Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

The common expression of the recency effect, “Save the best for last,” says that the latter parts of a message will stick in the memory and be ready for later use. The importance of that effect in your trial message has gained some recent and somewhat unexpected support thanks to some research on the effects of allowing jurors to talk about the case without waiting for deliberations. Predeliberation jury discussion is an increasingly popular jury innovation said to make trials more comprehensible and engaging for jurors without biasing the result. The research, however, puts that into question. Two researchers from Claremont (Kerr & Jung, 2018) are reporting that allowing jurors to talk about the case as that case is coming in, does bias the resulting deliberations, but not in the direction you might think.

The criticism of the innovation has been that it can lead to early commitments and cause the jury to reach premature closure by giving the greatest weight to what they hear early in the case. The researchers, however, found the opposite effect. Conducting a live mock trial in an age-discrimination lawsuit, varying the strength of the evidence and varying whether early juror discussion is allowed or not, they found that it does bias the deliberations, but it does so by encouraging jurors to put greater weight on the evidence that was heard following the predeliberation juror discussions. In their view, juries act as if the evidence heard prior to that early discussion had “already been covered,” making the new evidence especially relevant. The effect, measured in verdicts, was 26.5 percent, a very sizable difference in the social science world, where even small differences can still be statistically significant. But even more intriguing was the reason the researchers saw: “The effect of predeliberation jury discussion was a type of recency effect — the evidence presented later in the trial (and after the jury’s predeliberation jury discussion) had relatively greater impact on the jury’s verdict than the evidence presented early in the trial (and prior to the jury’s predeliberation jury discussion).” The results tell us about the potential influence of letting jurors talk about the case, but also point to other effects to look for even when there is no early discussion allowed.

Don’t Be Sanguine About Predeliberation Discussions

Several states (e.g., Arizona, Colorado, DC, Indiana, Maryland, Michigan) have relaxed the traditional prohibition of predeliberation juror discussion, and in some other jurisdictions, judges are allowing it if counsel does not object. These steps are often promoted based on research from 2000 and 2003 showing that the innovation promotes juror satisfaction, while being neutral in terms of result. The recent research, the first to tease out exactly what information is emphasized or de-emphasized by early discussion, throws that into question. The results, they write, suggest “the rush to implement this jury innovation should be reconsidered.” Specifically, they found that by favoring information that came in after the jury had discussed the case, the jury tended to place more attention on the defense case once the actual deliberations began. Of course it is also possible in a given case, through cross-examination, it could be the plaintiff rather than the defense who has the late-breaking surprise evidence. But, whether jury discussion is officially sanctioned or illicit, it is important to think about who benefits.

One way I’ve thought about it is that in trial, each witness and each day is a contest where someone wins and someone losses. Your goal is to win more witnesses and more days than you lose. What this research suggests is that, especially if jurors are discussing the case in advance, the closer you get to the end, the more important those wins become.

Remember That a Jury is Dynamic, Not Static

Because the thoughts of a jury are not known during trial, there is a tendency to objectify the jury, believing that these unknown reactions are static and a product of pre-existing biases or passions. I’ve heard many attorneys have repeated the (groundless) statistic that 80 percent of jurors have made up their minds as of opening. It isn’t true. Jurors continue to think, continue to learn, continue to react throughout trial. The research gives reason to believe that what comes at the end is all the more important.

So Remember to Save Something for Later

I have written in the past about the ‘but wait, there’s more‘ technique of teasing new information in order to surprise jurors and to overcome resistance to your message. I have also written about the “peak-end rule” indicating that we evaluate experiences based on how they are at their peak and especially at their end. Taken together, the two findings show why it is a good strategy to not put all the cards on the table at the beginning but to save some surprises.

As the researchers note, the effects of predeliberation jury discussion deserves more study. But the focus on recency suggests that these considerations aren’t unique to situations where jurors discuss in advance. The need to see jurors as dynamic and to focus on the “new” are needs that apply to any situation where humans receive and process information.

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Other Posts on Deliberations: 

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Kerr, N. L., & Jung, J. (2018). Should jurors be allowed to discuss trial evidence before deliberation?: New research evidence. Law and human behavior.

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