"The Psychology of Persuading Jurors in the TikTok Era"

 Here's a little something that my daughter (and I) wrote:

In 1924, two wealthy University of Chicago students, Nathan Leopold and Richard Loeb, thought they were so smart that they could commit the perfect, unsolvable crime. So they lured a 14-year-old boy into their car, killed him, and then sent a $10,000 demand letter to the boy’s family. Before the boy’s family could pay the ransom, police found the body.

Far from committing the perfect crime, Leopold left his glasses at the scene, and police quickly traced the glasses to his optometrist. The prosecutors sought the death penalty for the boys, who hired Clarence Darrow—the greatest criminal lawyer of his day—in a bid for their lives. It was the trial of the century (before Darrow’s next trial, the Scopes Monkey trial).

After three months of trial, the courtroom was sweltering the day that Darrow delivered his closing argument. He spoke for 12 hours. That’s not a typo. Twelve hours.

I have friends that can’t even sit through a two-hour movie.

I’m almost 18 years old, and what that means is that my generation and I soon will be sitting on juries. That may scare many of you trial lawyers, but you are going to have to figure out a way to reach the minds of people who are used to absorbing information from 30-second bites on TikTok.

So here’s some advice:

1. Keep it moving. I understand that you lawyers think that every document is a critical piece of evidence. And that jurors will be able to follow the excruciating detail in every contract.  But trust me, you are much better off just making the point and moving on. Don’t waste time with a long lead up. Make your point and get out of there.
2. Be passionate. There’s nothing worse than watching someone speak who doesn’t feel some passion for what they are saying. I can sit through calculus—yes, calculus—because my teacher makes it fun and interesting. And trust me, I’m not otherwise that into the subject matter. If you don’t believe in what you’re saying, the jury isn’t going to be either.
3. Keep it simple. I didn’t include the last S of K.I.S.S. (look it up) because that’s just rude. But this one’s obvious, right? If you can’t explain it quickly and easily, then you are going to lose the jury. Analogies help. Think about the psychology of the people sitting in your jury box, and try to appeal to them.
4. Don’t read. Bueller, Bueller. If you are just reading, you can expect your audience to disengage and stop listening. This point relates to points 2 and 3 above. If you are passionate and keeping it simple, you won’t need to read. Speak from the heart (and from an outline, if necessary).
5. Use visuals. Us young people need to see, not just hear. So please use visuals. This does not mean putting a bunch of words or your outline on PowerPoint slides. Death by PowerPoint is real. The visuals need to be engaging and have a point. My dad likes starting his opening statements with a picture of his client and the family. He may not even mention the picture while speaking, but it’s up there. And jurors see it and understand that it’s a real person with a real family, not just “the defendant” as the prosecutor just said over and over. Again, play to the psychology of your jurors.
6. Make your argument unique. There is a reason everyone binge watches Legally Blonde.  Keeping the defense witty, sharp, and “fun” to listen to is crucial. “What, like it’s hard?”

Darrow saved the lives of Leopold and Loeb with that long closing argument. I’m sure it was perfect for jurors in the 1920s. In fact, Darrow was credited for winning a case with unwinnable facts. That said, if he went on for that long today, the jurors may have saved his clients, but they would be thinking about sending him to Old Sparky!

David Oscar Markus is a partner at Markus/Moss. Follow him @domarkus. Kate Emily Markus is in her senior year at Palmetto Senior High School. Follow her @kate_markus.

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