Saturday, October 27, 2018
This is a new article by Professor Danielle R. Cover (Wyoming) that discusses the notion that if trial attorneys see jurors through the lens of adult learning theory, it may enhance their ability to effectively persuade them. Professor Cover's article is called Of Courtrooms & Classrooms and can be found at 27 B.U. Pub. Int. L.J. 291 (2018). From the introduction:
Trial planning and preparation focus on the creation of a story the fact-finder can follow throughout the course of the trial. Storytelling and narrative are essential to capturing the fact finders' attention and ultimately convincing them that one side should prevail over the other. Trial presentation through storytelling is about persuasion--it is the essence of the trial process to persuade the fact-finder which party should win. Done well, the story an attorney tells over the course of the trial draws the juror in, helps her to understand the client, and convinces her to decide in the client's favor. Yet, even with the benefit of compellingly told stories, a courtroom can be an inherently challenging environment for a jury-- the days can be long and filled with unfamiliar concepts and emotionally draining details. In the face of such considerations, trial attorneys must find ways to influence how a juror hears and accepts the information presented over the course of a trial.Throughout the 1950s and 1960s, comprehensive juror studies debunked the philosophical ideal that juries are unbiased, neutral decision-makers. Not surprisingly, the research demonstrated that jurors bear the same characteristics as the general population. Not only do jurors have the same capacity for listening and comprehending new information as their neighbors on the street, they also color their decision-making with their own experiences, beliefs, and biases.In the same way that jurors reflect the characteristics of the general population, they also bear striking similarities to learners in traditional lecture-based teaching environments. Broadly conceived, the juror experience looks very much like a classroom learning experience. Teachers, in the form of lawyers and judges, present carefully prepared information through witnesses and other evidence to influence perception, create empathy, and impact the eventual outcome of the jurors' understanding of the case. The courtroom experience is a mirror of a classroom community, where in the microcosm of a specific listening environment there are shared moments of learning filtered by individual beliefs, biases, and backgrounds.This Paper argues that if trial practitioners view jurors from the perspective of adult learners, not simply passive listeners, attorneys may be able to increase the persuasive value of their message. Part I introduces the reader to andragogical theory as a teaching and learning theory. Part II draws the parallels between a courtroom during a jury trial and the more traditional lecture-based classroom. Part III provides a brief discussion of the similarities and differences between jurors and students in a classroom setting. This section illustrates the connection between the similar traits and similar responsibilities of students and jurors in their respective learning environments. Part IV does the same for the lawyer and the classroom teacher. Finally, Part V initiates the discussion of how persuasion in a trial-based setting can be served by approaching the courtroom like a classroom. This section introduces Jack Mezirow's theory of the disorienting moment and discusses how attorneys might use the disorienting moment to incorporate some andragogical principles into trial planning.
Throughout, this Paper offers a framework for systematically exploring how adult learning theory might influence trial practice. Attorneys who approach their trial preparation from an adult learning perspective may be able to create more desirable and understandable learning experiences that could affect how a jury decides a case.