I felt compelled to blog on some potential strategies for the afternoon session. For the past fifteen years, I have watched the jury panel fight their carbohydrates after lunch. We all know how wonderful the food selections are in and around most courthouses. Repeatedly counsel elicits testimony or presents evidence, which lulls the jury to sleep. In some instances, trial teams have no choice because there is a long witnesses or perhaps scheduling issues. I do believe however that many times the sleepy jury problem can be avoided. Seasoned trial teams are so accustomed to the courtroom that they are often immune to the problem. Many do not eat lunch and have borderline embalmed themselves with caffeine.
The jury on the other hand is in no way accustomed to a trial setting. Even though many jurors may have sedentary jobs that do little to prepare them. A trial day can be likened to an eight-hour long movie you may not necessarily be very interested in subjecting yourself too. So what can a trial team do to prevent the jurors from falling asleep after lunch? I will attempt to offer a few examples, which I have seen, work in both the past and the present.
For starters, always try to avoid playing a videotaped deposition after the lunch break. If the video is around thirty minutes or less then it should not be a major issue. Anything longer and you will certainly run the risk of the jury zoning out and not absorbing the testimony. Some may suggest that a motion picture is longer than thirty minutes and people pay attention. My simple retort to that is there are very few (if any) video depositions more interesting than a popcorn-munching movie.
One way to break up the video is to make it interactive with picture in picture exhibits. This way the jury is seeing live annotations, evidence and is not fixated on a talking head. Not a perfect solution (live witness would be the first choice) but it will help keep the sleepy jury interested. If your case has complicated facts and voluminous evidence, an interactive video deposition is necessary rather than a luxury.
Recently I was in a trial where counsel decided to read deposition designations after lunch. This was akin to banging your head against the wall, slowly, until the numbness made the pain go away. In kindergarten, teachers usually read the children a story after lunch for naptime. Do you see where I am going with this? It has the same effect on the jurors who REALLY do not like the story I am guessing. As mentioned a trial team may indeed have scheduling issues and no choice. The reading of the depositions may have to be conducted after the lunch break. What can be done to make it more interesting and easy to absorb?
The very simple answer is trial presentation software. The designations should be made into clips, which can be shown to the jury on a large screen. Most people recall less of what they hear and much more of what they both see and hear. Using this method, everyone can follow along and there is no guessing as to what was potentially said. Furthermore, if you misspeak there is less chance opposing counsel will make an objection. Ok, maybe I am being too ambitious and there is still a chance there may be an objection. However, the jury is reading along so counsel cannot suggest you were trying to mislead them.
This strategy of using trial presentation software throughout the trial will assist the jury tremendously. I have never been involved in a case where the jury said, “You know that digital presentation really made it harder for me to learn”. If the trial team’s goal is not to place the jury into a sleep induced coma then trial technology is a necessary tool. Being stuck in a courtroom with no clock, shaded windows, uncomfortable chairs and a belly full of lunch is hard on the average person. Then add complicated (or boring) testimony to the mix and you may have an information absorbing disaster on your hands.
A trial team should make the presentation of evidence as interesting as possible. A jury that is paying attention is a jury that may be deciding the facts in your favor. Do not let lunch and poor visual communication become an obstacle in your case. Instead keep the jury involved with your visual aids and enthusiasm throughout the day. They really do want to pay attention during the afternoon session. Trial teams just need to give the jury ever tool possible to assist with that goal.