Jury Persuasion in Criminal Cases: Utilizing “Solution Selling” Techniques

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Saturday, December 6th, 2014
Jury Persuasion in Criminal Cases: Utilizing “Solution Selling” Techniques

“Winning isn’t everything... It’s the only thing.”

—Vince Lombardi

Introduction to Salesmanship

The fundamental to good selling technique is to teach customers why they want to do what you want them to do. Good salesmanship does not involve brow-beating or overwhelming a customer. The foundation to making a sale is to gently lead someone to do what you want them to do.

Before you can sell a product, your prospective customers have to trust you. They must see you as more credible than your competition. Accordingly, the jury must believe you are more direct and honest than the prosecutor, witnesses, or judge. You cannot be seen as trying to conceal information, spin facts, manipulate, or lie. You must be the one person they can count on to calmly and objectively present them with the truth.

Before a venire appears, you need to think about how you want them to see you. Are they going to see you as belligerent or cooperative? Manipulative or forthright? Obstructive or facilitating? Comfortable or nervous, patient or anxious? The impression you make in voir dire is the filter through which the jurors will interpret your actions, and those of your client, during every moment of trial and deliberations. Their respect and trust for you as an individual from the very start translates directly into how much credence they are to give your theory of the case, your evidence, and your client.1

First impressions count. You must be seen as the most open, honest, and trustworthy person in the courtroom; determine what it will take for the jurors to see you that way. You need them to bond with you, trust you, and be willing to follow your guidance. What can you do to sell yourself as the individual they can most rely on during this unfamiliar process?

There is no single answer. All lawyers have their own style, and you will never be trusted if you try to communicate in a way that does not fit. You have to access the parts of you that can be nakedly open and be able to gracefully acknowledge criticisms and trouble areas in your case. Only by being as candid with the jurors as possible can you get them to trust you to the point that they sit a little straighter and listen a little more closely when you speak. Lawyers that jurors trust are hard to beat.

Jury selection is not just about jury picking, and a good argument can be made that jury picking is not the most important part of jury selection. What you need to focus on is selling your­self to the jury. By the end of voir dire, every fair-minded venire member should trust you and want to see you win. While you want to disqualify as many jurors as possible who are not fair-minded, everyone who is not challengeable for cause should be acceptable.

Once you have the jury’s trust, do not squander it at trial. Do not try to get a witness to say something he or she did not mean to say. Give witnesses a chance to retract any statements that were not what they really meant. Jurors will see through your putting words in a witness’ mouth. Even if the testimony helps, the bond you have lost through trickery will come back against you. Use Motions in Limine to keep out what can be kept out, but be flexible enough to incorporate the bad facts into your defense. You must maintain your credibility even at the expense of some challenging moments.

Every trial represents a problem a jury must resolve: You need to offer the jurors the best fitting, most logical solution to that problem. You want them to trust you enough to feel confident accepting the solution you have to offer, because then they can safely rely on your expertise and integrity. The most irreplaceable selling skill is to bring about the belief that you are the most steadfast person in the courtroom. If you do not do this, you will lose. If you do this, you are going to be hard to beat.

Solution Selling Techniques

The term “solution selling” was coined by Frank Watts in 1975 based on his experiences at Wang Laboratories. “Solution selling” refers to a “consultant” sales approach. When a consultant is hired by a company, he or she handles the job in this manner:

1. Reviewing the client’s needs: Your starting point is understanding the clients and their needs and your ability to meet those needs.2 The clients are tasked with determining the facts of an incident they know nothing about. Consider the duties of the client, how they must perform them, and on what facts they will have to base their decision.

2.  Evaluating data: Because the jury has to determine the facts, their most urgent need is to decide what, and whom, to believe. Consider the evidence anticipated, what facts are beyond dispute, and what, and whom, the jurors will have to believe or disbelieve in order to vote “not guilty.” If there are facts beyond dispute, acknowledge them and take them off the table as early as possible, lightening the jury’s duty and making yourself more credible at the same time. Stick to fights you can win.

3. Presenting recommendations: The consultant’s service is to provide a solution that meets the client’s needs. The jurors need to be comfortable with their verdict; your role is to present them with a way to be more confident about acquitting your client than with the alternative. If you are their most dependable resource, in the end they will feel most confident relying on your theory of the case.

4. Addressing client concerns: Remain flexible and adapt your services according to the evidence. Listen to what the prosecution offers and adjust accordingly, both in content and tone. Observe the jury’s reactions and avoid using a scripted presentation. Instead, read the moment and adapt with grace and flexibility. Some of the best moments in trial come from things you had no way of anticipating. Be prepared to embrace whatever opportunities arise.

When someone hires a consultant, they begin by evaluating the credentials, experience, and reputation of various candidates, and selecting the one who appears to best suit their needs. But jurors are stuck with the lawyers hired by others. The first thing you must do is convince them that you are the right consultant for them. The jurors did not get to check you out beforehand—you must prove yourself to them now.

By acting as a consultant, the competitive climate jurors may anticipate is neutralized, as the jurors come to see you not as an adversary but as a trustworthy, objective resource. They understand you are trying to sell your theory of the case, but as you focus on the reasons why they want to accept your theory (and as they should already trust you more than your adversary), yours will be the theory they rely on.

Preparation

Preparation begins with developing a credible theory which, if believed, will logically result in acquittal. Preparation makes your time at trial more effective. Your theory gives you an active plan to empower the jury to acquit. Trial prep dramatically improves the probability of success and may include the following:

1. Study and Understand the Needs of Jurors: Get to know the average person in that jurisdiction to learn and understand how he or she thinks about the issues involved in your case. Go to school meetings, Little League games, town meetings, art receptions, civic meetings, etc. Get your hair cut near the courthouse and listen to your hair dresser or barber. You need to do more listening than talking.

2. Discuss your theory with people you meet: Let average folks respond to the facts in the case, see which arguments they find compelling, and which they disbelieve. In most cases, we cannot afford to run mock trials or focus groups, but for the price of a cup of coffee or a beer, you can test your theory on friends from the community.

3. Read: Read books on the subject of juries, group decision-making, and the art of jury selection. There are numerous studies on these topics that trial lawyers should be familiar with.

4. Join clubs or other organizations as a rank-and-file member: Attorneys are notorious for providing leadership. You cannot learn how others think by leading and talking as well as you can by following, listening, and observing. From this, you can observe how others act and what motivates them to make difficult decisions—exactly what you plan on asking jurors to do.

We tend to spend our time with like-minded individuals. We begin to think everyone thinks somewhat like us: Generally, nothing is further from the truth. Your circle of friends cannot prepare you nearly as well as an occasional conversation with strangers at a diner or local watering hole.

As important as it is to know your local community, this is even more critical when you have a case out of town. Read the local papers and listen to the local radio. At the very least, talk with local criminal defense lawyers about the local community and attitudes.

Evaluate the Evidence and Potential Witnesses

You need to know what the evidence will be so you will know which facts are most likely to influence the jury’s decision and how to incorporate those facts into your theory. You need to base your decisions on evidence, not assumptions or wishful thinking. Discovery and investigation are outside the scope of this article, but the first step has to be absolute mastery and organization of the facts.

The ability to marshal evidence without delay builds massive credibility before the jury. If the documents you need are right at your fingertips, the jury sees you know and understand what matters. You are prepared, in control, and reliable. If you have to rifle through boxes of papers to find what you need, you will look confused and will lose credibility. Mastering the evidence and knowing what to expect lets the jury see you know what really happened—and makes them feel confident in following your lead.

Draft a Theory of the Case

Make sure that your theory is internally consistent, and that to an average juror it ultimately leads to one logical conclusion—not guilty. The theory must take into account (and as much as possible depend on) all facts beyond dispute and be credible to an average person. Make sure the rest of the evidence you need will be admissible.

What most scares you about the case? Is there something you may not be able to keep out that can destroy your theory at trial? Is there something you may not be able to get admitted that your theory depends on? If you are not confident the evidence will conform to your theory, you are not ready to go to trial.

Not every case presents a good trial case. If you cannot come up with a winning theory supported by the facts, ask your­self why the case is going to trial. What needs to change for you to have a winnable case, and what control do you have over that? Is the case about sentencing issues? A stubborn client? A dogmatic prosecutor?

Prepare Mentally

Convince yourself that you deserve to win. The jury must see you as sincere and confident—or they will give the verdict to the person in the courtroom who is sincere and confident. No matter how guilty you know your client to be, the jury needs to see you as the proud champion of his righteous cause.

If the jurors do not see you as believing in your case, they will not believe in your case. If they do not think you trust your client, they will not trust him. If you do not project a confident belief in your case, you are going to lose.

Developing a Presentation Plan

Once you have your theory, you need to develop logically flowing themes to communicate your necessary facts to the jury. You need to know how you will conduct each phase of trial—from voir dire, opening statement, cross-examination, presentation of witnesses, re-direct, to final argument, complete with backup plans in case the evidence does not develop as anticipated. (It never does. Anticipate where the surprises are most likely to lie.)

You need to know what evidence you will introduce, through which witnesses, and why that evidence is admissible. You need to know what evidence you need to keep out, and why that evidence is not admissible—and how to respond if the judge lets it in anyway. With good planning, you can present your theory seamlessly. Without it, your best opportunities are doomed. An evidentiary checklist should be made to ensure that every necessary fact gets admitted at trial.

Establishing a Trial Objective

Every aspect of trial needs a specific theme with specific objectives directing that aspect. This must be done with discrete steps to forward your theory of the case. While a case can have only one theory, you can use as many themes as you need: You can have a theme for a witness, an event, a piece of evidence, or to re-frame the prosecution’s theory. Creating a theory and supportive themes before trial adds direction and confidence. For each stage of trial to be effective, that stage has to lead to some action in the minds of jurors that advances the selling process toward acquittal.

Your attitude, posture, facial expression, and eye contact communicate to the jurors how you feel about the case. Studies show that on meeting someone for the first time, a judgment is made within the first seven seconds. Nonverbal cues have over four times the impact on that impression as verbal statements. Practice before a mirror if necessary.

1. Attitude: Jurors pick up on your attitude immediately. As in sales, jurors respond to confidence, enthusiasm, and hu­mility.

2. Posture: Status and power are conveyed by height and space. Standing tall, pulling your shoulders back, holding your head straight are all signals of confidence and competence.

3. Smile: A smile is an invitation, a sign of welcome. It says “I am friendly and approachable.”

4. Make Eye Contact: Eye contact transmits energy and indicates interest and openness. Practice by noticing the eye color of everyone you meet.

5. Raise your Eyebrows: Open your eyes slightly more than normal to stimulate the “eyebrow flash” that is a universal signal of recognition and acknowledgment.

6. Lean in Slightly: Leaning forward shows you are engaged and interested.

Voir Dire

For decades, we have learned voir dire is about selecting jurors. Forget that. You will use it to bond with the jurors and establish yourself as their advocate and expert. If the jurors are to look to you as their most reliable source of information, you need to establish a consulting relationship with them from the beginning.

Start voir dire by distinguishing yourself from the prosecution and grabbing the venire’s attention. Where did the State try to manipulate the jurors, talk down to them, minimize their bur­den, or oversimplify the issues? Find ways to be more honest and to provide a fuller, more complete picture of the case and the juror’s role. Do not try to out-slick the State or upstage them with a flashier presentation. Voir dire is about rapport.

Digital presentations can turn into crutches, and create a bar­rier between you and the venire. You would not use a PowerPoint presentation to get close to a date; you would use eye contact, compassion, and good listening skills. Those are the same skills you need to use to bond with jurors. Showing them a picture can be part of it, but do not let that become a distraction.

Rapport is the mutual comfort and understanding that develops when you and the jury share a common interest—fairly resolving the case and seeing justice done. Allow each juror to believe you are speaking directly to him or her using appropriate emotion and vulnerability. Maintain eye contact; smile when appropriate. Like Paul Harvey used to say, your purpose is to give the jury the “rest of the story.” Make them anxious to hear it.

When rapport exists, it is easier to connect with the jury and move comfortably through the trial process. A positive relationship established at the beginning of jury selection provides a receptive jury for the balance of the trial.

To help ensure the jury relies on you and is comfortable with you, you need to present yourself as a warm, emotion-filled professional who is trying to give them full and accurate information. Be confident, not pushy, and help them to realize what a patriotic, necessary role they are playing as jurors. Pump them up: You need them to have a sense of pride and independence in the task in which they are about to engage.

Make sure during voir dire and opening statement that they understand how cross-examination can serve as your proof. Jurors sometimes discount or tune out cross-examination, thinking the “main point” of the testimony has already been delivered. Make sure they anticipate cross-examination as where they get the “rest of the story.”

At the end of voir dire, every juror must commit to vote for acquittal if they have any reasonable doubt. A commitment to act is more than a commitment to passively evaluate evidence and vote accordingly. You want each juror so committed that even if the rest of the jurors vote to convict, he or she is pledged to hold firm in the face of the entire group. Therefore, never secure a commitment to act in a routine manner. Make their com­mitment to give you your verdict, if earned, a rock-solid decision on their part.

Opening Statement

If jurors are unsure where you are leading them, they will not trust you and will become defensive. They do not want to feel “tricked” or pressured to embrace the unacceptable. You need to let them know where you are going, how you are going to get there, and why they should follow your lead.

Initially, jurors are “information gatherers.” They need to know, clearly and memorably, how the evidence will support your theory, and why they should want to vote “not guilty.” You need to guide them, using the same themes you want them to re­call during trial. By doing that, you script the language through which they will filter the evidence.

Do you hold onto your secrets hoping to ambush the State, or reveal your secrets and attempt to obtain a commitment to act from the jurors? Unless you can get the prosecutor to leave the courtroom while you engage in voir dire, it is impossible to ob­tain a commitment to act without revealing your theory of the case. The idea that secrecy and surprise will win is almost al­ways flawed. Juries begin making decisions far too early in the process for you to keep the best information for later. Let the jury know early and often that you expect an acquittal, and how you are going to earn and deserve it. They will admire you for your openness and for your willingness to make an honest commitment to them.

You already know what the bad facts are, and you know the jurors are going to learn them. State up front what the bad facts are and that they do not change your theory, and that even with those bad facts you are entitled to an acquittal because of “the rest of the story.” Embrace the ugly facts and show that those facts do not justify a conviction.

Do not over-promise or over-sell. Your client and your witnesses are flawed people, and those are flaws the jury is going to have to accept. If you try to hide those flaws, you will lose cred­ibility when the State inevitably proves them up. If you discuss them with confidence and sympathy, they will accept that those flaws are not grounds for a conviction.

Do not let the prosecution turn the case into an emotional tug-of-war. Share the grief and pain of any victims to minimize any potential sympathy vote. Criticize your client, berate him if necessary, to show that you can condemn his decisions without believing he is guilty in this case.

Let them know what weaknesses to anticipate in the prosecution’s case. You are there to help them understand the issues and evidence. Let them know they might hear the “rest of the story” in your case in chief or during your cross-examination. Anticipate their questions and, where possible, give answers. At this point the jurors are experiencing anxiety and suspense; ease their minds by letting them know what to expect.

Close by letting the jurors know that if they will trust you, they will feel good about their verdict. Let them know you are going to ensure that by the time trial is over, they will have the facts needed to make the right decision, and you and they will leave proud of the justice system and the roles each of you has played after finding your client “not guilty.”

Finally, secure the right to proceed before you close. Make sure they understand what you have told them and are ready for you to move on to the presentation of testimony.

The Evidentiary Phase:

The Importance of Obtaining Permission to Proceed

As testimony begins, consider the opening statements. Are you as confident as you were before? Is there anything you learned that makes you uncomfortable that you must prepare for? You have an opportunity to reconsider what witnesses you will need and adjust course as necessary.

As you question witnesses, make sure the jurors are following along. If the right to proceed has not been established, jurors get left behind. Look for glazed eyes or a confused or absent look. Pause between issues, and glance towards the jurors before beginning a new line of questioning. Make sure the jurors are clear on what has just been discussed before you proceed.

Always make sure that the jury is ready for you to move on to a new issue, and that they understand when you are about to do so. Request permission from the witness (acting as a surrogate for the jury) to move on, or nod toward the jurors to ensure they know you are moving on. By getting the permission of the jury to proceed, you ensure the jury has accepted what you have just presented to them as true and are ready to open their minds to the next issue.

There are four potential outcomes of this segment—two positive, two negative:

1. Closure (positive): You make a recommendation, and the jury accepts the rec­ommendation to act when requested to do so. For example: “Officer, if our jury finds it important to understand the sequence of events clearly, may I ask one summary question?” (What witness will say “no”?)

“Officer Smith, isn’t it true that Mrs. Seymour never said that my client threatened her with a knife until she had some time with her frantic mother, who previously insisted to you that her daughter would never engage in an extortion attempt unless she was in fear for her life?”

Allow a moment to pass before releasing the witness. A combination question reasserts the most important elements of the testimony, while an elongated pause provides the jury time to close the issue before moving on to the next one.

2. Advancement (positive): You have moved forward, but not won yet. At the conclusion of each issue, establish what will take place after the juror accepts that which you need them to accept from the immediate segment. For example:

“Officer, having fully explored her opportunity to discuss the facts with her mother before her statement was taken, I would now like to move to the fingerprint issue. Are you prepared for me to do that?”

That question is asked of the witness while simultaneously glancing at the jury for some sign they are prepared to move forward. You want to make sure that you have moved forward on this issue before you go on to the next one.

3. Stagnation (negative): Stagnation occurs when you have ended testimony on an issue without an agreement to move forward. The jury did not buy what you tried to sell, or for their own reasons, they were not ready for you to move for­ward and may be feeling rushed. If you encounter stagnation, stop what you are doing immediately. You are starting to lose the sale, and if you do not retrace your steps you will assure a loss. The element that is causing stagnation must be essential to your theory of the case, or you would not have wasted time with it. The jury is going to need to accept this element in order to move forward. You are going to need to re-focus. You may need to ask more questions and spell the issue out more plainly, or use a different witness who can establish the issue with more clarity. Consider what the problem is, and how best to communicate that issue to the jury. You need to think hard, but remain calm. You have time. These moments are among the few times at trial process when you are free to ad-lib. If you “cannot get there from here,” you need to find an alternate route.

4. Termination (negative): Termination occurs when the ju­rors simply dig in their heels and refuse to make any further commitment in your favor. The jury tuned you out because you either lost your credibility or failed to give them the evidence they need to acquit. Ignoring the needs of the jurors on an element necessary for acquittal will cause you to encounter termination. Once you have lost the jury this way, it is extremely rare to get them to re-engage with you.

The Presentation Strategy

The presentation you give should be organized, yet flexible and concise enough to adapt to the needs of the jurors. By doing this, you will cover all the evidence you need, regardless of interruptions or anything unexpected. Spend as much time as the jury needs to accept your evidence as to each area of interest.

Review what you need the jury to accept in order to win. These are the facts that prove your theory of the case. Once your theory is proven, each juror is committed to vote for an acquittal. Your objective is an acquittal, and that comes from jurors who feel better about a vote to acquit than a vote to convict.

Avoid too much repetition. You do not want jurors asking themselves: “Why does he say the same thing over and over? How stupid does he think we are? This is among the most common of juror complaints.

Proving the Benefits

This is the “workhorse” of trial. The proof you present during trial convinces the juror that your solution provides the benefits he or she needs. During closing, you need to answer the juror’s (unstated) question: “What does this evidence do to help me decide?

“Presentation Chains” delineate the decision-making process by focusing on the jurors’ expected benefits. A presentation chain consists of several elements:

1. Solution description: Begin your presentation by reiterating the solution you are there to present—your theory of the case. This sets the stage for each theme or fact you use to prove your theory.

2. Specific facts and features: This describes relevant characteristics and merits of your solution that relate to the needs of the jurors. This shows how the overall evidence best fits your theory of the case.

3. Describe the advantage: This is where you provide a description of how each fact contributes to your theory and how it is interwoven with the other facts necessary for your theory of the case.

4. Describe the benefits: Benefits are the reason a juror buys your theory of the case. Benefits are the jurors’ expected emotional satisfaction that the evidence will provide by giving them a sense of certainty in their verdict. These relate to the success criteria established when assessing jurors’ needs. Benefits are the “what’s in it for me?” for the juror.

5. Provide evidence: Outline the specific, focused evidence that your solution delivers the promised benefits. The jury needs to see where they will fit in with your solution. For a lawyer to receive an acquittal, the juror must achieve something for himself or herself. They must be proud of their verdict, be proud of having mastered the evidence and instructions, and feel satisfied that they have done their patriotic duty in acquitting your client.

6. Confirm Acceptance: This is where you need to evaluate how well the jurors have accepted your theory. This has to be done through observing their body language as you walk them through the testimony and watch their reactions. You cannot wait for the verdict to analyze how well they accepted your theory—by then it is too late to respond. You must constantly be watching for signs of acceptance or rejection as the case progresses.

Managing Resistance

Resistance surfaces through the sales process as a natural way to reduce the risk involved in making decisions. The ability to anticipate, identify, analyze, manage, or prevent resistance is a key to successful selling. This requires knowledge of resistance timing and the basic types of resistance. Understanding the elements of resistance is important because you rarely get to ask probing questions of a juror.

The timing of resistance indicates the mental state of the juror. Know where you are in the sales process when the resistance occurs. Pay attention to the jury. When they begin to lose interest—change directions. Abandon what you were doing and move on to something relevant to them. You will not succeed unless you are willing to adapt to a subject the jury finds important. Every juror is different and every trial is different; your need to adapt and respond to juror resistance is a constant.

When you identify juror resistance (through observable actions, inactions, or reactions), take a moment and reorganize your thoughts. Evaluate the importance of the issue you are presenting, and go at it from a different direction by using a dif­ferent witness or through a different pattern of questions if that issue is essential to your theory. If the evidence is not essential to your case, move on to the next issue. You are out to win the war; it is normal to lose insignificant battles along the way.

Jurors will not hear your evidence if you are pursuing a line of questioning in the face of jury resistance. Find another way to get there. The longer you allow resistance to build, the less credible you become as resistance shifts from blocking out that one issue or that one witness to blocking you out.

There are different types of resistance: Depending on the type of resistance you encounter, you may seek to respond differently.

Rejection occurs early in the selling process and is usually emotional in nature. Securing the jury’s attention and getting them interested in listening to you must be done early. If a lawyer is unable to do this, the jury will reject the intrusion until they see a benefit. The benefit they need to see from you is that you will be their most trusted purveyor of valid information during the trial.

The jurors must see you as a candid, open, and honest consultant. When you have a need to keep inadmissible evidence from the jury, do it discretely with private conferences before the bench. Motions in Limine need to cover all possible areas you may wish to keep from the jury. It is critical the jury believes you are providing them with all the accurate and valid relevant information available.

Failure to secure a jury’s attention and get them interested in what you say early in the trial assures you of a loss. Afterwards, jurors explain they never bought into the attorney’s theory of the case. When an attorney loses because of juror inattention, jurors do not mind facing him after trial because they never established an emotional bond with him and have no need to protect his feelings from rejection. When jurors tell you that you did a good job with what little you had to work with, there is a good chance they had tuned out and never even noticed what you were presenting.

Objections to your information typically occur in the middle stages of trial and are usually factual or logical in nature. They reflect doubt about your theory of the case, emotional objections to an acquittal, or concerns about whether your theory of the case conflicts with the rest of the evidence.

It is much easier for a juror to convict than to acquit. Jurors are terrified of placing guilty people on the streets. If your theory does not match the evidence to provide the benefits the jurors need, the verdict will let you know you failed. It is critical that your theory of the case, if believed, be logical and meet the emotional needs of the average citizen.

Stalling sometimes occurs toward the end of the trial process. Stalling is an emotional response to the difficult decision you are asking them to make. During this time the jury is under maximum pressure to make a decision. A stall usually indicates a juror does not have a compelling reason to make a decision or has concerns about the validity of the decision you are asking him to make.

Stalls can result from simple indecision to a deep conflict concerning your recommendation. A juror may even retreat from the decision process altogether. Jurors express a stall by deferring to the majority, or by deferring to authority. By understanding that most juror indecisiveness comes from a stall, you can take steps to minimize the pressure on the jurors by providing them with a socially accepted, compelling reason to vote not guilty.

All of this points to the absolute necessity of having a comprehensive theory for the case. Without a theory, supported by evidence, many jurors will become indecisive at the time when they are under the greatest pressure to make a decision—in the jury room, where you have absolutely no chance to refocus them. You lose.

Closing the Sale

Your goal in closing is to reestablish yourself as a friendly, reliable consultant who has helped them in this process. Your ability to win is directly associated with how much the jurors trust you, how credible they believe you are, and (perhaps to a larger degree than even they realize) whether they want you to win. Be the lawyer they want to see win.

At this point, you have spent days, maybe weeks establishing your credibility. Do not lose it on closing. Make sure your comments are supported by facts and evidence, and tell your entire story. Do not leave unanswered questions hanging.

Let them know your job is both difficult and important. Re­mind them that your client is counting on you in spite of the incredible resources of the State; if the State waives opening argument, let them know that is not fair, even though the law allows them to do so.

This is not the time to be stoic—the jurors need to feel your anxiety over a possible conviction and empathize with you. The State tends to present cases as abstractions and dehumanize defendants: Let them know that you are responsible for a real person’s future, and that this case has frightened you from the start, because you were not sure that you would be able to clearly present all the facts the jury needed to see to make the right decision.

Make your closing memorable by using the same themes that you used throughout trial and that you want to resonate in the jurors’ minds when they deliberate. Show them how your theory is better supported by the facts and that the prosecution has the burden. Reduce stalling by reminding them that if they are not certain what the right verdict is, that uncertainty can be grounds for reasonable doubt.

Assure that jurors feel patriotic and proud about their decision. Voting not guilty is hard: It means saying no to authority figures, and jurors need to be reminded that the law puts them above those authority figures. Even if those authority figures did the right thing based on what they knew at the time, the jury now has the “rest of the story” and the instructions of the Court.

Finally, harmonize the motives of the jurors—reaching a verdict they can be proud of—with your solutions. Ask rhetorical questions and observe signs the jury has accepted your theory of the case. Once they have indicated affirmative acceptance, stop. Thank the jury. You just won your case.

Conclusion

People make decisions for a variety of reasons, often having more to do with emotion than logic. We really never know why we decide what we decide; we just know we use facts to jus­tify—perhaps to rationalize—our decisions. Decision making is an emotion-driven process.

When presenting your case, you must give the jury facts that will help them justify to other people, and themselves, why they did what they did. The decision to acquit must logically flow from your theory of the case, and your theory of the case must be supported by the evidence. But in addition to those facts, there is always an emotional connection with that decision. As a trial lawyer, you must connect with the jury on that emotional level.

Trial lawyers must have ready, quick access to their emotions and be willing to be completely open and emotional before the jury to make that connection. This invites the jury to follow your lead. Do not underestimate the factual part of your case, but you must try your case in an emotionally open manner so you can make the type of connection with the jurors that motivates them to do what you want them to do. They never should feel your hand on their back pushing them. You need to forge an empathic bond with them if you are to win.

Winning a trial occurs when you successfully utilize the solution selling techniques discussed here. Be open and emotional with the jury and present the evidence in an honest, helpful manner that empowers jurors to leave the trial feeling justified in, and proud of, their decision. A jury that feels empowered to acquit, that is given a factually supported case for an acquittal, and that wants to acquit, usually will.

Notes

1. How the jurors view your client is part of this. His appearance must mesh with your theory; e.g., if you need to show your client was taken advantage of, he needs to appear as gullible. His image cannot contradict your theory of the case. However, that is a topic for another article and will not be discussed at length herein.

2. In this context, the client is the jury, not the defendant.