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Archive for the ‘Voir Dire & Jury Selection’ Category
Simple rules, beer pong, hysterical laughter & jury questionnaires
What do beer pong and voir dire have in common? Apparently, quite a lot! That’s what the Mass Torts blog concluded with regard to Mark Bennett’s Simple Rules for Better Jury Persuasion article in the most recent issue of The Jury Expert.
We think Mark’s a pretty creative guy and we’ve pointed our readers to his blog a number of times: here and here for example. And we like his rules. They are catchy, easy to read, fun, and likely pretty effective (since they mirror much of what we recommend!). We liked Mark’s simple rules so much, we stole the idea from him for our series on Simple Jury Persuasion. The persuasion literature is huge. Our series is meant to give you a taste of it and see how we apply emerging research findings and random thoughts to the litigation advocacy.
So we thought we’d give you a few amusing excerpts from recent juror questionnaires since Mark’s used up all the funny rules for better jury selection. It takes a LOT of preparation to make the actual work of jury selection/voir dire simple and even fun! And when you are bleary-eyed at 11pm from poring over juror questionnaires for hours and know you have hours and hours to go, every little bit of amusement goes a long way!
- Question: What is your occupation?
- Answer: I am a frozen food stalker at Wal-Mart.
- Watch out frozen food!
- Answer: I am a frozen food stalker at Wal-Mart.
- Question: Have you heard anything about this case prior to today?
- Answer: I am a physician and I will side with the physicians. I know everything about this situation and I know all the doctors involved. I know how sleazy the defense side behavior was. I am very busy.
- Hmmm…I would say she doesn’t want to serve!
- Answer: I am a physician and I will side with the physicians. I know everything about this situation and I know all the doctors involved. I know how sleazy the defense side behavior was. I am very busy.
- Question: Is there any reason you should not serve on this case?
- Answer: I have issues. I could bring a note from my psychiatrist.
- It’s okay judge. Let her go!
- Answer: I have issues. I could bring a note from my psychiatrist.
At 2am, these sorts of comments are hysterically funny. And by 4am, they are likely to make you cry with laughter. It’s tedious work. Painstaking. And that’s why we like the humor and engaging style of Mark’s 16 Simple Rules for Better Jury Selection. We hope you like it too.
Can you assess juror morality by counting tattoos?
Maybe you can. While ink on the skin doesn’t mean what it used to (see our post here) it still is a concern for many among us. Body art/ink has become mainstream as evidenced by its presence among a wide cross-section of the population. Even the very educated have tattoos. One of the blogs at Discover Magazine’s website recently uploaded a variety of ‘science’ tattoos which decorate the bodies of scientific researchers. Very amusing.
But parents worry. And so do litigators choosing juries. What do those tattoos mean? There’s research for that! Thanks to researchers at Texas Tech, parents and litigators everywhere can know what those tattoos mean. In essence, tattoos are like real estate: “The key factors are density and location, location, location”.
Here’s what they did:
Researchers counted the number of tattoos and piercings (and noted just where on the body the markings or piercings were located) and then assessed ‘deviance’ (in the form of marijuana use, occasional use of other drugs, being arrested for a crime, cheating on college work, binge drinking, and/or having multiple sex partners).
And here’s what they found:
Those who had 4 or more tattoos, 7 or more body piercings or piercings of their nipples and genitals (which hopefully will be difficult for most parents and litigators to assess) were more likely to report deviant behavior.
To a very significant degree, tattoos and piercing is a sign of style and fashion, rather than rebellion. Researchers concluded that the growing acceptance of body art means those with truly deviant tendencies have to go a step further (multiple tattoos or nipple piercings) to maintain their sense of social distance. You have to try harder to make it clear that you are an outsider. So you might be able to assess social alienation and disenfranchisement by counting tattoos, but take it easy on wondering about the ones you can’t see.
Propaganda, Dogmatism & Bias: Who are your jurors?
As the country becomes increasingly divided (again), we are seeing increasing indications of closed minds on jury panels. This is reflected in the blogosphere and in recently emerging research findings. Sadly, this appears to be a time of seeking to affirm pre-existing beliefs rather than informing ourselves and coming to our own conclusions about hot button issues.
It has become commonplace to think that the news channels prospective jurors watch can tell us about their politics. We blogged about this here and here. So it isn’t surprising when we hear the results of a study in the journal Media, War & Conflict telling us that we don’t seek out television news to inform ourselves, but rather to affirm ourselves. That is, we watch television news shows that support our pre-existing beliefs, rather than those that could challenge those pre-existing beliefs.
Or, as Robin Hansen at Overcoming Bias blog tells us, we are “built to rationalize”. In other words, Hansen says, “our minds often unfairly defend our most deeply held beliefs” and “when we sense such beliefs being threatened, our minds distract us, refuse to comprehend alternatives, and grab onto weak excuses as though they were timber”. It is what we do. We use cognitive shortcuts like stereotypes to help us defend against new information and maintain confidence in our pre-existing beliefs.
So given the resistance of entrenched beliefs to change and the relatively short timeframe of most jury trials, how can you attempt to seat a jury most open to actually hearing your case?
- If your case resonates with conservative and/or religious values, you may like jurors who show evidence of dogmatism which is, essentially, being powerfully wed to a particular belief system. These jurors will hear your case and dismiss opposing counsel (particularly if you show them how the other side does not resonate with their strongly held values).
- If, on the other hand, your case resonates more with liberal or pluralistic values (the more ‘gray’ areas), you want to identify jurors (for disqualification or peremptory strikes) who will dismiss your case without listening. Look for group affiliations that would indicate the likelihood of dogmatic beliefs.
And for those of you curious about a short-hand way to identify those more open-minded—here’s a tidbit. The same study finding that we seek to affirm rather than to inform through our television news habits, also found something that may surprise you. Those who watch television news on the Al Jazeera English network become less dogmatic! And the longer they watch, the more open they are to opposing points of view. We find that very intriguing. Opposing counsel may well know ‘who’ watches Fox or listens to NPR—but do you think they know who listens to Al Jazeera? Ah, but now you’ll make sure to know.
Voir Dire Clinic
This blog post marks the beginning of a series, the frequency of which will be decided by you. I was asked, by a very gracious and experienced litigator/reader, if I would weigh in on a voir dire dilemma she recently faced in Federal Court.
There was no attorney voir dire, so she only had the opportunity to submit questions for the judge to ask. Questions had to be put plainly and directly, and she needed them to be voir dire questions of a sort the judge would consider appropriate. The results of my analysis and top 3 suggestions are below.
She suggested that this would be an interesting blog series, and I agreed. Maybe you do, too. So here is what we’ll do. If a situation we know of strikes us as being worthy of this treatment, we will offer our own fact pattern as the basis. But what would be far more interesting is if your ideas and case concerns take center stage. If reading this brings to mind your own case facts you would like to see discussed, let us know. Feel free to modify and obscure the facts to mask the case, and we will not publish the name or venue of the person who submits it. Try to limit the case description and your view of the primary concerns to about 150 words. Submit it as a comment to the current blog post, and we’ll take it from there.
We have been writing for years about the fact that we put little stock in persuasion and our belief that the best a fine trial lawyer can do is to build a bridge between the values and preconceptions of the jury and the facts of the case. A perfect voir dire weeds out the venire members who are disinclined to allow that bridge to be built. But where are the land mines? Let’s look at the case presented for analysis.
Case: Knicknack Supplies decides to contract for custom work to be done offshore. They hire Acme Logistics Co. to arrange for manufacture in China, for which Acme is to receive a fee. The fees fall grossly into arrears, time passes, and a lawsuit is born.
Quandary: What questions might we submit to the judge to identify jurors who will hold negative views of the Acme Logistics, whose whole business is arranging advantageous offshore manufacture for American companies? Acme’s counsel is confident that the contract is clearly in Acme’s favor, if only it is not muddied by these negative views.
Analysis: The underlying assumption is that the jury will attribute more of the responsibility for the move offshore to Acme than to Knicknack (which is not necessarily true). But if this assumption is true, we want to find people whose values are protectionist toward American companies, who feel the strain of the shift toward Asian manufacture, and who are more interested in punishing over the changing job climate than tracking the facts of the case.
Questions:
Who goes out of their way to buy products made in the US whenever possible?
Who feels that it is disloyal to our own country to shift jobs overseas that could be done here, just for the sake of small savings?
Who has no interest in ever visiting Asia?
Discussion:
The first question addresses lifestyle. Are you willing to work to support the US economy through your shopping choices? Most people who say this don’t live it, but it is their willingness to say it that is of the greatest interest. It signifies that they are hardcore.
The second question gets at whether they are looking for scapegoats.
The third question, which might not meet with cheerful endorsement by the judge, is actually very meaningful. It seeks out those whose minds are closed to any potential merit in understanding others and in a global culture.
So, send us some comments. Of course there will be many more questions submitted to the court. What would you add? Why would you add it?
And on what case would you like input? Shoot us a comment about this one, and pose a case and quandary for us. We’ll offer our take on it, and see what our readers suggest for consideration. This could turn out to be fun!
Extremism comes in many shapes and forms
Given the focus of our country on terrorism, now if we say ‘extremism’—we likely have a common image that comes to mind. But there are many kinds of extremism. We’ve written about some of them: racism here, and here, polarizing opinions, and hate group members.
What we’ve noticed is that when we have mock jurors who describe themselves as “very liberal” or “very conservative” or “very religious” or very anything—they often have trouble listening to and actually hearing evidence. It is as though their ‘bias filters’ are turned so high that they hear not what the litigator is saying, but instead what they believe the litigator means or even should be saying.
These are often jurors who end up seeing conspiracy, hidden agendas or motivations, or simply ‘know’ something is not true despite evidence to the contrary. Those who identify themselves as extreme on any belief system or attitude are generally too unpredictable to leave on a jury.
Spira (2002) writes about this reality: “high levels of certainty and extremity result in resistance to persuasion”. We agree. Rigid extremists do not magically turn into open-minded and curious jurors for your case even though they may say they can “be fair”. In our minds, this is not the time to extend the benefit of a doubt. Exercise a strike.
In the face of the unexpected: Be cool
A few years ago, this post might have been illustrated with a photo of John Travolta. But time passes. Now, the essence of unflappable coolness is George Clooney. Trust me on this one.
Recently, George (I call him George) was promoting his film “The Men Who Stare at Goats” at the Venice Film Festival. Reporters were asking questions. George was answering questions. All very straightforward and predictable. No surprises. Until suddenly a ‘reporter’ stood up to ask a question and instead took off his clothes and asked if he could have “just one kiss” from George Clooney.
Instead of being embarrassed, tongue-tied, or otherwise mortified, George is the essence of cool. Watch the video. He listens to the man’s breathless advances, tells the man (as he disrobes) that he has a “nice tie and it’s just long enough!”, ad libs about Peter Sellers, cracks a joke about how embarrassing it is when you take a big chance and it just doesn’t work out—and, at that point, security hauls the man-fan away.
And my point is? My main point is that George Clooney is extremely cool. And my ancillary point is that communication is sometimes required to be off-the-cuff. You cannot plan for the unexpected. Especially when you are in the courtroom. The unexpected can simply burst forth. And at moments like that, the person behind the role becomes visible.
A man named Grafton Hull who happens to be a professor of Social Work wrote a brief article on the importance of what you do when the unexpected bursts forth back in 2003. He could have been picturing George Clooney at that press conference some years in the future. What did Dr. Hull say about communication in the face of the unexpected?
“Be well prepared, never look flustered, keep your cool.”
It’s great advice.
Voir Dire: Do you like tall extroverted men?
We mean on your jury. From our perspective, it depends. You may remember back in the 1950’s there were studies completed that found tall men were influential in groups. As we move into 2010, things haven’t changed a whole lot. A study of jurors in 2000 found that jurors rated the extroverted, tall men among them as the most influential in group discussion (Marcus, Lyons & Guyton, 2000).
Interestingly enough, another study completed about the same time looked at juror gender and decision-making on guilt or innocence. Voss & Van Dyke (2001) found that male jurors focused more on the evidence in terms of their guilt judgments while women considered evidence but also situational factors. Voss & Van Dyke theorized that men are more influenced if the emotional content can be related to the evidence. Women, on the other hand, are more influenced if the emotional content relates to the defendant.
So if your final choice is between a tall, extroverted man and a female juror, and you’re listening to these researchers, do you like tall men?
If you are the prosecutor and the evidence is circumstantial but compelling, you probably should like tall men. According to Voss & Van Dyke, men would focus more on the evidence and the power of that evidence in ascertaining likely guilt. Women would weigh the evidence but they would also consider motivation, alternative possibilities and may slow down the juries march to a guilty verdict.
If you are defense and the evidence is circumstantial but compelling, you don’t like tall men so much. They may be influential in the jury room and persuade other jurors that the evidence is strong enough to convict. A female juror would likely listen more to context and the broader picture.
Research, however well done, shows us but a slice of human behavior. Yes, men and women may process things differently and we may see evidence differently. Somehow though, we doubt that all women think through evidence in the same way, and of course there is a range of styles among men as well. We tend to take information like Voss & Van Dyke’s with a grain of salt and focus more on experiences, attitudes, values and beliefs of jurors. But all other things being equal, information like this can give you a small measure of comfort when you have to make that last strike decision.
We act as we believe others expect us to act
PsyBlog recently posted about a classic study where researchers examined how attractiveness was related to stereotypes about sociability, humorousness and intelligence. What they found, of course, is that when we believe others think we are attractive—we then appear as more scintillating, sociable and amusing. Their conclusion is that this offers an explanation of why we are different across various social situations.
So imagine you are concerned about how the jury will react to you. You’ve had limited trial experience and you expect that they will figure it out and as you think about it you become increasingly anxious. What the research just described would say about this is that your negative thinking is going to shoot you in the veritable foot.
Instead, visualize how you wish you would present yourself in voir dire. Then do it. Smile. Make eye contact. ‘Like’ the jurors. Appear confident. Show self-effacing humor. Set the tone early on for the jury to see you as likeable, attractive, intelligent and reasonable. As the trial goes on, you are more scintillating and intelligent and entertaining than usual. Which makes you more credible and believable. Hmmm.
Maybe you have a big deposition coming up. A ‘friend’ sent you a videotaped deposition of “how we do it in Texas” and after you stop laughing hysterically you begin to wonder if this is really how you are supposed to depose someone in the Lone Star State. It certainly isn’t what you intended to do. Then you realize that your friend sent it to you to break your anxiety. A friend indeed!
So breathe. Think about your goal. Be grateful that your deposition is not likely to involve fisticuffs with a senior citizen. Be polite and follow your plan.
We are different in various situations. But fortunately we have choices about how we’ll approach different people and situations. Challenge your intrusive anxious thoughts about performance. Play the role of a confident, likable, intelligent attorney a few times and it becomes second nature. It’s who you are. It’s what you do.
Generation Y (aka the Millennials): Just the facts
Members of Generation Y (as with other generations before them) have been derided and maligned. People love to generalize about ‘ the younger generation’, and do it all the time. And it’s been going on for centuries.
“The children now love luxury; they have bad manners, contempt for authority; they allow disrespect for elders and love chatter in place of exercise. Children now are tyrants, not the servants of their households. They no longer rise when elders enter the room. They contradict their parents, chatter before company, gobble up dainties at the table, cross their legs, and tyrannize their teachers.” Anonymous (widely mis-attributed to Socrates)
And one of my personal favorites from Clarence Darrow:
“The first half of our lives is ruined by our parents and the second half by our children.”
Those older demean those younger (and the youth are not particularly admiring of their elders). Whether we do this in our personal lives or not, is naturally, a personal choice (and just as naturally, has consequences for our relationships). But in the courtroom and in voir dire, it is wiser to make choices based on what we know to be true of human nature rather than what we assume or choose to believe.
Here is (courtesy of the Pew Research Center) what we know now about Generation Y—the newest members of the jury panel.
- The oldest members are approaching 30 (the youngest are approaching adolescence).
- They are more inclined to trust institutions than either Gen X or Baby Boomers when they were coming of age.
- They are the most ethnically and racially diverse cohort of youth in the nation’s history: 18.5% are Hispanic; 14.2% are Black; 4.3% are Asian; 3.2% are of mixed race; and 59.8% are White.
- They are the least religiously observant/practicing cohort since religious behavior was added to survey research.
- They are the most politically progressive of any age group in modern history.
- They see social networking as normal and everyday activities and internet use as routine (e.g., tweeting, texting, Facebook, YouTube and Wikipedia).
All of these factoids have relevance for voir dire, case presentation and witness preparation. Millennials are often frightening for litigators because they are so ‘unknown’. Yet, many of them are old enough, sufficiently well educated, and assertive enough to be forces in the deliberation room. It is unwise to assume “young people are bad for plaintiffs” just as it is unwise to assume “women are good for plaintiffs” or “women are tough on crime”. It simply all depends.
We will watch as more substantive research emerges on Gen Y/Millennials. Undoubtedly we will write a paper on attitudes and values and litigation advocacy with Gen Y as we did with Generation X (http://www.keenetrial.com/articles/htm). In the meantime, watch yourself. Bias is often a subtle and insidious thing. Seeing this generation as different from those that have gone before (as indeed all generations have been) can help you avoid pigeonholing assumptions.
Questions, rabbit trails and how to know when a bear is “disturbed”
Attorneys often ask how we keep mock jurors so engaged and focused over long days of evidence presentation and discussion. The answer is simple if a bit tongue in cheek: we keep them busy and they know there’s going to be a test (in the form of group discussion) at the end.
Obviously you can’t be handing out questionnaires and engaging actual jurors in discussion of their reactions to evidence presented as it unfolds at trial. But there are things you can do that dramatically improve juror focus and engagement. Here are two strategies to increase juror engagement.
Let them ask questions: In Tennessee, jurors can ask questions if the judge allows it. The questions must be submitted and attorneys and judge confer to determine legality. A recent jury submitted one question following more than an hour of testimony from a psychiatric expert witness: “Does he know right from wrong – yes or no?”. Juror questions can cut to the heart of the testimony.
If you can’t have jurors asking questions, use pre-trial research to identify what their questions will likely be and address those questions as you walk witnesses through testimony. “In your expert opinion, Dr., does the defendant know right from wrong, yes or no?” Answering the questions jurors wonder about ensures you more than likely know how the ‘holes’ jurors see in the story are being filled in. Jurors appreciate knowing the facts that matter—and when they do, it’s much easier for them to refute “conspiracy theories” or idiosyncratic interpretations of evidence in the deliberation room.
Identify potential rabbit trails: Jurors can be distracted by the oddest things! Part of your job is to ensure they do not wander off on “rabbit trails” that lead nowhere and are ancillary to the story itself. An example of this type comes from San Francisco and a jury deliberating on a charge of “disturbing dangerous animals” after a mentally ill man snuck into the home of two female grizzly bears at the San Francisco Zoo. The question was whether the defendant had known he was entering a bear enclosure. Jurors however, became preoccupied by how one would know if you had indeed “disturbed” a bear and eventually acquitted the defendant.
This is obviously an unusual story for a jury to hear. What is more important is that the jury became sidetracked and engaged in a lengthy discussion of how one knows if a bear is disturbed. Walking the jury through the charge via over-sized exhibits is a terrific way of helping them to focus their attention in deliberation. Let them know what the operative (i.e., important) terms are in this case. Then, when faced with a rabbit trail, jurors can appreciate the humor in a “define disturbed” segue but return quickly to the (relevant) task at hand.
Responding to juror questions by providing evidence and testimony to answer them allows jurors to focus on the facts rather than on their fantasies about ‘why’ certain things happened. Walking jurors through the jury charge teaches them what the task is they are charged with completing. Both of these tactics reduce juror stress and uncertainty as they walk to the deliberation room. Answer questions and give them direction. It’s not that hard.
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