“What Jurors Think About Attorneys” was originally published in the January issue of Minnesota Bench & Bar.
Regardless of the verdict given, what attorney—having argued a case—hasn’t come away wishing for more insight into the minds and perceptions of the jurors? Given ten years of data from systematic surveys of jurors, some patterns in their responses emerge.
Early in my legal career I tried a civil jury case in Hennepin County District Court. The day after the jury decided the case, the presiding judge called me to say that it was his practice to meet with juries after they finished their deliberations and get their feedback on the trial, the judge, and the lawyers. He wondered if I was interested in hearing about that feedback as it pertained to me. Of course I was interested. Lawyers don’t have many opportunities to get jury evaluations, or any other evaluations. I learned some things from that jury and made some changes based on what they said. I learned that jurors did not like it when I moved too close to the jury box—it felt to them like I was invading their space. I also learned that my efforts to dress very conservatively in order to offset my youth and inexperience resulted in dress that they thought was too bland and serious. I have always been extremely grateful for the time that judge took to share the information with me.
When I began my own career as a district court judge, I made it a point to meet with every jury in any case I tried so that I could answer their questions and get their impressions on the trial process and their role as a jury. Some questions couldn’t be answered of course, especially the inevitable: “What would you have decided, Judge?” In addition, I sent them a survey a few days later and they were invited to return it with their thoughts and comments. Those discussions and jurors’ responses to the surveys offer interesting insights on the perceptions that jurors have of attorneys.
The data discussed in this article was collected from 109 jury trials conducted between 2000 and 2011, 91 of which were criminal and 18 were civil. Jurors returned 550 surveys: 489 from criminal trials and 61 from civil trials. The survey was designed to collect data about the judge, the court staff, the court facilities, the jury instructions, and the attorneys and asked for both objective ratings and subjective observations.
The majority of the respondents were from predominately rural counties of central Minnesota, in the 7th Judicial District. Results indicate these jurors are very respectful of the role of the judge and see the judge as a guide, teacher, and protector. They also universally note the helpfulness of getting jury instructions in writing in addition to the oral presentation.
Jurors were asked to respond to a series of questions that resulted in a numerical rating of the attorneys’ performance. In each of the categories, jurors were asked to rate the attorneys’ performance on a scale from 1=Excellent to 5=Very Poor. The categories they were asked to rate included Evidence Presentation, Courtroom Demeanor, Sincerity, Competence, and Preparedness. Jurors were also encouraged to provide written comments about what they liked about the performance of each attorney and to make suggestions they might have for improvement.
Data was analyzed by grouping all of the prosecuting attorneys and plaintiffs’ attorneys together as one group (referred to as plaintiff attorneys hereafter) and all of the criminal defense attorneys and civil defense attorneys as another group (referred to as defense attorneys hereafter). Follow-up analysis was conducted by separating ratings of plaintiff attorneys from those of the defense attorneys. The data was further analyzed based on three jury outcomes: (1) whether the jury returned a verdict that was entirely in favor of the state/plaintiff on all counts, (2) in favor of the defendant on all counts, or (3) there was a split decision.
The results of the survey generally follow a pattern that you might expect—when jurors return a verdict in the attorney’s favor, they tend to view evidence presentation, courtroom demeanor, sincerity, competence, and preparedness of the attorney in a more favorable light. For example, on a scale of 1=Excellent and 5=Very Poor, jurors gave defense attorneys, on average, a competence score of 1.68 when they returned a verdict that was completely in favor of the defendant, 1.95 when they returned a split verdict, and 2.23 when they returned a verdict that was all in favor of the state/plaintiff. This represents a statistically significant 11 percent drop in the jurors’ perceived competence of the defense attorneys when the verdict went against them.
Defense attorneys appear to be at a slight disadvantage when it comes to jurors’ overall perceptions of their performance …
Chart 1 illustrates jurors’ diminished perception of attorneys when the jury’s verdict was entirely in favor of the opposing party. The scores given denote the percentage change in scores for both sides from when the verdict was returned entirely in their favor to when the verdict was returned entirely in favor of the other party.
Defense attorneys appear to be at a slight disadvantage when it comes to jurors’ overall perceptions of their performance and may wish to pay particularly close attention to these results. For example, defense attorneys’ scores for Courtroom Demeanor, Sincerity, and Competence dropped twice as much as those of plaintiff attorneys when the juries returned unfavorable verdicts.
It is also noteworthy that, in these same categories, apart from the percentage differences in scores, the jurors’ numerical ratings for the defense attorneys were significantly lower than those given for similarly situated plaintiff attorneys. When the defendants ended up victorious on all counts, their attorneys were given ratings essentially equal to the ratings plaintiff attorneys received when the plaintiffs lost on all counts. However, the ratings given to the defense attorneys were significantly lower (and the plaintiff attorneys were rated significantly higher) when the plaintiffs were victorious on all counts. That trend is readily apparent in Chart 2.
If the jurors rated similarly situated attorneys equally, as one might expect, the lines on the graphs would appear as a perfect “X.” One would expect the defense attorneys to be rated significantly higher than the plaintiff attorneys when the juries return a verdict in favor of the defendant on all counts and the plaintiff attorneys to be rated significantly higher than the defense attorneys when the juries return a verdict in favor of the plaintiff on all counts. This expected trend is most closely reflected in the ratings given to attorneys in the categories of Evidence Presentation and Preparedness. However, even in the categories where jurors come close to rating both sides equally, the plaintiff attorneys are still not rated as low as the defense attorneys when the verdict is not returned in their favor and they are rated significantly higher than the defense attorneys when the verdict is returned in their favor.
One might hypothesize why there is such a difference in these scores. Do movies like The Devil’s Advocate (where Al Pacino’s Satan-working-as-a-sleazy-defense-attorney character lives by the motto, “Better to reign in Hell than to serve in Heaven”) have a negative impact on juries’ perceptions of defense attorneys’ performances? Do juries project their general perceptions of the attorneys’ clients on the performance of the attorneys? The data collected in this study was not broad enough to shed any light on the answers to these questions. However, the results are so statistically significant that it suggests Defense attorneys should not ignore these facts as they step in front of a jury.
Jurors responding to the survey commented most frequently on their perceptions of the attorneys’ level of preparedness. Over 11 percent of all of the jurors’ comments about the attorneys were some form of the following statements: “Well prepared,” “Appeared to have done his research”; or, “Did not seem prepared,” “Wasn’t on top of things.” The blanket compliments or criticisms about the attorneys’ level of preparedness do not, by themselves, shed much light on how an attorney can improve his or her performance—unless of course the attorney was indeed unprepared. However, insofar as a blanket compliment or criticism was accompanied by some additional performance-related observations, as was often the case, jurors’ comments may be instructive. Jurors responding to the survey most frequently offered the following sorts of performance-related observations:
- Comments about the attorneys’ ability to communicate: i.e., “Good communication skills,” “Strong voice,” “Clear,” “Articulate,” or “Monotone,” “Weak voice.”
- Comments about the flow of the attorneys’ questioning or arguments: i.e., “Direct,” “Kept it simple,” “Did not belabor points,” and “Don’t repeat yourself,” “Be more concise,” “Present evidence in a more organized manner.”
- Comments about visual aspects of the attorney’s presentation: i.e., “Need more eye contact,” “Use better visuals.”
- Comments about the flow of the attorneys’ questioning or arguments: i.e., “To the point,” “Brief and stated a lot of facts,” or “Repeated himself too much.”
- Comments about the attorneys’ ability to communicate: i.e., “Good presentation skills,” “Articulate,” “Nice to listen to,” and “Dull,” “Talked too slow,” “Too low key.”
- Comments about the attorneys’ treatment of the witnesses: i.e., “Seemed to belittle the witnesses,” “His approach of attacking the witnesses and splitting hairs did his client no service—Drove me nuts,” “Harsh toward witnesses.”
- Comments about visual aspects of the attorney’s presentation: i.e., “Good eye contact.”
These comments can serve as a reminder for both sides that those basic presentation skills are important to consider throughout the trial and not just during the opening and closing arguments.
More is Better
The jurors’ second most repeated suggestion for both plaintiff attorneys and defense attorneys will not come as a surprise to many litigators. No matter what type of trial or what amount of evidence is presented at trial, jurors are never satisfied with the amount of evidence that they must rely upon to make a decision. Twenty-five percent of all written suggestions for improvement (and 9% of all comments) for the attorneys for both sides included some form of the following statements: “Needed more evidence” or “Call more witnesses.” One might hypothesize why jurors are never happy with the amount of information they receive. Certainly, much has been written about the so-called “CSI Effect” on juries—the debate over whether movie and television crime dramas instill in jurors unreasonable expectations about evidence collection.
While we cannot be certain that the results presented here provide clear support for the CSI Effect, both the data and my conversations with the juries following trial suggest that questions about the amount and type of evidence collected regularly arise while the jurors are deliberating. In order to be effective on behalf of clients, whether in a criminal or civil case, attorneys must be ready and willing to delve into questions that may be on the jurors’ minds about evidence that was not presented—e.g., Why didn’t the police get fingerprints off of the victim’s t-shirt? or, Why wasn’t a specific medical test performed? In my experience as a judge, these information gaps, if not addressed by the attorneys at trial, will be filled by the jurors during their deliberations with whatever information or assumptions they have available to them.
“Make your point and move on—we are reasonably intelligent people and have been paying attention to the testimony.”
All of the jurors with whom I have had the pleasure of working deserve commendation. They show up because our legal system is reliant upon them and because they are required to do so. Many do not have any interest in the law and often resent the intrusion on their busy lives. However, when they are called upon, they put forth an extraordinary effort. I can say without reservation that I have been awed and gratified at the universal attitude of jurors who wish to do the right thing and give their time and attention in a sincere effort to follow the instructions of the court and to be fair and judicious. While the jurors’ perceptions and the attorneys’ presentation skills discussed in this article affect how the evidence is presented and received, I think that most practitioners will agree that the vast majority of juries weigh the evidence fairly: They are able to see the forest for the trees and provide both the judicial system and the parties a truly fair and reasonable arbiter. The sagacity of juries is perhaps best captured by a bit of advice from a juror in a criminal trial whose comment is relevant to every litigator: “Make your point and move on—we are reasonably intelligent people and have been paying attention to the testimony.”
The author acknowledges with thanks the assistance of his judicial law clerk, Boe Piras, in preparing this article. Mr. Piras is now practicing law in Cold Spring, Minnesota as an associate in the firm of Willenbring Dahl Wocken & Zimmerman, PLLC.
James W. Hoolihan is a retired district court judge who was chambered in Benton County. He was appointed to the bench by Governor Arne Carlson in 1997. After graduating from St. John’s University and William Mitchell College of Law, he practiced civil law at Hoolihan & Neils in St. Cloud, Minnesota until his appointment to the bench.
Featured image: “Defendants with lawyer and jury” from Shutterstock.