Managing the Jury: A Trial Lawyer's Perspective on the Art of Jury Persuasion

© 1987 Jeffrey R. Parsons. All rights reserved.

The jury trial need not be foreboding. There is a clear, negotiable path through the forest. Jury trials need not be avoided, unmanageable, or traumatic.

The Bare Essentials
To begin with, we must address the bare essentials of successful advocacy. We must go back to basics. And it is hard to improve upon Aristotle's analysis of the essentials - ethos, pathos, and logos.

Ethos - convince the jury of the personal character of the advocate… and the client.
Pathos - deal effectively with the emotions of the jury.
Logos - convince the jury that the proof logically and reasonably supports the client's position.

Additional Elements
You cannot successfully employ the Aristotelian elements without certain additional elements of effective jury advocacy: Simplicity, Credibility, Order, Themes, Retention, The Law, and Solid Proof.

Simplicity
First and foremost, your case should be a model of simplicity and clarity. Present every key aspect so that it may be grasped by the least educated and least attentive juror.

Credibility
The trial lawyer must be credible, and, ultimately, so must the lawyer's client, proof, and arguments. Collectively, the jury has many eyes, many ears, and much practical knowledge and wisdom. If the jury believes that the lawyer or client is misleading them, credibility disappears, and so too may the case.

Order
Order in your case is not everything, but it is the foundation for all of the things which must be achieved. It is hard to project ethos, pathos, logos, or anything else if you are proceeding in chaos. So, give great attention to order.

Themes
All successful trial lawyers present their case based upon a few key themes, which they have determined to be at the heart of their client's position. These themes should always be simple, credible, and amply supported by the evidence. They should be ideas or phrases which jurors can grasp, remember, embrace, and take back to the jury room - and there use to convince other jurors.

Retention

Your case must be presented so that the jury can retain it. Without this element, all else fails. It is elementary that in a trial the jury will use primarily two of their senses, hearing and sight; yet, too many advocates rely excessively upon only one sense, hearing. As you present the case, place great emphasis upon means of proof which will address both senses, and particularly the jurors' sight. Seeing is believing. It is also a principal aid to retention.

The Law
It is impossible to select winning themes for your case without ensuring that they are consistent with the law. One of the strongest aids in neutralizing your opponent's case is the law of the case. The law is typically designed to level the playing field. So, it is essential that the trial lawyer, at the earliest possible juncture, condition the jury to the law that is favorable to his or her case.

It is never too early to determine the parameters of the law of the case. Indeed, while it is never too early, it can quickly become too late.

Solid Proof
You must be diligent in determining, well in advance of trial, which witnesses are solid and which are shaky. You must know which documents are solid and which will be shredded by explanation, exposition, or impeachment. Never sponsor any witness or any evidence which is not solid, unless there is no alternative and your case will fail without it.

If there is a reasonable choice, avoid double-edged evidence, resting your case solely upon solid proof.

Final argument
Final argument is a time for once again employing certain of the essentials of jury advocacy. Skilled counsel will ensure that the argument is simple, credible, and well ordered. The argument will be founded upon classical principles and key themes which are the foundations of your case, which have been introduced to the jury at the first opportunity in the trial and repeated subtly at every appropriate opportunity.