Dr. Noelle Nelson

Jurors Expect Attorneys to Answer Six Basic Questions:
What? Who? How? Why? When? Where?
(originally published in The Daily Journal, Verdicts & Settlements)

From the jurors' perspective, lawyers must answer six basic questions of a case: what? who? how? why? when? where?

The lawyer's idea of how these questions should be answered, however, is sometimes very different from what the jurors expect to hear. Attorneys need to put themselves in the jurors' shoes when developing the answers to these questions; otherwise, jurors could become confused and unsympathetic to their case.

1) What?

The core of the case, the “what happened” seems straightforward enough. But in order to be most effective, often “what happened” needs to include what should have or could have happened (plaintiff's position) or what was considered and ruled out for various well-grounded reasons (defense's position).

For example, in a medical malpractice case, plaintiff's attorney claims that the Dr. failed to properly diagnose and therefore properly treat plaintiff's condition. Rather than simply present the Dr.'s failure to order X diagnostic test as the critical factor, the attorney could show the many diagnostic tests, procedures and protocols the Dr. could have implemented each step along the way to “save” plaintiff.

Similarly, stating that defendant “meets the standard” be that a standard of care, an industrial standard, or a product standard, is far less persuasive than stating what exactly that standard is, how it is not just met by exceeded by defendant in a number of ways.

2) Who?

Nothing could seem more transparent than answering the “who” aspect of a case, yet jurors are frequently at a complete loss to understand how the parties or key persons are involved in the case, and/or are connected to each other. What is clear and easy for the lawyer to grasp is often obscure to jurors.

Organizational charts and other types of visuals which vividly illustrate not just the flow of communication and/or authority from one party to the other, but which in some way symbolize the relevance of each party to the case, by the use of icons or other graphic devices, are extremely valuable. A confused juror is an unsympathetic juror.

3) How?

Reconstruction of the event – be it an accident, a breach of contract, a failed procedure or product – is a source of juror concern. Jurors are virtually obsessive in their attempt to figure out exactly what happened regardless of the legal importance of non-importance of liability in the case. Lawyers rarely appreciate the degree to which jurors require clarity in this regard, and as a result, often do not answer “how” in a way which satisfies jurors.

The bottom line is, jurors will generally favor the attorney whose version of “How” is clearest and most commonsensical. Clarity is more often than not achieved with visuals: graphics, models, 3-D videos, all of these and more facilitate the jurors' quest for the “truth” of “how it happened.”

4) Why?

Motive is frequently unimportant to the law, but motive is critical to jurors. Too often, lawyers either ignore motive as "obvious” or “irrelevant,” or simply fail to develop motive sufficiently. Motive should be clearly defined, incorporated into the case theme, and repeated unambiguously throughout testimony and evidence.

There's no need to search for convoluted or “original” motives: the tried and true motives of trust/betrayal, greed, promises made/broken, for example, work very well. They are universal, easy to understand and speak to common sense. Motive must, of course, logically fit with the “what” and “how” of the case if it is to ring true with jurors.

5) When?

“When” is another of those aspects which seem ultra-clear to the lawyer, yet can be mightily confusing to the jurors. “When” is best answered by a graphic display of events as they occurred across time.

People are most familiar with “seeing” time on a horizontal continuum from past through present. Lawyers are used to “seeing” time as a series of dates as a vertical list, with dates of relevant events on the left, and descriptions of the events on the right. This is not a familiar configuration of time for jurors had has the disadvantage of being a stagnant representation. A vertical display does not imply movement through time, which is often important to convey.

A timeline of any degree of complexity is best designed by a graphics artist who can create symbols and icons representing key events in addition to flagging important dates or times in ways that will speak more emphatically to the jurors.

A timeline set forth in this manner helps tell the “story” of the case, particularly in cases where the “story may not at first glance appear to be dramatic, for example, in business cases of all types. Story is an organizing device of primary importance for jurors. Anything the attorney can do to facilitate, enhance and support a “story” is of great benefit to the case.

6) Where?

The “where” of the case should not be considered simply as a place, but as a place relative to the overall positioning of the case and related issues. This is most important when the location of the events matters to the case, such as a shopping center affected in an eminent domain case, a house involved in an insurance fraud case, or the stretch of highway crucial to an accident.

Once again, the “where” of a case is best shown visually. And if it is crucial to the “what” or “how,” it should be shown in more ways than one, such as photo and video, so the jurors can better visualize the events that occurred.

Jurors feel more comfortable with their decision when they have been given enough information to understand the case thoroughly.

Providing the what, who, how, why, when and where of an argument in a way that can be readily understood and absorbed by the jurors will make the attorney's efforts much more likely to succeed.

© 2006 The Daily Journal Corporation. All rights reserved.

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