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Power, Penises and the Role of the Presiding Juror

Monday, August 22, 2011
posted by Douglas Keene

So it happened again. We do a lot of pre-trial research and observe a lot of both mock jurors and the dynamics related to presiding jurors.  This past weekend, we re-experienced the frustration of how bad it can be when you get a controlling and dominant presiding juror.  In a real jury, a dominant presiding juror who loves your case is a godsend.  But in a mock trial or focus group, they undermine the deliberative process badly, and compromise what we can learn from the research.  And as we thought back over the past six months, we saw that it has happened three times. All male jurors. Two white, one Hispanic. Always dismal if left unchecked.

Some trial consultants think you simply observe the process. You focus on what can go wrong if the dynamics sour. We don’t do that. To us, the work product is more important than the process between the jurors.  We know how deliberations can jump the tracks and become unproductive—we’ve seen it and know that it can undermine the quality of our efforts, so we don’t let it stray very far.

We walk in, disrupt the unproductive process, and redirect them to the task at hand.

We clearly describe what we want from the presiding juror so it isn’t a matter of lack of clarity.

We have gone so far as to warn the presiding juror their role will be removed if they do not allow more dialogue and stop talking so much.

If the presiding juror doesn’t have the ability to effectively guide the deliberations, a senior consultant steps into the group, and gently but firmly takes over the role of presiding juror.

To be very clear, we explain at length to our clients various ways in which focus groups and mock trials are not cleanly predictive of actual jury outcomes, and this kind of intervention is certainly one example.  It highlights the fact that the goal for a jury trial (a favorable verdict) is different than the goals of jury research (information about why jurors respond to the facts and argument as they do).

So when our presiding jurors run amok, it’s truly indicative of just how bad it could get. But why is it that the ‘problem’ presiding jurors are always men?  We have female presiding jurors. But they don’t take on the power of the role as an excuse to dominate. So why do our men? Even recent research (cited below) tells us that our leadership stereotypes are male. That is, as the researchers state, “Specifically, people viewed leaders as quite similar to men but not very similar to women, as more agentic than communal, and as more masculine than feminine.”

But, you may protest, it’s 2011! What do we do? We aren’t sure, exactly. But here’s what we’ve seen.

Groups led by controlling and male presiding jurors tend to demonstrate leader/juror communication almost exclusively. There is little juror-to-juror dialogue.  If you did a communication map of how dialog in the group transpires, the communication lines are all between the presiding juror and the others in the group, not among group members.  This is a classic example of poor group communication, and it leads to decreased investment in the decision-making process and its outcome.

Groups led by controlling and male presiding jurors tend to have higher levels of demeaning or minimizing communication from the presiding juror to those individual jurors who disagree with him. When that happens, individual jurors often withdraw and no longer participate in any questions from the presiding juror to them. They feel powerless and ineffective.

Unseating the power of the presiding juror requires a small group (of generally about three jurors) to confront the presiding juror and take control of the process.

So here are some strategies for effective management of deliberations.  (And probably good ideas for handling workplace discussions and family dinners.)

Teach the group ‘how’ to deliberate. Let them know what to expect and how to work with each other to come to consensus.

Teach the group ‘how not’ to deliberate.

Carefully describe the role of the presiding juror. It is not that of a dictator. It is not the person with the ‘right’ answers. It is a role for those who are not attempting to control the others, but rather, to hear from everyone.

Empower jurors to disagree with the process if they do not feel heard. Empower jurors to confront the juror not feeling heard if they believe that person is trying to monopolize the conversation by crying ‘victim’. This may happen more naturally if you have a number of women on your jury, but teach them what language to use anyway.

Use a jury charge in your closing argument to tell jurors how the evidence supports your case and how you would like them to vote. In other words, give jurors who support you words to use in the deliberation room. You may want to encourage them to close their eyes during certain parts of your closing argument.

And finally, make sure your jurors know about rabbit trails and how to know if a bear has been disturbed.

The idea is that you are still with the jurors in the deliberation room. They are not abandoned when the door closes. They have your words, your graphics, and your direction for what lies ahead.

If you read us and find us useful, helpful, entertaining, or in any way enlightening–please consider nominating us for this year’s Blawg 100 listings. You brought us into the Blawg 100 for 2010–how about helping in 2011? Nominate us for the ABA Blawg 100 here.

Koenig AM, Eagly AH, Mitchell AA, & Ristikari T (2011). Are leader stereotypes masculine? A meta-analysis of three research paradigms. Psychological Bulletin, 137 (4), 616-42 PMID: 21639606





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