In the movie, The Verdict, the resolution of a medical malpractice case depends upon the clarity of a doctor’s testimony. As the lawyer for the defendant, actor James Mason, questions his doctor witness in a videotaped prep session for trial. “Dr. Towler, you were Debra Anne Kaye’s anesthesiologist?” Dr. Towler says defensively, “I was one of a group of medical….” Mason replies, “Just answer affirmatively, simply. You were her doctor!” Mason LATER asks, “Why wasn’t she getting oxygen?” Dr. Towler says, “She had aspirated vomitus into her mask.” An exasperated Mason snaps, “She threw up in her mask! Now just cut the bull---- doctor, just say it!”
Let’s face it, in trials, and in life for that matter, simple language IS more persuasive. Using complex jargon is one way that lawyers and witnesses make things more complicated and confusing than they need to be. Attorneys and witnesses should take care to, “Just say it affirmatively, simply.” In other words, “cut the B.S.” and use simple words. But how do you do that?
Are you aware of when you or your witness are using “legal speak”? You may not recognize that the terms that are second nature to you are not to jurors. While education levels vary greatly on jury panels, and this explains some misunderstandings, most jurors, no matter their education, are not familiar with legal terminology and certainly not with the subject matter of many lawsuits. (In fact, if jurors are familiar with the subject matter or the legal world during voir dire, they are typically struck during the jury selection because they have pre-formed opinions or for fear of their tendency to become leaders.) This article attempts to clarify what jurors frequently misunderstand based on our mock trials and post-trial interviews with thousands of jurors. As a test for myself, I will try to keep it simple throughout this article, but when I catch myself falling into the use of “legal speak” or complexity, I will translate what I would substitute for jurors if they were my audience.
How can lawyers assist jurors to find clarity, rather than obfuscating [translate: confusing] concepts? Start by recognizing that “obfuscating,” is not a word that most jurors use. Lawyers use words like “subsequent” and “pursuant to” on a regular basis, and most jurors don’t know if they meant the event happened before, or after, or as a result of, the event. Really, you say? Yes, listen to these other examples. “But for” is another one of the most commonly used phrases in opening statements, and yet you would not hear jurors say, “But for the rain, I would not have had an accident!” “Promulgate” and “mitigate” are also commonly found in openings and testimony, as are “inherent,” “albeit,” “stipulated to,” “heretofore” and “exculpatory.” Keeping it simple means not using words which jurors do not use every day, especially when other words will “suffice” [translate: work]. (And let’s comment on that double negative I just used in the last sentence because that is also a bad idea.) You do not want to insult jurors’ intelligence, but as the story-tellers, you need to recognize jurors live in a different world than lawyers.
Do you want to know what jurors commonly find confusing about specific legal terminology? We know, for example, that many people have an everyday sense of what “conflict of interest” means, which may or may not comport with [translate: match] the meaning of the law. Jurors often assume that anyone who has a connection to another individual, for example, an auditor who has a membership at the same country club as his/her client in an audit case, has a conflict of interest. That may or may not be true legally or literally in your case. In another example, “hearsay” is commonly misunderstood. "Hearsay" is a word that jurors frequently construe [translation: understand] as meaning, “They’re just saying that.” We have heard jurors say that a witness’s testimony is hearsay even if it is directly from their own experience! So much for being able to move into the legal world and away from common everyday definitions.
Other examples of misunderstandings include concepts like whether something is or is not “material.” In a securities fraud case in which the defendants are accused of not disclosing information, jurors think “material” simply means something that they would have wanted to know before making a purchase. In an accounting case, jurors often look at the size of the numbers involved and decide that a “big number” is material. And, what is something a “reasonable” person does? This is one of those troublesome concepts that may make sense to lawyers, but without context means only “in my opinion” to a juror. Further, the word, "substantial," as in "substantial factor,” has a meaning in jurors’ worlds, but when defined in the instructions it is interpreted in different ways by different individuals. For example, some jurors say, “Hey it’s important to me, so it is a substantial factor.” Is that enough? It is for that juror!
Other examples include getting confused about the standards of evidence. The preponderance of the evidence standard is a frequently misunderstood concept. Not only do jurors have to be disabused about applying the “beyond a reasonable doubt” standard from criminal cases, but they are often confused by definitions including “more likely true than not” or the “greater weight of the evidence.” Recently a defendant won a federal case after about 15 minutes of deliberations. The jury had taken a straw poll which was seven to five for the defense. This kind of split would typically have indicated that there was a good discussion, but the deliberations ended abruptly based on a misunderstanding. One juror said, “The judge told us if it was more than 50/50 for one side, a preponderance of the evidence, that side wins.” Sadly, this is not the first time we have heard that jurors have gotten preponderance of evidence mixed up with convincing the majority of the jury on a particular issue.
Lawsuit subject matter can be challenging as we have alluded to [translation: suggested] above. Many cases have complex terminology whether it be medical, science or business related. For example, anything related to patent litigation is a whole new world. When an IP expert gets on the stand and starts using words like “state of the art,” “infringed,” “invalid” and “re-examination,” jurors eyes glaze over even when the Federal Judicial Center patent video is played in advance of trial. The words “prosecution,” “obviousness” and “anticipation” have intuitive meanings that do not match their applications [translation: uses] in the patent world. The word “obvious” means “obvious to one skilled in the art” and not just “obvious to anyone,” which is a particularly confusing concept to jurors. What exactly does that mean? It is not obvious what the term “obvious” means!
Sometimes jurors’ responses to the use of common legal terms reminds us yet again that they do not live in the legal world, but they have heard many of these terms on television and think they know how to use them. In a recent mock trial, a juror kept using the word “defacing” for “defaming.” “The defense is just engaging in character assassination – they’re defacing him.” Well, they might have been marring someone, but not in a that way. In a different vein, in the world of asbestos litigation, jurors have difficulties moving away from common perceptions they have of asbestos, and the diseases that have been alleged to develop from exposure to asbestos. As jurors in a recent mock trial struggled to talk about asbestosis and mesothelioma, very complicated names, one juror called the disease, “Asbestitos” which closely resembles the name of one of our favorite chips.
Another very common mis-understanding is about the phrase related to causation, “a proximate cause.” Many jurors are convinced that they need to determine “an approximate cause,” of the accident, not determine if a particular act was a proximate cause. As you can imagine determining “an approximate cause” is not even close in meaning to the legal term. And, speaking about misunderstandings about causation, many jurors think that the parties are talking about “a casual relationship” rather than a “causal relationship.” Casual is more like a loosely defined dating relationship than a one related to legal causation. These misunderstandings are not automatically related to juror intelligence or even related to the amount of time they have spent in a mock trial (versus a trial). They are reminders that if a word or phrase is not in someone’s everyday language, it will not be automatically understood.
Jurors have funny ways of letting us know when we have really missed the mark in explaining a concept, particularly with regard to damages awards. For example, jurors commonly believe that punitive damages should be awarded whenever compensatory damages have already been awarded. They just don’t get the difference between the definitions. In some cases, jurors confabulate [translate: mix up] the terms compensatory and punitive damages. In one case they decided to combine the terms to mean an award of “compunitory damages” which captures the desire to make a party whole and punish it in one fell swoop. In several studies, jurors have also gotten the terms willful and wanton wrong—in those cases the jurors though that willful and "wanton" conduct was the Chinese "wonton.” Yummy, but not correct. Again, “wanton” is not an “everyday” word at least in jurors’ legal vocabulary.
Last, but not least, jurors sometimes do not understand damages experts’ analyses. In one case, an economist was brought in to court to testify as to the economic loss related to a plaintiff’s lost income. The economist testified that there were different mortality tables for men and for women and since the plaintiff was a man he had used that mortality table which indicated he would have a shorter lifespan. The jury returned a verdict for the plaintiff and awarded damages. The damages awarded, however, were about half of what the plaintiff’s lawyer had been expecting based on the economic testimony. After the trial, the plaintiff lawyer thanked the jurors for the verdict but asked how the jury had arrived at the damages number. One juror, a woman, told the lawyer with a slightly steely look in her eye: “Well, we were in favor of your side of the case and were determined to award damages to your client’s family. We did not like, however, the fact that you brought that witness into court who testified concerning the ‘morality’ table which predicted the lifespan of the decedent. That expert indicated that because men are less moral than women, they have a shorter lifespan, and frankly, we just aren’t going to put up with that!” Well that is a classic misinterpretation, isn’t it!
Sometimes simplicity is truly in the eye of the beholder, and the audience decides what is simple and what is not. In one recent chemical patent case, the defense attorney told the mock jurors that the chemical change made by the inventor to achieve his invention was simple. The mock juror said, “He said it was simple, but to me, H2O is not simple!” The message needs to be clear not only to the legal team, but also to people who are like those who will serve on the jury. It is not always easy to know what is simple to jurors and what is not, or what is clear and what is “legal speak.”
As Mark Twain would say, “Say what you are proposing to say, not merely coming close to it.”1 Remember the following guidelines gleaned from the jury misunderstandings above: 1) Use the simplest word possible to get your point across. Realize that that law school has increased your vocabulary in ways that may actually make it harder to understand you. 2) Spend time translating the law to non-legal speak in your closing argument. Legal terms can matter to jurors, but only when they understand what you are talking about. 3) When the specific subject matter of your case requires special instruction, visuals are particularly useful in helping jurors to remember the terms to which you are referring. Create demonstratives that can be admitted into evidence so that jurors can take them back to the jury room and use them. 4) Remember that no matter how experienced you are as a lawyer or an expert, jurors can and will misunderstand your words, phrases and references. The only way to assess whether or not jurors understand your words is to engage in mock trials and focus groups to discover the words THEY use to describe your case.
And as James Mason in The Verdict says, “Say it affirmatively, simply.” And “cut the B.S.” Remember to choose your words for clarity, not confusion.
Thank you to my colleagues at DecisionQuest who helped with this article: Michael Biek, Phil Anthony, Steven Rushefsky, Dan Wolfe, Leslie Ellis and John Gilleland and Steve Son.
1 Twain quote from his article entitled, “Fenimore Cooper’s Literary Offenses” By Mark Twain, 1895, found in https://www.pbs.org/marktwain/learnmore/writings_fenimore.html
Dr. Ann Greeley of DecisionQuest's State College, Pennsylvania office, has been a psychologist and trial consultant for over 25 years. She has consulted on over 1,000 civil and criminal cases in more than 100 federal and state jurisdictions throughout the country. In her practice, Dr. Greeley has conducted extensive pre-trial research including jury deliberation groups, surrogate jury research groups and surveys, witness preparation, jury selection and post-trial interviews in venues in most of the 50 states and territories, including Alaska, Puerto Rico and Guam. Dr. Greeley has worked on intellectual property, product liability, antitrust, commercial, employment, insurance coverage, environmental, personal injury, and medical, accounting and legal malpractice cases, many of which have been high stakes and highly publicized. Dr. Greeley’s experience talking with more than 600 deliberating surrogate and actual juries, provides her with the expertise and resources to make a difference to a winning trial team. DecisionQuest is a Diversity Partner of the Litigation Counsel of America.