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When jurors zone out: Trying a case to jurors with attention-deficit disorder

Sylvia Hsieh//July 29, 2011//

When jurors zone out: Trying a case to jurors with attention-deficit disorder

Sylvia Hsieh//July 29, 2011//

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If you notice a juror staring off into the vaulted courtroom ceiling during your carefully planned trial, you may have a juror with attention-deficit disorder.

Zoning in and out, difficulty concentrating and getting frustrated easily are some of the symptoms of ADHD (attention deficit hyperactivity disorder) that could derail your trial message.

“I’ve seen it in focus groups. People who have attention-deficit disorder are ready to climb the walls,” said Amy Singer of Trial Consultants Inc. in Gainesville, Fla., who has conducted studies on the issue.

Many lawyers are changing the way they communicate in the courtroom to reach these jurors.

In complex legal cases, jurors with ADHD may get bored quickly, said Dr. Andrew Sheldon, a lawyer, psychotherapist and jury consultant in Atlanta who himself has attention-deficit disorder.

“Impatience becomes an issue in not being willing or not being able to wait while everything gets explained,” Sheldon said.

He said that this can carry over into deliberations where a juror with ADHD may have a tendency to make up his or her mind more quickly and with less information, or may rely on other jurors if he or she missed information during the trial.

In the rapid-fire, hyper-visual, multi-tasking culture we live in, even jurors without ADHD will demand trial evidence packaged in a way they are used to.

Some lawyers have begun to treat all jurors under the age of 30 – some even say under 40 – as essentially having attention-deficit disorder.

“Folks in their 30s are all into, ‘Give it to me now, don’t make me work for it – cue the food, and I’ll swallow it.’ For trial lawyers, it means you not only have to order it, you have to prepare it and feed it to them,” said Ervin A. Gonzalez, a trial attorney who represents plaintiffs in products liability cases.

Spotting the ADHD juror

Trial consultants recommend a few ways to find out if there are jurors with ADHD on your voir dire panel.

One way is to ask.

“It’s a lawyer’s obligation to ask if anyone has a medical condition, including attention-deficit, that doesn’t allow them to fully concentrate, listen, stay involved or focus. … If a juror cannot serve because they cannot focus, they should be excused,” said Gonzalez, a partner at Colson, Hicks, Colson, Cooper, Martinez, Gonzalez, Kalbac & Kane in Coral Gables, Fla.

Asking jurors to reveal their list of medications is more controversial, but some lawyers do it.

Elizabeth Babbitt, a consultant at Litigation Insights in Overland Park, Kan., said that  when allowed to, she asks jurors on the questionnaire what types of medication they are on and to describe any problems, such as language, vision, hearing or psychological issues, that might prevent them from serving as a juror.

With concerns about running afoul of privacy rules under the Health Insurance Portability and Accountability Act (HIPAA), some lawyers stop short of asking about specific medications, and instead ask more generally about whether potential jurors have difficulty focusing.

“What you do is ask, ‘How many of you have any problems with concentration, memory, hearing, vision or anything going on in your life that prevents you from giving this case your full attention?’” said Singer.

Some lawyers use their own observational skills during voir dire to shepherd those with drifting attention spans back to earth.

Spencer Aronfeld of Aronfeld Trial Lawyers in Miami starts with voir dire to grab the panel’s attention early on.

“I try to create a process through which all jurors are engaged. If you start questioning one juror in the back corner, the rest will zone out. If I’m talking to Mrs. Rodriguez about her experience with tampons, Mr. Smith knows he doesn’t need to pay attention. So, I’ll crisscross the room, [which] keeps them engaged and puts them on notice that ‘I better pay attention, or I’ll get embarrassed,’” said Aronfeld, who represents plaintiffs in med-mal cases.

It’s important to realize that a juror with ADHD is not necessarily a bad juror. According to Babbitt, some people with attention-deficit disorder can be “hyperfocused,” are able to see both the minute detail and the big picture, and can be curious, intuitive and very engaged.

Depending on the facts of a case, “it can be good for you to have a juror with attention deficit if it involves something the juror is interested in,” said Babbitt.

Aronfeld says sometimes the decision about whether to bring a case to trial depends on whether the topic can hold the interest of jurors with short attention spans.

In some cases, the facts can’t help but interest. The last case Aronfeld tried involved a diabetic whose penile implant procedure turned gangrenous, ending in a penis amputation.

“There wasn’t a person in the courtroom who wasn’t riveted by that case,” said Aronsfeld.

Making adjustments

Trial lawyers are learning to adjust their message to accommodate jurors who have a waning attention span.

“I am not going to keep a witness on the stand for hours and belabor points. It’s more of an in-and-out presentation. Get to the point very quickly and use a lot of graphics to illustrate points,” said Aronfeld.

The order in which you present evidence is also important.

Sheldon, the jury consultant with attention-deficit disorder, said he does not think in a linear fashion.

“The way I put things together is not A through D. It’s more like A to M to C to X,” he said, adding that jurors with attention-deficit disorder will respond to graphics better than being run over with words.

“The biggest risk is that all the jurors see is your lips moving,” said Singer, who suggests breaking trial themes into individual charts with one concept per chart and leaving a chart up during testimony so that even if a juror stops paying attention, he or she can look up and see the chart with the main point.

She also recommends using visuals early and often.

For example, in opening statements, an attorney should punctuate each of her core arguments with a graphic.

People with attention deficit respond better to certain colors, such as yellow and orange, said Aronfeld, who often blows up a black and white image then adds highlighting in yellows and oranges in real time during trial to keep jurors “constantly engaged.”

“You have to have a very strong trial theme that cries out what your case is about, and the demonstrative aids must be powerful and quick. If it’s more than three seconds into it and they can’t figure it out, [you will lose them. And] once they’re gone, you’re not getting them back,” said Gonzalez.

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