaps she did not lock the door. Perhaps she let her murderer in and that’s why there was no sign of forced entry. But there was no evidence to support that.
Finally, they found a responsible entity and focused their anger and frustration on them. And there was evidence to support negligence.
As the tale unfolded, jurors struggled to explain the story to themselves in a way that would make them feel their own children were safe. Once they identified an irresponsible party who had made the murder possible (and even simple), jurors could not be stopped. Their messages to the young woman’s murderer were among the most angry we have ever seen.
“Go to Hell!”
“An eye for an eye.”
“Hope you rot in hell after you die for taking an innocent life!!”
The message was clear. Focused and directed anger will help jurors feel they are doing as much as possible to right a wrong and, in this instance, to ensure similar negligent behavior won’t be repeated.
The tough part is often figuring out how to direct that anger. That’s where theming and structuring the case narrative come in. And it isn’t about presenting an emotional story. In this pretrial research, we presented the facts in the form of a concept focus group—with no tone of advocacy at all. If anything, the presentation of case facts were designed to be extremely dry, and in a different case, potentially boring. But not here, not this case. Jurors were stunned. Shell-shocked. And motivated to punish.
One of the lessons from the research was that the factually dry presentation actually incited more anger on the part of jurors, because the presentation offered them no relief. There was no catharsis other than that which they provided themselves in their outrage. The case settled, but it was clear that the understated emotional tone of the research group would be very powerful at trial.
Narrative sequencing. Content delivery. And a powerful story. When you have all three, jurors know for sure what they want to cry about. And they also often know what they want to scream about.
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