I have recently taught at a string of seminars on the subject of communication, specifically, communicating with juries. But communicating with juries is really just communicating with people. It is not something that really came naturally to me, particularly after law school. So I had to work at it. Probably ten years ago now, I had two major insights that got me on the road to understanding communication. First, all meaningful communication is emotional. This is particularly true if you are trying to convince somebody to do something (as in acquitting your client). Second, we communicate through shared experiences.
Communicating with Emotion
I will usually begin my presentation by telling a story of a moment my son and I had together when he was quite young:
A few years ago, my son went into his “dinosaur phase.” All boys (and a lot of girls) seem to go through this at some point. He got books on dinosaurs and we looked at them incessantly. He learned the names of the different dinosaurs (there are a lot more of them now than when I was his age). He was probably 5 years old, maybe 4 and a half.
So anyway, one day during this time, I got the idea that it might be fun for my son and I to watch “Jurassic Park” together. It had been years since I saw the movie, but I did remember that it had dinosaurs. I mentioned this to my wife, Mollee. She and I had seen the movie together and her memories of the movie seemed to be much more vivid than mine. Mollee all but called me an idiot, but I persisted. I went to Blockbuster and got the movie. I then settled onto our couch and my son sat in his little folding sports chair that his step-mother had given him, the chair that had carried him through a million “Thomas the Tank Engine” viewings.
Now, as it turns out, Jurassic Park is not a good movie for 5 year-olds. The first hint is that it takes a good hour before anything really happens. The characters talk and talk and then they’re in the desert and then they talk and then they fly in a helicopter and talk and then they get to the island and talk and talk and – well, it is just kind of boring. But we stuck it out. Then, everything changed.
After the interminable build-up, the characters get into two vehicles that look like Volkswagen Things painted like either zebras or Holstein cows (I can’t really recall) and take off into the jungle. They get to a place where there is a 50 foot or so high cable fence which is electrified and, I guess, tie up a goat for bait. Then you see the water puddles. Ripples start at the edges of the puddles, move to the middle, and back again, telling us that something very large and very heavy is moving about, Then you hear the thuds. Faint and first, but quickly getting louder.
The characters stay, even though it is getting kind of scary. There are two children with them. They no doubt feel safe because of the high, electrified cable fence. But if you were paying attention during the talk-filled hour-long buildup, you would know that the fence was turned off by a disgruntled employee.
In an instant, the tyrannosaurus rex is there. Shrieking. Putting his head through the cable fence. Then he is through the fence. Everybody hides in the Things except for one guy, who runs to the bathroom.
I look over and my son is now standing, looking at the TV and kind of flapping his hands.
Tyrannosaurus rex chases the guy who runs and drives his head through the roof of the bathroom. He pulls his head back and now has a set of legs hanging out of his mouth.
My son is now hopping on the floor, making kind of whimpering noises, and his hands are flapping like crazy.
Then the angry dinosaur shifts his attention to the rest of the characters, who are hiding in the two vehicles, at least one of which is now flipped over on it roof. He runs up and sticks his nose into the window of one of them and then starts spinning it around. The kids are in this vehicle.
At this point, my son jumps in the air and screams, “Daddy! They eat people!” The word “people” had about 30 syllables as his voice trailed off.
“Told ya,” Mollee says, reaching around to turn off the TV. The whimpering and screaming had brought her into the room.
I will then ask the participants, “Now, think about what you were visualizing in your mind while you read this story. What did you see? Were you imagining my son and me watching a scary movie together?” At first, most will say they pictured my son and I sitting together on a couch. So, I’ll ask, “What color is the couch?” They always have a color (even though I never said what color the couch was). Finally, someone will say something like, “I was thinking about the time I sat down with my son and watched ‘Jaws'” or something like that. Now we’re getting somewhere.
Communicating Through Shared Experiences
If my audience has not personally experienced the story I am telling, then I may as well have been communicating through grunts and clicks. We are only able to make sense of the story I just told because, in one way or another, we have all lived it. Either we have children and a spouse, or we were a child once and can imagine how our parents would have acted. We know what furniture looks like from personal experience. It goes on and on. You are putting yourself in my place, my son’s place, or my wife’s place or maybe even all three because you have been there. We are communicating through our shared experiences of children and childhood. As I tell my story, you are going through your catalog of experiences, constantly testing my story against your own experience. This analysis takes place at an emotional level. We do this over and over throughout the day. As we talk to people, read stories in the newspaper, watch movies, or listen to the radio, we are continuously drawing on our own experiences to make sense of what is being said. This is communicating through our shared experiences.
Jury Selection & Credibility
Jurors do the exact same thing during trials.
So what are the implications of this? Obviously, this explains why a person who has been in a DWI-related accident will not be your best defense juror in a DWI trial. But the implications are broader.
I believe we naturally judge the credibility of a story by what we think we would have done in the same situation. What this means is that throughout the trial, jurors are going to be putting themselves in the place of the different characters in the drama, whether it be witnesses, the complainant, or the defendant. They will judge the characters based upon what they would have done in the same situation. Where a juror believes that a person’s actions don’t make sense or where the character’s emotions are not appropriate, that belief will be based on the juror’s own experience and how he believes he would act or feel in the same situation.
Greg Westfall, August 27, 2017