ABA Journal Blawg 100!
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Archive for November, 2009
Case Strategy Tip: Do you want your jury to think about their verdict or not?
This is really not a facetious question. Depending on your case facts and which side you are representing (plaintiff, prosecution, or defense)—you will do better to craft a case story that will either carefully think through the evidence or not think carefully and rely instead on pre-existing attitudes.
Jurors that carefully think through the evidence are generally highly motivated and become personally involved in the decision-making process. These jurors will engage in a more thoughtful and systematic review of the evidence and make their decisions based upon that.
Conversely, jurors that are not highly motivated and do not find case issues personally involving will sit back and use their own pre-existing attitudes and biases or use a ‘consensus equals correct’ model and therefore agree with the majority of other jurors (Wood 2000).
There will be times when you don’t want your jurors to think carefully—but rather, to simply go with their gut (i.e., their pre-existing beliefs) and make their decisions based on stereotypes. While this is often not a politically correct tactic, it is often a winning one.
To increase the likelihood that your jurors will not think carefully, try the following:
Suggest a ‘common sense’ approach to verdict-finding—jurors are more likely to gravitate to positions for which they can easily generate supportive agreements and to reject positions where they cannot easily generate those agreements
- Use familiar sayings (i.e., clichés) that provide cues to agreement
- “The apple doesn’t fall too far from the tree” to discredit by implying similarity between parents with poor histories and the defendant or plaintiff
- “Corporate misconduct” to evoke automatic negative reactions to corporate defendants
- “Money won’t bring their loved one back” to decrease tendencies to award large amounts
Reference unbiased, expert sources or, even better, sources with an apparent allegiance to the opposition
- “The Surgeon General says” or “Dr. Famous Expert says”
- “What is interesting is that the plaintiff’s own expert says…”
Suggest a ‘common sense’ approach to verdict-finding—jurors are more likely to gravitate to positions for which they can easily generate supportive agreements and to reject positions where they cannot easily generate those agreements
- “It just makes sense that the nurses would follow the same procedures they always use—just because they were so busy taking care of Mr. X and didn’t write it down doesn’t mean it wasn’t done…”
- “How much of a coincidence would it take and how many of these witnesses who have never met would have to be working together to make the defense story hold water? Let’s be reasonable…”
Suppose, however, you’re on the other side of the fence and you do want your jurors to think carefully, to process and sift through the evidence, and truly examine the facts as they come to a decision. What can you do? Social science research again provides multiple strategies for you:
Frame your messages in an unexpected format
- “Truth can be stranger than fiction…”
- “If only this hadn’t happened. But sometimes bad things do happen, sometimes they just do…”
Increase the self-relevance of your messages for jurors
- “This corporation is based here in our town. And how they do business effects all of us.”
- “Mr. Plaintiff/Defendant is/was a hard-working man with a family who loves/loved him. He got up every day just like all of us do…”
Use phrases that ambiguously signal broader values (e.g., “family values”)
- “This case isn’t just about Mrs. X—it’s really about being a mother and about being the kind of mother who doesn’t accept bad behavior from her children or toward her children. This is a case about the kind of mother we’d all be fortunate to have in our corner.”
- “This community expects better from our business owners. This community has shared values that say businesses should treat their customers fairly and that they should provide good service in return for payment.”
Overall, as part of your case strategy, you want to be thinking about whether you want your jurors to be thinking or simply acting. Depending on the facts of the case and on the good or bad facts regarding your client and your opposition—you will do better with either jurors that think or jurors that fall back on their own pre-existing beliefs and values.
Think and decide whether you want your jury to be composed of thinkers or impulsive actors.
A great many people think they are thinking when they are really rearranging their prejudices. –Edward R. Murrow (1908 – 1965)
Wood, W. (2000). “Attitude change: Persuasion and social influence.” Annual Review of Psychology 51: 539-570.
The jury will believe what you say, until they have time to think about it
A post at PsyBlog says we can’t help but believe what we read. At least at first glance. We simply take in new information and accept it uncritically. Then we assess the information for validity—IF we take the time to think. Without thinking (or reflection) we simply believe what we read. And probably what we hear as well.
While we apparently want to believe, we want even more to avoid being deceived. When you are presenting your case to a jury, you want to avoid distorting the truth. If the jury hears your story and accepts it and then learns you misrepresented the facts, you lost credibility. In our mock jury research we often see responses like:
“I was really for the plaintiff until I heard from the defense. Why did the plaintiff lie? Now I don’t know who to believe.”
Just as we resent friends and acquaintances who lie to us and we feel betrayed when lied to by those who say they love us—jurors take being deceived by litigators a grave betrayal. They take their role very seriously. They are there to pass judgment on your case; if they perceive that you have lied to them you will experience their judgment of you. Once you lose your credibility, you don’t get it back. There is simply not time in the space of a trial to regain the jurors’ trust.
The “McDonald’s Coffee” case is not merely a lawsuit, it is now urban legend. I have never met a juror who knows more than the sound-bite “Old lady spills coffee on herself and sues for millions”. You have enough on your hands to try to re-educate them about the case, so what do you make of it? Two things: First, they believe the jurors were stupid enough to buy a load of nonsense from a lawyer; the case was frivolous. Second, the jurors never, ever want anyone to think that they are as dumb or naïve as those on the McDonald’s case.
Any hint or suspicion on the part of jurors that you have betrayed their trust will flip a credibility switch that is unlikely be reversed.
Simple Jury Persuasion: Be a good host
While the literature is replete with suggestions on how to do this and that—when it comes to persuasion, and just how-to persuade—it is often confusing. A particularly clear lesson comes from a 2001 publication (Bedell 2001).
Bedell suggests three simple strategies:
1) Fulfill their personal needs
2) Be credible
3) Communicate persuasively
It would seem that, if you focus on the first recommendation of fulfilling their personal needs—that the other two strategies tend to follow. Let’s look then at the first strategy suggested by Bedell and apply that to your interactions with the jury:
Fulfill their personal needs
- Make them feel like winners
Often, jurors do not feel like winners by the time they’ve made their way to your panel. They’ve been sitting, sometimes for hours, and waiting, and wondering when they can leave. Your task early on in voir dire is to instill a sense of interest and commitment to the hard work on being a juror and to have them see a true reason to invest their time and energy in the judicial process.
- Do not under-estimate their need for security
Jurors, like the rest of us, do not want to be deceived. They want to feel comfortable with the notion that you, unlike ‘most lawyers’ are going to treat them with respect and courtesy and that you will not lie to them or attempt to manipulate them.
- Remember they care what others think
And they don’t want to appear biased or prejudiced. But you still have to find out whether your jurors have biases/pre-conceived notions that will be bad for your case. Rather than asking your questions in a negative fashion (“How many of you would have trouble being fair?”—which certainly doesn’t make them feel either secure or like winners), you can frame your question in a way which respects them and helps them feel safe (i.e., like secure winners) with you (“A lot of people would have trouble listening to a story about sexual assault because of their own values or experiences. How many of you would agree with that?”)
- Let them talk first
There is an urge, often powerful, to use voir dire to persuade—to argue your case. If you want to form an alliance with your jurors, don’t. Instead allow them to talk about their beliefs, their values, their comfort level in serving on this particular case (“it’s hard enough to be a juror, I don’t want to complicate matters by asking you to serve on a case that makes you uncomfortable”). You will serve your client and your jury far more effectively by allowing voir dire to really be “to tell the truth” rather than using it to argue your case and have jurors begin to resist your efforts early on.
- Deal with their anxieties
You are doing that already if you are following the steps above. Also let them know that they will be given help understanding how to apply the law (and build that in to your case presentation); that evidence will be presented in a way that makes sense and that will tell a story about what happened; and that you know they will do their best to right the wrong that has happened here and that your job is to give them the information they need to do just that.
Think of voir dire as a party you’re hosting where your goal is to learn as much as possible about your guests.
Bedell, G. (2001). “Tactical tips for persuading effectively: From three steps to yes.” Manage (May): 18-19.
Voir Dire Fundamentals: Look for trouble, not for friends
At the risk of sounding obvious, it’s worth revisiting the reasons for voir dire examination. Ironically, it is much more like what most judges wish lawyers would do (get information) than it is what, in practice, most trial attorneys do (argue their case).
Go back and read our blog post entitled “Simple Jury Persuasion: It feels good to get along”. It discusses a principle called “commitment and consistency” (Mills 2000). It captures the idea that people look for things they can agree with more readily than things they disagree with. Simple, right? So why won’t they talk to you when you ask rhetorical questions (that aren’t really questions) and why won’t they respond to what feels like a trick question (Is there anyone who can’t be fair and put aside…).
An effective voir dire seeks to find people who will say “YES” to issues that torture you in your sleep. We have written extensively on this (most recently Keene and Handrich, 2009) and the formula is pretty straightforward. What we want to do in this blog is to remind you of what you are trying to do:
- Help the jurors feel comfortable endorsing positions adverse to your case.
- Ask them whether they have strongly held positions that will cause you problems in the jury room.
- Try to get them to admit to a strength of view that makes them unfit for service in this case.
The structure of the questions is available in articles that are available for free on our website. For now, though, just remember why you are conducting voir dire. You are trying to find out who will cause you problems, not to persuade. You will make great strides in bonding with the jury and leaving them wanting to hear more from you if you stick to that agenda in a direct and friendly way.
If ‘voir dire’ means to speak the truth, let’s start with the questioner.
Mills, H. (2000). Artful Persuasion: How to command attention, change minds, and influence people, AMACOM.
Keene and Handrich, 2009. Making the most of a short voir dire.
HDTV Jurors: What do you watch on TV?
Americans watch about 153 hours of television every month in their homes. That’s a lot of TV. My mom would say that is way too much television. And many of the most popular television shows are forensic and crime dramas like CSI, Law & Order, Cold Case and The Closer. Researchers at Indiana State wondered how all that TV watching might influence attitudes toward the criminal justice system.
What they found was disturbing. People who watch these television shows believe that many more real-life murders happen; that more serious crimes occur; that there are more law enforcement personnel than actually exist, and can take on a belief in a ‘mean world syndrome’ and develop a fear of victimization.
On a jury, they are what they watch (on TV). What might happen if your jurors watch crime and forensic dramas at home? Consider that for many, what they see is their reality. What they conclude from television is the lens through which your case is viewed.
A juror might re-enact evidence on his/her own to ‘see what happens’. We’ve seen this actually happen with a juror in the Matthew P. Jaeger case (a kidnapping and aggravated battery charge) and on the more well-known Widmer (jurors and skin-drying experiments) case. (And not just jurors experiment! Todd Willingham’s defense attorney talks about how he ‘knew’ his client was guilty based on his own experimentation in a CNN interview.) Note to self: Don’t do this at home!
Maybe your jurors watch ‘Lie to Me’ and believe they can intuit deception from fleeting micro-expressions because they watch that show frame to frame on their DVR players. These jurors can be so convinced of their superior observational skills that evidence is tossed out because they ‘saw through’ the lies attorneys put forth in court.
The list of worst possible scenarios is endless (not to mention frightening). Ask in voir dire about who watches these television shows. Ask who understands that what is on TV is a bit more advanced, while also being more simplistic, than what we can do in real life (and in court). Ask who can put “CSI” and “Lie to Me” ‘training’ aside and deliver a verdict based on the evidence. Ask who would feel that putting that ‘training’ aside would feel wrong or impossible as they deliberate. Do they require CSI-level evidence to prove the case? What it their HDTV requirement for reasonable doubt, or even probable cause?
In truth, depending on case facts, you may want jurors who feel that CSI levels of evidence should be brought to bear (real standards will likely fall short). The important thing is that you know who is on your jury, whether they can stop themselves from re-enacting or leaping to conclusions, and that you remind them at closing about their obligation to make decisions based on evidence presented in court (not on television).
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