December 2012 Bar Bulletin
Appealing to Jurors' Values and Principles
By Glenn Kuper and Theodore Prosise
Most jurors enter a trial with very little expertise on the particular topic at issue. They are unfamiliar with such legal concepts as "burden of proof," "standard of care" or "proximate cause." However, all jurors have a sense of what is important to them - the things they value.
When it is time for jurors to deliberate and render a verdict, these values play a pivotal role in determining what they discuss, how they discuss it and ultimately how they vote. Therefore, it is critical that attorneys go beyond consideration of the evidence, and identify and appeal to the values likely to converge with those held by the jury.
Values define preferred ways of acting or preferred end states. The use of values in "public argument" settings is both highly prevalent and especially effective. Public or "general" argumentation is distinct from specialized argumentation because it "does not require special knowledge or rules for the participants."1 Instead, it is argument that is directed toward typical members of the public who are not well versed on the standards of a specific field.
Arguments made to a jury are more consistent with those in a "public" argument setting. Although jurors are instructed on the law and are expected to follow these instructions when making a decision, it is unlikely that the brief directions they are given are enough to make jurors legal experts. Arguments made in a summary judgment motion before a judge would be considered more "specialized," while arguments made in trial to non-expert jurors are "general."
Successful public arguments "must conform to what most people in the society regard as factual, reasonable, and linked to acceptable social values."2 Audience members are attracted to appeals that bolster their beliefs. These underlying beliefs provide an efficient route for judgment if other routes seem more difficult.
When an audience is confused or unable to understand the complexities of specialized argument, jurors will default to standards they can easily grasp. They will use the values they hold as a way of judging whose actions were appropriate.
There are multiple ways to use values when presenting a case and it is not difficult to weave them into a case narrative. The simplest way to use value appeals is as the basis for a particular goal that was being pursued by an individual or organization.
Jurors typically want to know why someone engaged in a particular behavior. They do not just want to know what was done, but they want to know why someone made the choices they did. Jurors want to understand what is "behind" the action.
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