ABA Journal Blawg 100!
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Archive for June, 2010
It’s tempting to push a hard sell to jurors. You have lived with the case for so long that ‘if only’ they knew the facts they would surely agree with you. You may even find yourself selling your case in voir dire. We’ve written about the hard sell idea before and we would say it’s what happens when you confuse argument with persuasion. We are not fans of the hard sell although we understand the temptation.
Is the alternative a ‘soft sell’, where jurors are offered what to conclude from the evidence? They may be told via expert witness testimony (“so what this means is…”) or through other direct examination queries (“so you could not possibly have done what the plaintiff claims you did”). The problem with the soft sell approach is that jurors may resent your drawing conclusions for them, or it can seem too simplistic. We are all familiar with the theories on different learning styles and certainly all aware of the lure of the internet as a juror ‘aid’ to understanding case facts.
It’s probably not surprising to regular readers of this blog that we are proponents of the ‘no sell’ approach to litigation persuasion. It’s sort of like the overheard whisper of Joe Biden to President Obama at the announcement of health care reform legislation. That stage whisper went viral. It’s like the power of an overheard whisper.
We think the best way to the hearts and minds of jurors is to tell a story that contains all the dots and allow jurors to connect them on their own. The gentle stretch to that is to have witnesses testify about how they connected the dots, so the jurors can be comforted that if they go there, too, they won’t be alone. To trial lawyers it can feel like working without a net. The reality is that a simple story, told honestly and clearly, with structure clarified through the use of timelines and terrific graphics, lets jurors use hindsight productively to see your case theory/story clearly. Do it with thematic repetition, and the perspective sinks in. It is scary the first few times—this idea of trusting jurors. The advantage is that jurors sense your trust in them and it inspires them to be the best versions of themselves as they deliberate.
How upset do we need to be about racism?
During his campaign for the Presidency, Barack Obama spoke about a new age of race relations in America. Clearly, racism hasn’t gone away, but our understanding of it is expanding faster than ever. Race and racism is in the news and in research findings. As often happens, two recent (and unrelated) sources combined in our minds in a fashion that gave us an idea for this blog post. Then, the NY Times came out with their story on racism in jury selection in several Southern states and it seemed like it was simply meant to be!
So how upset do you need to be? It seems to depend. Researchers at San Francisco State University found that how much distress is caused by your personal experiences with racism depends on what coping methods you use. Denying or ignoring racism is the worst strategy. That tactic ends up making you feel bad and damaging self esteem.
The researchers found that for men (in a sample of Filipino men and women) dealing with racist incidents directly (confronting, reporting to authorities) was most beneficial. If instead, the men confided in friends—this made them feel worse and lowered self-esteem. For women, ignoring racism made them feel worse but active confrontation or confiding in friends did not seem to be either particularly effective or detrimental.
About the same time, Wray Herbert wrote a blog post about stereotypes of the “dangerous young black man”. He tells the story of NY Times editorial writer and psychologist Brent Staples who happens to be African American. Dr. Staples (attending graduate school in the 1970’s in Chicago) found that white couples seemed fearful when passing him on the street. After playing around with several strategies, he found he was least threatening if he whistled Vivaldi while walking. “Somehow, whistling the sweet refrains of the Venetian composer’s Four Seasons was enough to trump the stereotype and put the neighbors at ease”.
Yet, the very act of constantly being on the alert to appear non-threatening and overcome stereotypes of others meant the experience of racism was always on his mind. Distracting him. Keeping him from thinking about other things. While it put his neighbors at ease, it left him uncomfortable. Herbert goes on to discuss research on stereotype threat and ways to combat it most effectively.
Now, the NY Times has released the report of the Equal Justice Initiative and, even more recently, an editorial calling for the abolishment of the peremptory strike. This issue last raised its head in a big way a little over a year ago and Doug wrote about it then. Peremptory strikes are a favorite target to address the perceived ills of the legal system.
Yet, we do have an issue. We know racism exists despite an African American being President of the United States. We know (thanks to research) that how harmful the personal experience of racism is depends on coping methods, and that even effective coping methods can result in a level of harm, distraction and distress. And we know that African American potential jurors are systematically being removed from Southern jury panels (and likely others outside that geographic area) for ostensibly “race-neutral” reasons. We would hazard a guess that these jurors know exactly ‘why’ they are being removed and there is nothing “race-neutral” about it.
So. You tell us. How upset do we need to be?
Better find something besides DNA & hard science to persuade the jury!
For some time now, there have been concerns about the CSI Effect on our juries. In short, this is a belief/fear that potential jurors who watch television shows such as the CSI franchise will presume real labs can produce the same sort of evidence—and anything that falls short of that causes reasonable doubt. Litigators have lived in fear of the CSI Effect despite rising evidence it may actually be an urban (and rural!) litigation myth.
In fact, a recent study shows us that there may well be decreasing trust in the institution of science in this country. Miller-McCune is a terrific publication. Recently, they describe an ESP study with findings that may surprise you.
“Newly published research on belief in ESP suggests a public disregard for — and perhaps even hostility toward — the scientific consensus.”
Researchers had subjects watch a woman who seemed incredibly lucky or perhaps to have some sort of sixth sense do inordinately well at a card-guessing game. (In truth, she had been told the answers, but subjects did not know that.) Then they were told about ESP and given varying information as to how accepted/endorsed ESP was by the public and by scientists. Researchers expected those told that ESP had widespread support to be more likely to see the woman card-reading as displaying that ability. And that was true. But they weren’t expecting to see scientific consensus rejected. And they did.
Those told ESP had widespread popular support were likely to express agreement with that consensus, regardless of the scientific consensus. But among those who were informed that only one-quarter of the population believed in the phenomenon, support was actually higher when science gave it a thumbs-down.
We saw this first-hand in a recent focus group. A mock juror expressed the belief that a plaintiff parent’s panic as her child deteriorated while in the hospital likely made the decline worse or perhaps even caused it to happen. According to the juror, if she had stayed calm things probably would have gone better. When told there would be no evidence presented to support that conclusion, the juror said “Well, I still think so….”. Pew Research has seen it, too—a 2009 poll found that 16% of Americans believe in the “evil eye” (the belief that certain people can cast curses or spells that cause bad things to happen). And although we haven’t seen any evidence, a portion of those who believe President Obama was not born in America might well think he is an alien. As in… Mars.
So be careful what you say, and what analogies you use. Consider objecting to loose characterizations and metaphors by opposition counsel. Jurors don’t always hear things accurately. People read documents imperfectly. Their attention comes and goes. I might now find that I am being quoted across the e-universe as believing that our President is a Martian. I risk being attached to this absurdity this as a selfless risk for the benefit of our readers. So keep in mind that reckless distortions are not a joke, and it doesn’t take much to set confusion in motion.
“Klaatu barada nikto”
‘Getting it’, powerful bias & a terrific closing theme
We’ve spent the past month buried in pre-trial research. Traveling to very rural venues and then some of the nation’s better cities. And, of course, pounding the keyboard churning out reports. Here are some lessons learned:
Education level is often not predictive of one’s capacity to grasp the case.
We were reminded of this as we listened to a mock juror with a few community college classes say “Dude. Like the judge said ‘Hey man—you better do what I say’ and the defendant says ‘No way, dude’ and then this other company comes in and rescues them from themselves’. And the judge is like….’Cool’.”
And the other mock jurors nodded as though they finally understood what the attorneys had been trying to communicate to them for two days. We didn’t really need to run the statistics to see (although we did) that education was not correlated with verdict in a complex and confusing contract dispute.
Bias doesn’t hide in rural locales.
We might have expected this more in the rural locales we were visiting. But instead we sat in an up-scale neighborhood and listened to middle-class people telling us that our affluent Mexican plaintiffs should return to Mexico ‘where they belong’ and that if the parents had been less emotional maybe the physicians would have taken more time with them. We don’t get many medical malpractice cases these days and it’s disheartening to see them unheard because of pre-existing and non-salient biases.
“What has become of our country?”
We listened to a lot of litigators in the past month. And one of the closing statement themes that really resonated with jurors was this one. Like all great themes, it was a simple affirmation of the beliefs and concerns that the jurors already held. It spoke to their priorities, and said “I am one of you.” A master story-teller spoke about businesses failing, good men and women losing their jobs and contracts not being taken seriously. And he observed to them “A promise is a promise, and they didn’t keep theirs. Out of a lust for more than their share they destroyed a company, livelihoods were lost, and a community was devastated. What has become of our country?”
The new bumper sticker? Tattoos in the courtroom
We’ve blogged about tattoos before—looking at whether you can assess juror morality by counting tattoos and whether the location of a tattoo is meaningful (along with a cookbook photo of location and assigned interpretation).
Recently, however, a courtroom in Fresno, California has been dealing with a different issue: sentencing for two gang members who tattooed a 7-year-old boy with a gang icon. One of the two defendants is the boy’s father. Part of what has caught our interest in this story is the use of jury questionnaires where jurors are being asked if they have tattoos.
While this is sometimes done in death penalty cases, the idea of querying potential jurors about their tattoos is an interesting one. In the above case, jurors with tattoos could be useful information for either side of the case—gang sympathizers/members could be readily identified and every one with a tattoo would know the pain involved in being tattooed.
But what about privacy? Suppose I have tattoos I don’t want you to know about? While I doubt anyone will strip search jurors for body art examination—some jurors may not realize they do not have to disclose everything.
Tattoos can be artistic expression meant for public viewing or they can be meant to stay private and secretly enjoyed by oneself or a select few. As a trial consultant, I enjoy seeing people’s tattoos but I am intensely interested in seeing the tattoos you don’t want me to see. They give me secret information. Access to who you are privately and what biases you may bring in to the jury room with you. This is part of what I love about trial consulting. It lets me be a private detective. I learn things about what sorts of attitudes and experiences allow jurors to hear or result in them closing off their minds to information.
Sometimes though—access should be limited. When it is simply not my right to ‘see private tattoos’? Or other private beliefs and ideas? At what point do the parties rights to a fair trial interfere with the private citizen’s right to privacy? It’s an odd question for tattoos to raise but there you have it.
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