No one ever sold an idea by boring the audience. Our most important product is human attention. Without the attention of the jurors, your message is lost. A good part of our art is gaining attention and keeping it. No juror wants to get trapped in a jargon-filled jungle, forced to listen to self-inflated arrogant egotists, droning on in mind-numbing monologues, especially when they were dragooned into a non-paying job.

We are taking some of the juror’s most precious commodity: his time. So ask yourself — are they getting what they paid for? If you want to get it — along with his attention — and keep it, you have to give him a reason for giving it to you. His attention is a gift to you, so use it wisely. Either it can be from his implicit confidence that anything you say is important — and few trial lawyers are in a position to command this kind of respect — or his speedy recognition that what you are saying is worth listening to.

We all know that jurors’ minds can wander. Usually after lunch jurors mentally zone out and their attention wanders away from the courthouse into more personally interesting things like doing the laundry, buying a new car, or fantasizing about Pamela Anderson. I like to keep in mind this bit from Ben Stein in Ferris Bueller’s Day off.

Here are actual excerpts from two newspaper articles about jurors. They are self-explanatory:

May 29, 2009

Bored Juror Goes Missing

A juror in Oregon refuses to return to hear the remainder of a trial because he ‘just can’t take it any more’

Some trials are sensational, but jurors cannot always rely on getting a stimulating case to hear. Grant Faber, a juror in Oregon, recently left the case he was hearing at lunch time and did not go back in the afternoon because, as he told police when they later apprehended him, he was “extremely bored” in court.

Tedium, though, is not a recognized excuse for abandoning jury duty; Faber is now facing court again, this time as the defendant in a contempt of court case. In an interview with police that had been dispatched with an arrest warrant from the judge, Faber said he found the proceedings at Washington County courthouse so dull that he “just couldn’t take it any more.” Assuming he finds his own trial a sufficiently interesting drama to attend, the proceedings will begin next month.

CHICAGO – They appeared to doze. They stared at the ceiling. They doodled in notebooks, picked at their fingernails, played with their pens.

By National Post June 27, 2007

CHICAGO – They appeared to doze. They stared at the ceiling. They doodled in notebooks, picked at their fingernails, played with their pens.

There is no doubt that during the three months of Conrad Black’s criminal trial, at times the 16-member jury was bored silly.

And at times, their pinched expressions suggested they were having trouble following the case as lawyers flashed document after document at them on the courtroom projector. At times, the lawyers did not even bother to explain what the documents were or where they came from.

Lawyers for both sides spent days chasing witnesses down esoteric paths of questioning about accounting principles, proxy statements and the finer points of non-compete agreements.

And I recently read about an Australian drug conspiracy trial had been going for three months, with more than 100 witnesses having already testified, at an estimated cost of nearly $1 million U.S. dollars, and the trial judge declared a mistrial because five jurors admitted they were playing Sudoku instead of listening to the evidence. The responsibility for that stands squarely on the shoulders of the trial lawyers.

In fact, there is a word for this: sitzfleisch. The ability to sit through or tolerate something boring.

You have their attention for 3 minutes at most because they are thinking this is new and interesting. After that, they start thinking about other things more interesting to them. In our modern world there is a lot of competition for attention. We are constantly bombarded with a deluge of communication: emails, voicemails, snail mail, banner ads, billboards, books, presentations, magazines, notes, iPhone notifications, instant messages, and texts. All these messages have one aspect in common; it allows them to control the information they receive. In court, they are forced to sit quietly in the jury box and listen to us.

For hundreds of years, lawyers presenting cases in court used solely verbal messages to explain their ideas. But the days when juries could listen to Clarence Darrow arguing for 12 hours over three days are long gone. Our jurors are used to getting information through quick TV bites. They are dazzled by the brilliant graphics of CSI. They are addicted to the tools of modern advertising and television. They multitask by using Twitter, Facebook, e-mail, YouTube, flashy websites, mobile phones full of innovative graphics. It’s our job to get the jurors’ attention and get them to stop thinking of their e-mail, text messages, and tweets.

Part of the problem is that the listener thinks six times faster than we can speak. We need to create enough interest in our message to prevent their mental recess. Variety is the key. Slow down, speed up. Perhaps you need to interest them with the story of the case, good character descriptions, and attention-grabbing graphics. Our arsenals are full of tools to do this.

It’s commonly said that, “Knowledge is power,” but this is only a partial truth. All the knowledge in the world benefits little unless it is communicated; otherwise it dies with the one knowing.

COMMUNICATION is power.

In the end, jurors are persuaded not by what we say, but by what they understand.