Tell Jurors What They Need to Know, But Not Before They Need to Know It

by: Dr. Kevin Boully

Jurors don’t know what they don’t know, and key learning moments are a powerful thing.  

 

Juror hindsight bias is a well-established challenge.  When you need jurors to suspend judgment and see the facts from your client’s or key witness’s perspective despite knowledge of the outcome, unfold the narrative of your case story strategically, like an episode of CSI.  Preview for jurors the evidence as it became available to the case characters, and help jurors experience your client’s thought processes and actions more directly. Do it with a couple of dramatic storytelling strategies:

1. Split the narrative.  In a commercial fraud case, introduce the actors then distinctly divide your opening statement into the critical parts: A) What Your Client knew and relied upon as the deal unfolded; and B) What the Opposing Party knew and did not accurately or completely disclose as the deal unfolded.  You can tell the entirety of Part A first, or you can reveal Parts A and B simultaneously by using a parallel structure.
2. Save your zingers.  Resist the urge to give away your best evidence and arguments too early.  Instead, save those powerful moments so jurors can feel the same surprise and affect your case characters experienced when the information was revealed.

Jurors are not surprised by what is not surprising.  And surprising violations of juror expectations are a powerful persuasive tool.  Click here for more on dealing with juror hindsight bias.