Archive for the ‘Voir Dire & Jury Selection’ Category
We can hear it now, “Your Honor, we would like to strike for cause all prospective jurors who believe in Bigfoot.” While it is likely such a request would hit the papers, it is unlikely any judge would grant that sort of disqualification. Yet, according to a recent survey, almost 1/3 of Americans still believe in the existence of Bigfoot. There is even a current television show, now starting a fourth season, called “Finding Bigfoot”. Whether you think it ridiculous or not, Bigfoot lives. If you experience the popular belief in Bigfoot as being kind of depressing, get in line.
We don’t recommend using random conspiracy beliefs, or random fringe beliefs (such as alien abduction, the moon landing, British government involvement in the death of Princess Diana, or the US government involving in the terrorist attacks of 9-11-2001) to attempt to strike jurors. Why? Well, because there are so many times when conspiracy theories tailor-made to your case spring up during pre-trial research and help you figure out how to avoid giving the conspiracy theorists in the room a foothold. And sometimes, they come up in the most unexpected moments and in cases that seem, on the surface to be dry and technical. Who would have thought they would be so laden with sex, drugs, and inappropriate behavior?
Wrongful termination: “That girl was just leading him on for drug money. I think the company principals put her up to it so they could fire her boss. He thought she really cared about him and that’s why he gave her that promotion and a company car. Did you see how she was sniffing in her deposition? She is obviously on cocaine.”
Breach of fiduciary duty: “Wow. She is so much older than him. What’s going on between those two? She ended up moving to a new company with him and now he is her boss? Hmmmm…(with knowing glances to other jurors).”
Breach of contract: A mock trial just this past month included a very normal looking, retired high school English teacher who we’ll call Victoria. As she viewed the deposition excerpts she was consistently critical: “He needs a haircut”, “Her hair is certainly a very odd color”, “Who dressed him for deposition?” but her nature came through even more clearly when the group began to deliberate.
The observation room was filled with half a dozen attorneys whose jaws collectively dropped when she turned her venom on a fellow mock juror who mildly disagreed with her by saying, “Oh, I don’t know, I thought the witnesses for that party were pretty good.” The retired teacher drew back like a snake about to strike. “WELL! That’s your opinion. I don’t need anyone to tell me what I think!” And she refused to entertain any suggestions that her opinions might be a little off-kilter. General Counsel for our client leaned over and said quietly, “Do you think we can come up with a Victoria filter?”.
Or you may hear tantalizing comments on a wide variety of case topics that give you clear intimation someone is leaning toward some sort of secret or conspiracy.
“I think the doctor and nurse had an affair and it ended badly.”
“I think they did steal the idea from [the inventor] and they are paying off their researcher to take the fall for it so they can blame him and not the whole company.”
“I have a feeling something strange is going on here and we need to question everything they told us. I think they are lying to us and I am not sure why.”
It’s a shame that shows like the X-Files and Lie to Me are no longer on television. It wasn’t that they were fabulous television (although the X-Files came close), but when we would see fans of those shows show up for trial, we knew we had a clue about how drawn they were to conspiracy. A research study on fans of the show Lie to Me found those viewers were not really better at lie detection (although they thought they were!) but instead, simply more suspicious of everyone. Which, we think, made them more likely to fill in the blanks in a case narrative with their own “truth”.
Over the years, we’ve written a lot about conspiracy theories and conspiracists on the mock jury. They are certainly odd. And pretty entertaining when they fall in favor of your case. But, they can also bring a vivid imagination to your case narrative. That imagination causes both consternation and hilarity in the observation room but also highlights holes in your case narrative that you can fill prior to trial. As we’ve said before, filling those holes won’t necessarily stop the conspiracy theorist from re-digging them and leaping in with both feet, but it will give other jurors in the deliberation room ammunition with which to refute their (conspiracy-based) assumptions.
For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita
For those of you blurting out “men are more corrupt”–slow down a bit. Interestingly, it may depend in part on where you live and whether corruption is seen as something to avoid (rather than a fact of life). According to these researchers, women in democratic countries are less likely to tolerate corruption and less likely to act corruptly in comparison to men. But, say the authors, in autocracies, women may feel bound by societal norms–even when those norms include bribery, favoritism and personal loyalty. In other words, being more moral or more pure by virtue of gender alone is a myth.
The researchers collected data on 157 countries (using three organizations that measure and monitor corruption around the world) to assess the occurrence of corruption at a national level. Then they used data from the World Values Survey to see how much individuals across 68 countries tolerated corruption. As mentioned above, they found the relationship between gender and corruption depends on context. There is no “corruption gender gap” in countries where corruption is an expected part of governmental function.
It is tempting to ascribe vast differences to gender. Hence, the popularity of books like Men Are From Mars, Women Are From Venus and many others that characterize genders as highly disparate. Some researchers go so far as to say “psychologically, men and women are almost a different species”. These are sensational and attention-grabbing lines but they are largely unsupported by evidence. Men are from Earth and women are also from Earth. Women and men are members of the same species. [Usually.]
There are certainly differences between the genders (when broadly considered). Women tend to be more communal and cooperative. Men are often more individualistic and competitive. But the causes of these differences are not clear. Social, biological, or mysterious– the broad trends persist, but not universally. There are communal and cooperative men. There are individualistic and competitive women. Behaviors and characteristics exist on a continuum for all of us.
It’s part of why we bang the drum so often that gender is simply not a good predictor of how individual people are going to react to your case. We’ve worked on a case where the Defendant engaged in wildly inappropriate sexual behavior but he was so matter-of-fact and honest about it that both male and female jurors supported him. We’ve worked on a case where a man legally engaged in behavior that allowed him to profit from deceiving his spouse. Both male and female jurors wanted to punish him despite cracking jokes in awe over his powers of deception. We’ve had business disputes where some men and women jurors say, “it isn’t illegal but it sure isn’t right”. In those same disputes, their opposing male and female counterparts say, “it’s just business”.
It isn’t about gender. It’s about context, socialization, attitudes, beliefs and values. We come out of the womb either male or female. The road we travel to adulthood is filled with experiences that uniquely shape our perspectives. Where we end up, in terms of our worldview and belief system, shapes our reactions to everything–including your litigation case. In short, you don’t want male or female jurors. You want people, either male or female, who can hear your case facts, assess the narrative, and come to conclusions based on the evidence provided (as flavored by their own values, beliefs, and attitudes).
Esarey, Justin, & Chirillo, Gina (2013). ‘Fairer Sex’ or Purity Myth? Corruption, Gender, and Institutional Context. Politics and Gender
When I began as Editor of The Jury Expert and we moved to online only publishing in May of 2008, we didn’t know how popular the publication would become. Of course, we had hopes but we estimated our readership would top out at about half of what it is today. So now, naturally, we are hoping we will simply continue to grow and grow! (Please tell your friends, family, colleagues, judges, and opposing counsel about this wonderful and free litigation advocacy publication!)
Although all the issues of The Jury Expert are online, only those from May 2008 through the present are published in their entirety online. For older issues, you have to download the pdf to see what’s included. Until now.
We’ve noticed that as various events happen in the news or in the courtroom, some of our older articles get spikes in traffic. It’s happening more and more as we grow the size of our archives, drawing on what we think of as classic articles or what journalists call “evergreen” articles. We will always write articles based on current litigation issues in the news, but it will inevitably include articles that stand on their own over time.
So for this issue, we scoured the print versions of the old publication and found articles that are truly classics but that few have seen. Now you can. And with our internet indexing–as future visitors come looking for them–more and more of you will see them. It’s a good thing. Don’t miss out!
Here’s what you’ll find in the latest issue of The Jury Expert:
This issue of The Jury Expert is filled with classic (aka timeless, charming, ever-useful, relevant, et cetera) articles from an earlier time. Read this introduction to see what classic TJE articles spiked as the verdict from the George Zimmerman trial came in.
Identification of juror bias is an ongoing challenge. Here’s a look at how life experiences and attitude formation build juror biases and how to engage jurors during voir dire from one of the pioneers in the profession.
One of the challenges in effective voir dire (among many) is how to ask your questions of jurors to identify who really won’t be fair–but without asking it that way. Here’s a way to structure your questions to increase the strikes for cause.
We’ve all heard the statistics saying visual evidence is much more persuasive than verbal evidence. But is it based on anything of substance? An experienced visual evidence consultant says we should question what we think we know.
This one is written by Doug Keene so you will find it familiar-sounding. We do a lot of pretrial research on a wide variety of cases but one of the most popular formats is one some of our clients call “the one where Doug channels Oprah”. No, he doesn’t wear a wig or even heels.
Nothing could be more classic than hindsight bias. And we always get questions on how to manage it effectively. Here are some ideas from an experienced litigation consultant.
Are there times you should talk about your case in voir dire? Here are some ideas on how to get jurors comfortable, get them talking, practice your timing, and discuss damages from a trial consultant who also happens to be an attorney.
Okay. So this one isn’t a classic! It’s brand new. But, destined to become a classic! And free which is why it’s our newest Favorite Thing. See videos of sessions from ABA’s 2012 National Symposium of the American Jury System: The Optimal Jury Trial.
We’ve written about myside bias before here. Myside bias is a subset of confirmation bias, and these researchers say it is also “related to the construct of actively open-minded thinking”. We see myside bias so often during pretrial research and in post-verdict juror interviews that side-stepping it is always at the front of our minds as we consider case narrative development.
In a nutshell, myside bias looks like this:
When challenged, we see and hear things through the lens of our own values and personal experience.
Ultimately, we interpret the meaning of what we see and what we hear in accordance with our own biases.
In other words, we don’t take in what you say. We take in what we (all ready) believe to be true. We lock onto data points that confirm our own world views. This is the point in pretrial research where our clients jump out of their chairs in the observation room, pace back and forth, munching handfuls of peanut M&Ms, and begin talking with their mouth full: “That is NOT what I said!”. It’s a frustrating experience for all involved.
So we were glad to see new research published on the relationship between myside bias and intelligence levels. How wonderful would it be if all we had to do was estimate intellectual function in order to know who would have the highest levels of myside bias? Let me answer that. It would be fabulous! Why, it would almost be too good to be true. And, unfortunately it is. There is absolutely no relationship between myside bias and intelligence. Bummer. In other words, smart or not, we all do it. Sigh.
Researchers summarize years of research they (and others) have done on myside bias.
“The research discussed here shows that in a naturalistic reasoning situation, people of high cognitive ability may be no more likely than people of a low cognitive ability to recognize the need to dampen myside bias when reasoning. High intelligence is no inoculation against myside bias.”
In short, if you are not warned in advance to dampen your myside bias, you don’t do it. However! If you are warned in advance to dampen your myside bias, people with higher intelligence are more able to do so. The researchers say we need to find ways to assess rational thinking skills and myside biases. We say–wait! What we need to do now is think of ways to warn our jurors in advance that they need to set aside their myside biases as they listen to the evidence!
And that strategy has potential. What we are talking about is the presence of the ability to be analytical. When looking at potential jurors, we are always examining who will be a natural leader. Natural leaders are often very intelligent and have the ability to think analytically. So we want to alert them to the need to set aside preconceived opinions without asking the tired “can you be fair?” question.
It’s already at work in some routine sorts of ways. Unfortunately, it usually takes the form of dull and empty boilerplate jury instructions such as “Don’t let bias, prejudice or sympathy play any part in your deliberations of this case.” Maybe when that was written decades ago it shocked people into arresting their myside bias, but at this point they skip over it and look for an instruction that makes sense.
And it does make sense, with an effective attorney guiding the process. The problem is, that there is a tendency to gloss over it, to make it a point to mention, rather than an issue to emphasize. To include in opening statements, or witness examinations, or closing arguments the notion that “before I heard the facts, I was naturally inclined to assume X, only to realize after carefully looking at things just how wrong I was at first” can be compelling. It normalizes something that is truly normal, thereby allowing the jury to do the same– to recognize the need to rise above our preconceptions.
We’ve written a lot about ways to “raise the flag” for racial bias awareness. There are times you want to do that and times you don’t want to do that. The same, we would wager, is true about myside bias. We will be experimenting with ways to know when you want to alert jurors to not showing myside bias and when you want to just zip it. We’ll get back to you on this one.
Stanovich, KE, West, RF, & Toplak, ME (2013). Myside bias, rational thinking and intelligence. Current Directions in Psychological Science, 22 DOI: 10.1177/0963721413480174
Most of us have heard the advice to either “follow your head” or to “follow your heart”. There are times when we have chosen one direction only to later realize that we would have done better to take the other path. New research shows we all have tendencies to make decisions based on either our hearts or our heads. As you might expect, women are more commonly driven by heart [up to 2/3] and men are more commonly driven by head [again, up to 2/3]–but gender does not entirely predict which decision-making method you tend to employ.
We don’t merely express ourselves in metaphors. Research has shown that we also think in metaphors. Researchers explored the differences between those who say they follow their heads and those who say they follow their hearts with eight different studies–including one which followed up after a year to see if the heart/head self-description remained stable. It did. The researchers believe this way of perceiving oneself is a trait that remains consistent over time. Rather than going through all 8 studies with you, we are going to list the differences the researchers found.
I follow my heart:
A preference for intuitive/experiential thinking.
A valuing of emotions and greater attention paid to emotions.
Self describe as more emotional and interpersonally warm.
Self describe as more agreeable.
Have lower amount of general knowledge [and have lower GPAs than head followers].
Solve moral dilemmas emotionally and tend to have higher levels of negative daily emotions in response to high-stress days.
I follow my head:
A preference for rational thinking and intellectual challenges.
Self describe as more logical and interpersonally cold (i.e., as having less successful and antagonistic relationships with others).
Self describe as less agreeable.
Have higher amount of general knowledge [and have higher GPAs than heart followers].
Solve moral dilemmas rationally and tend to react more aggressively to others in response to [what they perceive as] provocation.
You can see with a quick review of the findings from 8 different experiments–the researchers found measurable differences between those that said they followed their head and those that said they followed their hearts. As we look at this, we think about how ‘head’ or ‘heart’ jurors might hear evidence differently, or evaluate testimony through these very different filters. Sometimes heart. Sometimes head. You need to sort through which themes play to which individuals. Do you want heads or hearts deliberating your next case?
Fetterman AK, & Robinson MD (2013). Do You Use Your Head or Follow Your Heart? Self-Location Predicts Personality, Emotion, Decision Making, and Performance. Journal of Personality and Social Psychology PMID: 23773045