What if jurors don’t make a decision at one specific moment, but instead develop their judgment continuously throughout the trial? In this episode, Kristi explores neuroscientist Thomas James’s theoretical framework for decision-making and considers what it could mean for trial attorneys. She walks through a jury deliberation example and offers three practical considerations for thinking about communication as part of an ongoing decision-making process.

Then, in the Communication Tip, Kristi looks back at the teachers who made her love learning and identifies one thing they had in common: they communicated genuine curiosity and enthusiasm. She explains how attorneys can use a subtle lift in pitch—what she calls “middle voice”—to bring curiosity and interest into even the most mundane teaching sections of a trial.

LISTEN HERE...

Key Takeaway

The judgment may be developing all along. Instead of thinking about persuasion as something that happens primarily in closing argument, consider how every interaction with the jury contributes to the decision-making process. And when you're teaching complicated or tedious information, use your voice to communicate, “This is interesting. Pay attention.”

Favorite Moment

“Jurors aren't necessarily information processors who sit quietly, take everything in, weigh it all, and then—at some identifiable moment—push the button marked DECIDE.”

Links & Resources

Tom James, neuroscientist from Indiana University - https://www.sciencealert.com/a-neuroscientist-says-your-brain-may-not-actually-make-decisions

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Want to make your courtroom communication more engaging without becoming performative? Book a free Vocal Snapshot with Kristi to identify the vocal habits that may be affecting your ability to keep jurors listening, learning, and engaged.

And, as always, keep fostering your voice.

TRANSCRIPT:

Helloooo!!! Hello Foster Fam! Today, we're taking a look at how decisions are made, and how to pique curiosity through your nonverbal communication, so, let's just get started.

When it come to decision making, I think we tend to think of it as a pretty straightforward, linear process.

You take in information. You think about it. You weigh your options. You make a decision. And then you act on that decision. It’s basically: Information. → Thinking. → Decision. → Action.

I think that's a pretty intuitive way to think about what happens when a juror decides a case, right?. They hear the evidence. They listen to the arguments. They go into the deliberation room. They weigh everything they've heard. And at some point, they make a decision about liability, damages, or whatever questions are before them.

So, I found it really intriguing when i read about a neuroscientist who is kind of challenging that traditional way of thinking about decisions and how decisions are made.

Thomas James, is a neuroscientist at Indiana University, and he recently proposed a different, theoretical, framework for understanding the decision-making process. And I just want to be really clear, and say again, that his proposal is theoretical at this point. No research has been done to prove that the traditional model is wrong. This is just his proposed way of thinking about what's actually happening in the brain, and hopefully, it will get tested at some point.

So, why should we think about it and discuss it then? It's good to challenge our deductive skills and to trace through-lines, just as a brain exercise. And this particular theory raises, I think, an interesting question for anyone who works with jurors: What if making a decision isn't a single moment, but an ongoing process? What if there's not a specific moment when the brain finishes processing the information, makes a decision, and then acts on it?

This is what James proposes. He proposes that our perception, our cognition, and action we take may be part of a continuous process instead of a singular event. We call it a "decision," but it doesn't happen at A moment in time, but over many, in fact, an infinite number of moments.

This actually makes a lot of sense to me when I think about a jury deliberation.

Like, imagine we're sitting in the deliberation room.

The jury has just finished a long trial. They're taking their first vote.

Someone says: "I just don't think we have enough evidence."

Another juror responds with:

"But what about the email? The defendant admitted they knew about the problem before the accident."

So, the first juror says:

"I remember the email, but I thought the witness explained that."

Then, someone else chimes in:

"No, I don't think that's what she said. I think she said they knew there had been complaints, but they didn't know this particular problem existed."

Now, the jury pulls out the exhibit. They read the email again. Someone points out a particular sentence. Another juror says: "Oh, okay. I hadn't remembered that part." And the conversation continues. And minds are changed as they keep talking.

So, the first juror, who was maybe going to originally vote for the defense, they probablly don't suddenly have a dramatic moment where they think, Oh! I've changed my mind! BUT...their assessment of the situation may be shifting, gradually, as the conversation continues to unfold.

They may have started from:

"I don't think there's enough evidence."

but shifted to:

"I'm not sure."

Then:

"I can see why you're interpreting the email that way."

And then eventually:

"Okay. I'm with you."

So WHEN did that juror make the decision? Was it when they changed their vote? Was it when they reread the email? Was it when another juror explained the evidence? Or was the decision actually emerging throughout that entire interaction?

That's the interesting possibility that Thomas James raises with this new framework.

The verdict isn't necessarily something that twelve people independently figure out and then bring into the deliberation room. The judgment can continue to develop inside the deliberation itself.

And if we take that possibility seriously, then I want to give three useful considerations for attorneys.

Number one: Don't think of persuasion as something that happens only at the end.

Closing argument obviously matters. But if a juror's judgment is developing continuously, then every communication with that juror is part of that process.

Your opening matters. The way you introduce a witness matters. The way you walk through an exhibit matters. The questions you ask on cross-examination matter. And the way you respond when something doesn't go according to plan matters.

You're not giving the jury information to store in their brains for them to evaluate later. You're participating in an active, ongoing process of understanding.

Two: Think about how each piece of communication contributes to what comes next.

If jurors are continually updating their understanding, then your evidence and your arguments don't exist in isolation.

What you say at 10 a.m. can affect how they interpret what they hear at 2 p.m. And that's why I'm a BIG ADVOCATE for being really patient at the start of things and front-loading your teaching section. Teach them everything they'll need to know, so that as you tell the story of your case, they'll have the foundational information for that story to have context and have more depth of meaning as things progress.

What a witness says on Monday can affect how a juror hears another witness on Thursday. What you've established throughout the trial, what you've said along the way, can affect how a juror interprets your closing argument, what you say at the end of trial.

So instead of only asking: "Is this a good piece of evidence?" or "Is this a good question?" ALSO ask: "What does this help the juror understand, and what does it prepare them to understand next, or understand later?"

And then number three: Remember that the decision-making process continues after you leave the courtroom.

And this may be the most important consideration.

When you finish your closing argument, you haven't finished communicating with the jury. You've finished communicating directly with the jury, but then they go into that deliberation room and continue the process and your communication continues to influence the deliberation indirectly.

They'll talk about your witnesses. They'll look at your exhibits. They'll repeat things you said. They'll challenge each other's interpretations. They'll remember things differently. And they'll try to make sense of the whole experience.

Of course, you can't control that conversation. But you have influence about what they're bringing into it.

So rather than thinking of your job as simply getting twelve people to reach a particular decision, it may be more useful to think of your job as contributing to the process through which that decision will eventually emerge.

So, even though this neuroscience framework is still an unproven theory, I still think it's a useful challenge to a very simple picture of decision-making. It's a more dynamic and circular process than we may think it is.

Jurors aren't necessarily information processors who sit quietly, take everything in, weigh it all, and then—at some identifiable moment—push the button marked DECIDE.

The judgment may be developing all along. And if that's true, then every moment you spend communicating with a jury is part of the decision-making process.

What do you think? Does this theory have legs, so to speak? Let me know what you think and if you'll consider this new theory about decision making when you're structuring your case strategy. Send me an email at [email protected].

—BREAK—

With the school year well underway, I want to just have you reflect for a minute on some of your favorite classes and favorite teachers. Think back...elementary school, middle school, high school, college, grad school, law school. What are the classes and the teachers that stand out to you? And, think specifically about the classes you loved or teachers that really inspired you. We all have some class and teacher horror stories that I'm sure we could tell stories about, but for today, just think on the good memories.

Of course, so many of my school year memories revolve around my choir experiences. Those were, of course, foundational to my life and career. Beyond choir though, the classes that come immediately to mind are Biology with Mr. Stewart & English with Mr. Riggin in my junior year of highschool, Physiology in my senior year, and Foundations of Christian Thought as a freshman in my undergrad years.

Why do THESE classes & teachers stand out to me? Ask yourself that too? Just right now, in your minds eye, when you think of those classes and teachers, WHY do they make your Mr. Rushmore list?

Man, I STILL think about that plant collection unit we did in Biology and, nearly every week, I wish I had that curriculum still so I could replicate it, build my own plant press again, some...34 years later!

WHY?!

For me, each of these teachers, these educators, approached their content with such enthusiasm that it was contagious to the students. I was a good student, and as I've said several times on this podcast, I just really enjoy learning, but I wasn't ever naturally inclined towards sciences and philosophy. But these teachers piqued my curiosity and inspired me.

But...HOW?

They infused their lectures with a tone and a presence that said "Isn't that interesting?", without actually saying it. Their teaching was STEEPED in the subtext of "I thought this was so interesting and you're going to think so too, I'm eager to share it with you."

You, as an attorney, are holding onto a LOT of details in your cases. And these details have to get shared. They're critical points and nuances that can, potentially, really affect jurors' understanding of the situation and can alter how they decide the verdict. So you HAVE to tell them the details. But...let's be honest...sometimes they're just tedious and not all that inspiring in and of themselves.

So, a quick and easy "trick" is to just raise your pitch slightly. Just bring your words into what i call "middle voice." It's the voicing of curiosity, the voicing of interest. It says "now THIS is interesting, don't you think?"

And we're not talking long term. You don't want to live in this vocal space. Because then you create a different pattern and you're stuck again. Isn't there a phrase, "Variety is the spice of life?" That's what I'm pitching to you here. Small lifts help mark transitions, help bring certain words into emphasis, and all of these easy quirks help to keep jurors mentally engaged.

So, play around with it a little bit. You have to practice it. Practice adding a little spark of "curiosity" into some of your most mundane teaching sections. And until next time...keep fostering your voice.