Archive for September, 2009
Common wisdom would say you should always raise issues of racial bias if your client is a member of a minority group. Common wisdom isn’t always right. When walking through the minefield of racial issues you need uncommon insight.
Here’s what we know: Racism is alive and kicking in the US of A. Based on research since the civil rights movement in the 1960’s and 1970’s and the cultural awareness curricula in the 1980’s, racism has not dissipated. Instead, it has morphed into a more insidious form, cleverly called ‘modern racism’.
According to those who write about ‘modern racism’, most majority group members ‘know’ they are not supposed to be biased and they work to appear non-biased. Most rely on cues from the environment to alert them to the expectation that they should behave in a race-neutral fashion. When these cues do not appear, however, majority group members (in most American situations these are also known as ‘white people’, although in social environments dominated by African American, Asian, or Hispanic groups, the dynamic is the same), they will automatically and habitually make decisions that are driven by deep-seated biases.
What this means for you is this: You should overtly raise the race issue when race is not salient to the story itself, and not do so when race is central to your case facts. Granted, this does not make sense. Neither does racism. Racism is driven by deep-seated emotional experiences that are often not accessible to us on a conscious level. Yet, they control our behavior. The heart of the reasoning is that if the racial elements are self-obvious, you don’t need to put the jury on notice to consider it. But if it is less obvious, or even irrelevant, the jury needs to have their awareness of potential bias raised. It has to be done in a non-manipulative way and without being heavy handed, but it has to be done.
We worked on a case where the plaintiffs—a professional couple—had been horribly injured through no personal fault in an airline crash. It was a miracle they were alive. The defendant had acknowledged liability, and all that was left to determine was the amount of the damages. The case was presented to a focus group and the empathy was palpable in the room. These people would never be the same. Their injuries were explained, medical expenses and lost income identified and dismal future prognosis for physical and emotional recovery foretold. Focus group members were angry. Then the day in the life video came up and there was a stunned silence in the room: the plaintiffs were African American! They were also educated, upper middle class, attractive, church-going, upwardly mobile, and well-spoken. These were the type-A workaholics of the American success story, but they were also black. Nothing had changed in their story except that earlier, focus group members had pictured them as like themselves (i.e., white). During deliberations, multiple ‘reasons’ were given for the low awards proffered (most not even covering medical bills).
“They should not be asking for money. They should be on their knees thanking God they’re alive!”
“My mother was injured in a mass transit accident & she never asked for money. I just want to punish them for asking for money.”
“I bet they were having fun getting bumped up to first class before all this happened.”
Race was irrelevant to the case facts. Focus group members had no external cue to tell them to behave in an unbiased fashion. Therefore they automatically extended biased reactions in the guise of non-racist rationales.
In this sort of case, if you are representing the plaintiff, you want to raise the issue of race. Alert white jurors to the expectation that they will fairly consider damages and awards. If race is not mentioned, it will subtly affect the deliberations, even though it will never be mentioned by the jury.
Alternatively, if you are representing the defense, show lots of pictures but say nothing. If the plaintiff attorney does not know to raise the race card, jurors will make their decisions based on prejudices and misconceptions.
Being a litigation consultant can be disheartening at times like this focus group. We were ashamed at the state of our society after this group, and disheartened that as a nation we had not grown more since my Dad marched in Selma, Alabama and we all should have learned better than this. But here we had a situation in which settlement of a case for less than its objective value seemed to make sense. In the wake of these findings, we did the research needed to understand why it happened, and to develop strategies for our clients (who, in this example, were the plaintiffs).
We have undertaken research for our own edification as well as the benefit of our clients numerous times, and after our clients have benefited from the most current analysis, we make these papers available to you at no charge. If you’d like to read the lengthy article we wrote reviewing racial bias at trial, register at our website and download “Juries and Racism: A Failure of Justice“. And scan the other offerings. These are papers that were written for private clients, or for the ABA, AAJ, ACTL, and other CLE sponsors.
Two new research studies highlight the potential complexity and also the simplicity of the witness preparation process. What is fascinating about these studies is that they approach the same problem from such different different perspectives. The challenge is in knowing when you may need to use which perspective.
Let’s say your witness is not confident and you need him or her to project an aura of confidence to enhance credibility, likability, and believability. The witness may seem nervous, fearful, or even guilty. What you do depends on your assessment of what results in your witness’ lack of confidence.
Intervention 1: You assess that your witness needs to “feel” or “see themselves” as more powerful. The first new study would say you can help your witness project more confidence by simply having them sit up straight. That’s simple, isn’t it? It can’t be right—it’s too simple, virtually dumb. But the power isn’t merely appearance—confident posture can trick our brain into thinking we are more confident and thus have impact on how we present ourselves. This approach assumes the problem is a simple matter of slightly modifying self-presentation.
Intervention 2: You assess that the witness is deeply shamed about their role in the case, the decisions they made, or how they behaved. Their reaction may be to respond to examination with anger, obfuscation, or guilty ‘deer-in-the-headlights’ paralysis. The second study shows how people who are paralyzed by shame tend to internalize and over-personalize the situation. This is a much more complex issue, but assist the witness to identify external factors that contributed to their decision. This tactic can help the witness shift their perspective from being a “bad person” to being someone who has perhaps done something bad or wrong due to external influences. They can’t run away from their conduct, but they also need to gain some perspective on their role.
We see shame-based responses in witnesses with no reason to be ashamed—from medical malpractice to commercial cases. It’s not the type of case that matters. It’s the type of personal reaction your witness has to a complex combination of case facts and personal idiosyncrasies. The best possible approach may be a combination of the two interventions: address the shame and inoculate the witness against the shame. Then tell them to sit up straight!
We see this routinely on witness evaluation forms and we hear it in mock jury deliberations. Perhaps the most overt misinterpretation of intuition came almost ten years ago when we were doing a focus group and jurors didn’t like the plaintiff. One of the attorneys (who had done some community theater work) wanted to come out and “be” the plaintiff. She did. She appealed to the jurors and stated her case. She returned to behind the observation mirror. As the door closed behind her, a juror spat out “I thought so before I ever saw her in person but now I know for sure! That woman is on drugs.” She was convinced and she convinced some of the other jurors. Intuition can be a powerful thing.
As a further note on that embarrassing event, I will say that we urged our clients to use deposition excerpts and not live testimony with surrogate actors (even before this). Jurors feel so strongly about the role of character, the power is truly in the messenger as much as the message. But boy, that attorney’s law partners are still telling stories about that mock trial. She will never live it down.
Recently, the Jaycee Dugard case was cracked by a police officer who credited “police intuition” for her suspicion, followed up by investigation and the eventual liberation of an 18 year kidnapping victim of a convicted pedophile. Intuition is powerful. And sometimes it’s right. And other times it is horribly wrong. One recent Texas case garnering a lot of attention across the country seemed to combine intuition with facts in a way that may have resulted in the execution of an innocent man. Intuition can close our eyes to the facts in front of us. In focus groups and mock trials we have tested juror reactions to witness testimony excerpts that run 30 minutes and longer and compared them to reactions to the same witnesses after the first 8 minutes. The scores are nearly identical. What jurors conclude about character, likeability, and trustworthiness crystallizes within the first few minutes. We see things how we want to see them. We make the story make sense.
How can we minimize the role of mistaken intuition in juror decision-making?
- Decide in advance how intuition is likely to affect your case. Do you want snap judgment or considered opinions?
- If a key witness or party isn’t reliably likeable, have lead-in witnesses provide context for the key witness’s quirkiness that makes it more palatable.
- If there are assumptions (aka inaccurate intuitions) that mock jurors attribute to your case or witnesses, establish an identity for your witnesses that accommodates the image and makes it more tolerable.
- When jurors don’t have an explanation for something, they are free to fill in the gaps with incredible flights of fancy. Ensure that your case makes sense and leaves no holes or questions for the jury to fill in without you.
Intuition may or not be a scary thing, but it is very powerful. Intuitive errors flourish when fueled by incomplete or distorted information given to us. Fill in the blanks. Clear up distortions. And then trust the process.
Many from the Baby Boomer generation recall Sgt. Joe Friday’s words on the TV show Dragnet: “Just the facts, ma’am”. And we can’t count the number of times we’ve heard from attorneys that their “facts are persuasive” and they just need to “tell jurors the facts”. It sounds good. Unfortunately, it often isn’t enough.
If you’ve been reading our blawg for awhile, you may have picked up that we are firm believers in using values and beliefs that resonate with jurors to tell your story. Yes, facts are important. The problem is that your facts may be heard differently by jurors than you intend.
Jurors may hear the facts and attribute motivations to your client that exist nowhere but in jurors’ minds. It can be a scary thing for litigators. When jurors in mock trials begin to discuss their theories of conspiracy or collusion based in intuition and hunches—litigators look distinctly green in the dim lighting of the observation room.
Simple Jury Persuasion Rule 2: Facts do not believers make
Many of us have seen the famous Clarence Darrow article on jury selection by identification of religious affiliation, gender and/or ethnicity. This sample quote is but one of what we would now consider egregious assumptions:
“Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.”.
Clarence Darrow was a brilliant attorney. But (ahem) some of his ideas translate over the years better than others. And one of them beautifully illustrates the perspective behind our Simple Jury Persuasion Rule 2:
“Don’t merely give the jury reasons to acquit your client. Make them want to acquit him (sic) and they will find the reasons.”