Persuasive Litigator

Never Rely on Self-Diagnosis of Bias

2013-05-20T11:46:17-06:00

By Dr. Ken Broda-Bahm:

Think of the situations where self-diagnosis wouldn't work very well: A police officer asking, "Do you think you were speeding?" or a doctor inquiring, "Do you believe your cancer is in remission?" Yet we still rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, "Are you biased?" A new study (Robertson, Yokum & Palmer, 2013) takes a look at whether we can rely on jurors to identify their own attitudes and know the sources of their own judgments well enough to say whether they would be biased or not. The result confirms our intuition: They can't.

Of course, those of us with a background in social science have always known that a juror's self-appraisal isn't a perfect indicator of actual beliefs or behavior. But what this study shows is that the self-appraisal is not just imperfect, it's not even helpful. Joining a number of other studies pointing in the same direction, the three researchers from the University of Arizona have systematically demonstrated the basic unreliability of this central premise of voir dire. But rather than showing that the search for bias doesn't matter, the research tells litigators, judges, and trial consultants to become more savvy and more strategic when asking about bias. And they need to stop taking jurors at their word when it comes to the critical "Can you be fair" questions. This post will take a look at the study and share some thoughts on how legal practitioners should adapt.

The Research: Don't Trust An "I Can Be Fair"

The authors are Christopher Robertson, David Yokum, and Matt Palmer, all with the James E. Rogers College of Law at the University of Arizona. Their 2013 paper can be downloaded here, and I should also point out that two out of three authors will be presenting a Juror Bias Symposium at the American Society of Trial Consultants' Annual Conference next month (June, 2013) in Las Vegas.

The study's conclusion should be striking to anyone who relies on self-report during voir dire, which is to say, every judge and most attorneys. That conclusion is that "juror self-assessments were not related to actual bias." The reason is that people are usually unaware of their own internal processes in rendering judgment. Given the choice between trusting what they say and trusting what they do, the preference in social science is to trust the latter. The law is another matter. "The Supreme Court has instructed courts," the authors note, "to use a simple method to determine whether jurors are biased: Ask them."

To test whether this works, the authors conducted an experiment in several phases. First, they randomized the groups and exposed them to either irrelevant material or to prejudicial publicity in a medical malpractice civil trial context. In phase two, they asked participants the voir dire questions endorsed in the most recent applicable Supreme Court case (Skillings v. U.S.). In the third phase, all jurors watched and decided the same truncated medical malpractice case. Then finally, in phase four, the researchers looked at what the effect would have been of screening out jurors based on their answers in phase two.

By presenting the prejudicial materials immediately prior to trial, the researchers purposefully designed the study to make it as easy as possible for jurors to self-diagnose their own state of mind. "If they are unable to accurately assess the impact of an article they read just moments before in a laboratory setting," they note, "it is even less likely that they could accurately assess the impact of an exposure occurring weeks prior."

Predictably, the authors found that the pretrial reading created a bias. Even after being instructed to base their verdict on the trial alone, exposure to the publicity effectively doubled the odds of a verdict against the defendant and more than tripled the median damage awards. Despite this profound effect, however, a clear majority of jurors (87 percent of those in the exposed condition) denied bias and instead expressed a certainty that they would be able to decide the case impartially, considering only the evidence presented in the truncated trial. Comparing the verdict rates before and after screening the jurors, the rates were nearly identical. Without screening, 52 percent of those exposed to the prejudicial material found against the defendant. After weeding out those who said they couldn't be fair, 53 percent found against the defendant. Overall, the University of Arizona team found no statistical relationship between a likelihood of bias and a likelihood of admitting to that bias.

The bottom line according to the authors: "Courts' reliance on such unreliable self-diagnoses to seat biased jurors may be a cause of wrongful convictions and wrongful impositions of civil liability."

Instead, Escape from Self-Diagnosis

This research, along with the large number of complementary studies reviewed in the article, should lead to a serious reconsideration of whether we can continue to leave jurors as the judges of their own bias. We can't snap our fingers and change the legal standard, but we can push for change and we can alter our own practices as a result.

Educate Your Judges

Appeals based on juror bias tend to center on the factual question of whether a juror was actually influenced or not. Despite this, it is surprising how little attention is given in the appeals to the social science that would answer that question. For example, though multiple courts have ruled on these issues of juror bias, the authors describe a very rigorous study looking at the lack of a connection between jurors' likelihood of being influenced by pretrial publicity and likelihood of admitting to that influence (Kerr et al., 1990). That study is now 23 years old, but it has never been cited by the Supreme Court or a Court of Appeals. Instead, the Court most recently upheld (Skillings v. U.S., 561 U.S. 2010) the adequacy of questions like, "Would any opinion you have prevent your impartial consideration of the evidence at trial?" and "Could you base a verdict only on the evidence at trial?" This is despite a lack of substantive social science evidence indicating that these questions are actually effective. "The Supreme Court has simply ignored the foregoing scientific literature," the researchers note, "and instead proceeded blithely, relying on jurors' self-diagnoses to affirm convictions and the imposition of civil liabilities, without requiring evidence about whether those self-diagnoses are reliable."

At a minimum, this current study (Robertson, Yokum & Palmer, 2013) should be cited in any motion or appeal bearing on the adequacy of a potential juror's own disavowal of bias.

Show More Creativity on Cause

Of course, attorneys seeking to remove a juror for cause need to, at some point, elicit whatever magic words your judge is applying in practice. But that doesn't mean that attorneys should reduce the standard to just that. Instead of beginning with the removal question, ask some lead-ins:

Tell me more about [this biased belief of yours]

How strongly or weakly are you committed to that view?

How easy or how hard would it be for you to simply set that aside?

Those questions are useful even if they don't get you to the goal by themselves. Once jurors have expanded on their views or committed themselves to a position, they're more likely to stick with that position when you or the judge asks them if they can be fair.

In addition, the study authors suggest a few additional ideas for more creatively asking cause questions. "Juror self-diagnosis might also be improved if they focused on the causal question, and were asked to imagine themselves in the counterfactual position of having not been so exposed." In other words, "If you were to imagine yourself not having had that experience, do you think you would react to a case like this any differently?" Another practical idea the authors suggest is asking potential jurors to answer the hypothetical question of whether the given belief or experience would be likely to bias another person. I've also witnessed attorneys somewhat sneaking past the Golden Rule objection by asking the venire members, "If you were in court in circumstances similar to my client, would you want someone with that [experience/belief] on your jury?"

Don't Let a Juror Promise Their Way Out of a Strike

Perhaps the most important piece of advice is that, even if the judge adopts a flawed standard for cause, don't replicate that same flawed standard when you are thinking about your own strikes. For example, here is a scenario I've been in several times in jury selection:

Me: You've really got to strike number 7. She said she hates companies like your's...

Client: But...she also said that she would set that aside and follow the evidence.

Me: And you believe her?

Based on this research, there is no indication that a promise of neutrality would make that juror any less biased. So when it comes to thinking of your strikes, think about their experiences and their attitudes, not their promises or their own self-assessments of how those experiences and attitudes would influence them.

The researchers add one other interesting point: Judicial disqualification doesn't depend on self-assessed bias, but instead on the standard of whether "impartiality might reasonably be questioned." That would be a far better standard to apply to cause challenges. If it can't be applied in law, then at least apply it in practice when dealing with your peremptories.

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Other Posts on Juror Bias:

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Robertson, C., Yokum, D., & Palmer, M. (2013). The Inability of Jurors to Self-Diagnose Bias 7th Annual Conference on Empirical Legal Studies Paper, 12-35

Image Credit: 123rf.com, used under license

Counter the Cheap Shot

2013-05-16T09:47:29-06:00

By Dr. Ken Broda-Bahm:

It happens sometimes in an argument: You know the claim you're hearing is false, but you also know that it sounds like it could be true, and it'll be a lot harder to refute the argument than it was to make it in the first place. Measured in time and effort, your adversary's initial argument is quite cheap while your response to it is very expensive. That difficulty is common in litigation, where truth is often on the side of the involved and analytical explanation rather than on the side of the compelling yet simplistic claim. Responding to that situation takes some care. Rather than just hoping your audience can follow the complexity, or giving up and becoming just as glib as your adversary, the trick is to help your listeners rise to the challenge. The trick is to use good teaching to make your explanation as simple as possible without being simplistic.

I'd like to use a current political example to illustrate both the problem and the solution. Through the 2012 Presidential election and beyond, we've seen continuing argument over the Affordable Care Act, also referred to (either derisively or admiringly) as "Obamacare." The new argument to emerge in the last couple of weeks is that Congress is trying to exempt its own staff from the ACA mandates. Attributing the story to "sources in both parties," Politico on April 24th noted, "high-level, confidential talks about exempting lawmakers and Capitol Hill aides from the insurance exchanges they are mandated to join as part of President Barack Obama’s health care overhaul." Based on this story, "they risk being dubbed hypocrites by their political rivals and the American public." Yes, they certainly would risk that. If Congressional Democrats were to apply the law to everyone except their own staff, it looks like both an admission of the Act's flaws as well as an appeal for special favors. The reality, however, is a lot more complicated and Annenberg's Pulitzer Prize-winning FactCheck.org has labeled the claim "false." The problem is that the reasons why it is false require a bit of explaining. This post uses this curent political argument as an example of the kinds of argument seen in litigation, where a charge is easily made, yet the refutation is difficult.

Obamacare and the Great Escape

When the story surfaced that Congressional Democrats wanted Obamacare to apply to all of America other than their staffs, that immediately created a very simple argument that could be boiled down to a quick news bite or a social media meme, like this one. Acknowledging that the real story is a little more complicated and a lot less interesting, the New York's Times' Ezra Klein carefully walks readers through the longer explanation, but definitely ends up with the conclusion (buttressed by the Annenberg fact check noted above) that Congress is not exempting their own staff from the ACA.

The story of what really happened is better told in steps:

Chapter One: The Setting. Congressional staff have a great policy to cover their health care. Unlike millions of Americans, they get a comprehensive health insurance plan for themselves and their families, with 75 percent of the premiums paid by the government.

Chapter Two: The Negotiation. The specific terms of the Affordable Care Act are worked out in Congress. In the process, the new policy is actually modeled after the program that members of Congress and their staffs already have.

Chapter Three: The Dare. Congressional Republicans have the idea to embarrass Democrats by floating an amendment that would force congressional staff to lose their insurance and go into the exchanges instead. In effect, the Republicans are saying to their colleagues across the aisle, "I dare you to oppose this..."

Chapter Four: The Calling of the Bluff. In a strategic move to deprive their adversaries of a talking point, Democrats signal their loyalty to the bill by embracing that amendment and making it a part of the new Affordable Care Act.

Chapter Five: The 'Oops' Moment. Even as they chose to change the law to require their staffs to enter the insurance exchanges, Congress apparently forgot about the 75 percent contribution that the government previously made to the staff's premiums. So the law as written would now quadruple their staff's health care expenses, not because Obamacare is expensive, but because the government is no longer contributing.

Chapter Six: The Cheap Shot. To save their staff, Congress tries to fix the law in order to prevent this large increase, leading the law's critics to charge hypocrisy: "They found out Obamacare quadruples their costs, so now they want to be exempt."

That is it in a nutshell. For those who take the time to understand the six chapters, the charge of hypocrisy is a clear case of political opportunism that is strongly at odds with the facts. But for those who just hear the charge without understanding the context, it sounds like a devastating and simple critique of both the law and of Washington culture. That problem has its parallels in litigation. The single line from a smoking-gun email message, for example: It may read horribly on face, while being much more innocuous in the context of the full story. But how do you get jurors to consider the whole story?

Even the Playing Field

It starts out feeling a little uneven when the response requires so much more work than the initial argument. But that doesn't mean you need to leave it there. The practical question is how you adapt to this uphill battle. Here are some ideas.

Call It Out. That doesn't mean you should call the cheap shot a "cheap shot," but it does mean that you should admit that it takes more time to understand the response than it took the other side to make the argument in the first place.

Make It As Easy As Possible. That is what I'm trying to do in laying out the "chapters" above. Rather than a long unbroken narrative or an analytical piece, it is a story in six bite-sized chunks. It is also effective to use graphics in simplifying the response wherever you can. For example, to make the six chapter sequence more memorable, it could be easily converted into a storyboard.

Make Your Audience Proud of the Effort. If it takes some time to understand the rebuttal, make jurors proud of that investment. If they avoid taking the easy way and instead devote the stamina it takes to follow a trickier argument, they should be congratulated for that. There is a psychological concept called "effort justification," reflecting our tendency to value things more highly when they require a greater effort. That's one of the reasons why people will often say that an incredibly difficult undertaking -- like Army Basic Training -- is "the most rewarding thing I've ever done." So it follows that jurors might place more value on the time it takes to follow a complex argument.

Test It. Once the explanation makes sense to you, it is tempting to believe it will make sense to any reasonable audience. Don't trust that belief; test it instead. Approach the task based on two variables: On the one hand, there is argument accessibility (how easy or hard is it to understand?), and on the other hand, there is argument quality (once understood, how believable is it?). A mock trial is a unique way to assess both of those variables.

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Other Posts on Rejoinder:

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Image Credit: Created via Quickmeme.com, captioned by the author

Beware the Anti-Theme

2013-05-13T09:53:35-06:00

By Dr. Ken Broda-Bahm:

We've written frequently on themes: those little nuggets of language and meaning that distill a case to its persuasive essence. As consultants, we create themes even more frequently, trying to find the right message to leverage a case's greatest strengths while minimizing or reframing its most important weaknesses. By definition, a theme is a simple message that helps an audience see your case in its most favorable terms. But based on some recent research, there is also a mirror image of that: an 'anti-theme' in the form of the condensed message that would turn off your audience and turn them away from your case. Considering these anti-themes when working on the contours of your message can help you know what to avoid and what to preempt in your trial strategy.

The study (Gromet, Kunreuther & Larrick, 2013) focuses on consumer choices in lightbulbs and found that buying behavior could be substantially reduced in some audiences just by adding a single, apparently positive message to the packaging. While the question of "What sells an audience?" naturally garners much academic and practical attention, the parallel question of "What kills the sale?" should merit equal attention. And this focus fits well with a goal I've written about before: the need to use those forces that attract an audience toward your message (alpha strategies), as well as the need to address the forces that potentially repel an audience from your message (omega strategies). This post applies this approach-avoidance perspective to the question of themes. In addition to looking at the research on the words that can wound your cause, I'll also share some of my own thoughts on common anti-themes that could play a role in a jury's or judge's response to your case.

The Research: When Can Your Message Harm Your Case?

Proving that you can learn about social science in just about any setting, I learned about this research from a recent Colbert Report. The article, appearing in the considerably more credible source -- at least from an academic perspective -- The Proceedings of the National Academy of Sciences reports on two studies conducted by researchers from the Wharton School of the University of Pennsylvania and Duke University. For the first study, the researchers asked 657 people to reveal their political leanings, as well as their habits and specific responses relating to the purchase of energy-saving products. From that study they found, unsurprisingly perhaps, that those who leaned in a conservative direction were more likely to buy such products if they were advertised as cost-saving investments, while those on the more liberal end of the spectrum were more likely to buy the products when they were advised as solutions to environmental problems.

But the second study is where it gets more interesting. Using an additional 210 participants, they gave each two dollars in order to purchase a lightbulb. They could buy a conventional incandescent bulb for fifty cents, or they could buy a compact fluorescent bulb for a dollar and fifty cents. In each experimental condition, the higher priced bulbs were the same, but the pitch for them changed. In one condition the bulbs were pitched as good for the planet, and in another they were pitched as a money-saver. What the researchers found was that liberal participants were likely to buy the compact fluorescent bulb regardless of which appeal was used, however conservative participants were significantly less likely to buy the bulb when it was paired with an environmental message.

You might think the message that something "protects the environment" is a positive message, or at worst a neutral one, so it might be hard to imagine how that message would reduce the product's appeal. The reason according to the researchers has to do with how people supply a frame. Based on past experience and the example supplied by other messages, conservatives have come to associate "environmental" terms with liberalism, causing them to shy away from anything connected to those appeals. So rather than just failing to help, the theme makes things worse for that audience, making it an anti-theme.

What Are Some Common Anti-Themes?

The same thing can happen in litigation messages. Juries and other legal audiences are obviously not uniform, and that fact typically leads us to advise clients to target the higher risk audience. That audience can be turned off by some of the very things that work best for your more favorable audiences. Here are a couple of examples:

Plaintiffs Should Avoid These Implied Messages:

"This case is about sympathy..." For many jurors, "sympathy" is a Devil Term representing everything that they presume to be wrong with the American tort system. For many jurors, sympathy is what plaintiffs rely on when the facts, the evidence, and the law don't support them. To make a decision on sympathy is to set aside reason for emotion, paving the way for the worst kind of abuses in the jury system exemplified by a distorted image of the hot coffee case (Liebeck v. McDonalds Restaurants). If the jury gets the message that the plaintiff -- or the defense for that matter -- is relying on sympathy, then expect their skepticism to rise by several orders of magnitude.

"We chose this Defendant based on deep pockets..." In addition to assuming that plaintiffs leverage emotion and sympathy, the tougher audience for plaintiffs also tends to assume that lawsuits are motivated by deep pockets. The idea of targeting a company based not on their responsibility for the loss but based on their ability to pay for it, also speaks to those suspecting the worst about America's legal system. Emphasize too much of the "they're a big company" message and jurors may start to believe that this fact, and not liability, is why the company is in the case.

Defendants Avoid These Implied Messages:

"We just followed the law..." Of course, defendants need to show adherence to laws, but it shouldn't stop there. The company that did the minimum or simply toed the line on regulations, especially those designed to protect health and safety, is not fully taking responsibility. Jurors who present a worst case for defendants will often expect parties to do not just what is legal, but what is right. A responsible company would want to do more than adhere to regulations. They would want to fully protect their customers and partners, and that is most credible when it means going above and beyond what the law requires.

"We didn't act responsibly, but that didn't cause any harms..." Anytime your case depends on jurors finding liability but cutting the plaintiff short when it comes to causation, you know you have your work cut out for you. Jurors are notoriously prone to jump the gap between liability and damages. In some ways that makes an intuitive kind of sense: "So, you did something wrong, did you? Okay, let's talk about how much that's going to cost you." Some jurors can get to the point of appreciating causation, but it takes an analytical step that is quite often skipped. So in most cases, a party acknowledging liability is sending a message that it deserves at least some punishment.

So How Do You Address Anti-Themes?

Those are just a few examples, and most will be specific to the facts of your case. But once you know what your own anti-themes are likely to be, what do you do about them? Beyond deciding to avoid them, are there steps that would help jurors resist them more effectively if they do emerge? Yes, there are. Once you think it is likely that an anti-theme might be invited in through an adversary's messages or through jurors' own preconceptions, you can attempt to inoculate starting in voir dire and continuing through your trial message.

To think about what inoculation against an anti-theme might look like, consider the scenario used in the study. For example, when appealing to the conservative lightbulb buyer, what if a spokesperson led with something like this:

Some people say these bulbs are good for the environment and I don't know about all that. I just know that over the life of this bulb, there will be a whole lot of money staying in my pocket instead of going to the power company.'

That would be a way of saying, "yes, we know there is a theme out there that might turn you off, but that is not what my appeal is about." You could take the same approach as a plaintiff trying to avoid the perception of a sympathy appeal:

You know, at the heart of this case, there is a terrible injury, and I know it is only human nature that some will be sympathetic to that, and it is also human nature that some of you will harden yourselves against that not wanting to be moved by sympathy. And that response is fine, because this case is going to be based on clear facts, clear evidence, and clear law...not on sympathy. I'm not asking for that and neither is my client.

A broader point to appreciate in this discussion: Cover the negative and not just the positive. Instead of simply adducing reasons and evidence for the jury to go along with you, you need to think as well about the barriers and reply to the preconceptions, good and bad, that are likely to be on your target audience's minds.

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Other Posts on Theme:

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Gromet, D. M., Kunreuther, H., & Larrick, R. P. (2013). Political ideology affects energy-efficiency attitudes and choices. Proceedings of the National Academy of Sciences.

Image Credit: By the author

Check Your Jurors' Power Level

2013-05-09T09:25:44-06:00

By Dr. Ken Broda-Bahm:

An Iowa jury just handed down a $240 million verdict on behalf of 32 mentally disabled men who lived and worked for decades at a turkey processing plant and were paid just $65 a month. That verdict, the largest ever in an EEOC case, captures the jurors' feelings about such blatant exploitation, but in addition to anger, the judgment also signals one other critical ingredient: a feeling of power. As one juror noted, she wanted to send a message: "We wanted to let people out there know that, in the future, this cannot happen." That sense of power can also be evoked when a jury returns a defense verdict. For example, last year a Manhattan federal jury found in favor of Citigroup and against the Securities and Exchange Commission. In that case, the jurors noted, "We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct." So they issued a statement along with their verdict which was read aloud by the judge: "This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary." In other words, "Change the law and we'll get them next time."

What unites these examples is that in each we are hearing the voice of an empowered jury. In the right circumstances, a jury's verdict is not simply an answer to a legal question, it is a message delivered by a body that has come to feel that it has the legitimate power to deliver that message. Power, or more accurately the feeling of having it, is an important dimension to consider in analyzing any audience. So this post is going to take a closer look at this concept of juror power. Of course, a jury has real power, subject to the limits of appeal, but in given situations they can be either more or less sensitized to that fact. Becoming aware of that power can lead to more dramatic decisions, as in the examples above, but based on some new research, it can also effect some important changes to the ways jurors think.

Power and Punishment: The Research

Scott Wiltermuth and Francis Flynn, business school professors at USC Marshall and Stanford respectively, wanted to look at power in a business setting. Noting the perception that leaders often become infused with a stronger sense of right and wrong and come to perceive actions with much less moral ambiguity, they also noticed the same thing in classes based on the degree of perceived power. "We noticed in our MBA classes," Wiltermuth recently told ScienceDaily, "that the students who seemed to feel most powerful had these absolute answers about what's right and what's wrong." So, they wanted to test out the hypothesis that greater power leads to a "moral clarity" that results in greater punishment. Conducting four experiments (Wiltermuth & Flynn, 2012 - You can download the article here), they manipulated perceived power by giving individuals the ability to control resources and administer rewards and punishments. Then they presented the participants with scenarios involving transgressions of some kind. They found that those participants who were made to feel more powerful were more likely to say either "yes, the behavior is immoral," or "no, it is not immoral," but much less likely to say "it depends." The authors noted that their findings "imply that once you obtain power you become more likely to see things in black-and-white" and less likely to appreciate shades of gray. They also found that once they did perceive wrongdoing, the more powerful and "morally clear" participants were more likely to hand down severe punishments.

This finding has some clear implications for litigation since many situations in trial involve one party working hard to create that black-and-white sense of right and wrong, while the other side is working equally hard to encourage jurors to appreciate the many shades of gray and to adopt a healthy sense of doubt. So whether you want to foster or downplay a jury's sense of their own power will depend on your goals in the case. Naturally, venues and judges vary widely on what will escape objection in openings and closings, but here are some thoughts on ways to either emphasize or de-emphasize the variable of juror empowerment.

Build Up Power to Encourage 'Moral Clarity'

A jury that is helped to see and appreciate their own power are more likely to render a decision that is clear, unequivocal, and dramatic. They are more likely to reach a result that sends a message rather than one that splits the difference. So what provides jurors with that sense of power?

One, remind jurors of their power: At this point, you are the ones who will be making the final decision, so you have the power to either set things right or to leave them where they stand.

Two, frame their decision in powerful terms. You'll be answering these questions on the verdict form, but more broadly you'll be answering another question that is just as important. And that is the question that is on my client's mind: Do we as a society tolerate acts like these or do we shut them down?

Three, focus on impacts and consequences. The verdict isn't really the end of the story, it is the beginning of it. That is because the next day, and all of those that follow, will continue to be influenced by the judgment that you make here.

Play Down Power to Encourage Nuance and Relativism

Of course, one doesn't always want a jury filled with moral purpose. That is not only to escape the brunt of a verdict for the party advocating change (a plaintiff or a prosecutor), but it may also be relevant for any party whose case depends on some appreciation of ambiguity and fine distinctions. A plaintiff pursuing a theory that might seem implausible on face (e.g., McDonald's hot coffee) might not want to speak to the jury's ability to make a broad statement because that statement might well be a rebuke. Instead, that party might be more interested in playing down the "message" and getting the jury to see the controversy within the narrower frame of simple legal responsibility. So how do you dial down the power?

One, emphasize the limits of the decision. A jury isn't tasked with the goal of making everything right, because no one - at least no one on this earth - can do that. Instead, a jury is tasked with just answering some specific questions.

Two, focus on instructions. And these questions are legal questions, not broad personal matters of good and evil or right and wrong, but much more specific legal questions of what the law -- not me, or you, but the law -- punishes or doesn't punish.

Three, focus on the judge's role. As a jury, you are the final step in this process but, trust me, there have been a lot of other steps. The judge has at this point narrowed the controversy to just the issues you see on your verdict form and, when you are done, the judge will enter a verdict on them.

Of course, none of this advice takes the form of an absolute black and white statement (...because I don't have that much power). Instead, it is a matter of degree and emphasis. For example, if you are trying to empower your jury, you would still want to emphasize the legal instructions. But you would want to give a little more salience to the "send a message" components than you give to the "answer a legal question" components. In addition, in suggesting that you can play up or play down the elements that draw attention to jurors' power, I'm not suggesting that you can tune your jury like a fiddle either. Jurors have their own sense of power, and that is often independent of an attorney's control. Still, attorneys should do what they can to influence this variable as they try to influence all the other variables in persuasion. A jury's understanding of their own power -- either diminished or magnified -- can be an important part of your strategy in trial.

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Other Posts on Factfinder Power:

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Wiltermuth, S., & Flynn, F. (2012). Power, Moral Clarity, and Punishment in the Workplace. Academy of Management Journal.

Photo Credit: Justgrimes, Flickr Creative Commons (edited by author)

See the Process and Not Just the Product in Deliberation

2013-05-06T12:23:04-06:00

By Dr. Ken Broda-Bahm:

Over the weekend I gave a presentation at a law firm retreat in Palm Springs. The presentation drew from a recent mock trial in an insurance dispute and the deliberation video clips I was playing could've been seen as a parade of mistakes: jurors ignoring instructions, flagrantly applying their own experience and knowledge, and framing the dispute within their own terms instead of the frame provided by the presenting attorneys. After about an hour of this, one attorney in the audience spoke out: "Do you still," he asked, "have faith in a jury to deliver a good verdict?" In response I said, "Yes, I do," not only in reaction to current political questions over whether the jury can do the job, but also based on a generation or more of social science research summarized and advanced in an article currently on my nightstand. In short, even when we might disagree with the product that a given jury hands down in the form of a verdict, jurors are following a process that is valid, valuable, and to at least some extent, predictable.

The article on my nightstand was written by two communications professors from University of Colorado and Pennsylvania State University (Sprain & Gastil, 2013). They reviewed the literature on what it means to deliberate and conducted their own study focusing on the survey responses provided by more than a thousand jurors post-trial. From that they developed an interpretation of the 'rules' jurors apply when trying to come to a verdict. The article shares a set of simple but important findings and conclusions that should not only increase our faith in the jury, but should also inform our practice when dealing with jurors. This post takes a look at the study and spotlights four of the conclusions that should matter most to the practicing litigator.

The researchers (Sprain & Gastil, 2013) sought to depart from much of the research on juries focusing on inputs (arguments and appeals) and outputs (evaluations and verdicts), and instead look at what happens in between: jurors' own process as they work toward a result. To do this, they wanted to prioritize jurors' own self-understanding of what they were doing in the manner of an "ethnographer aiming to study the role of communication in a ritual ceremony."

Using a dataset of post-trial surveys conducted on 1,206 jurors who had deliberated in a total of 289 trials in King County Washington, they performed a content analysis of the jurors' open-ended responses describing the experience. Based on this review, they say, "It appears that jurors have a somewhat broadly shared cultural understanding of how to conduct jury deliberations." Jurors support and apply deliberative rules that are rigorous and democratic, and they value open-minded, considerate, and respectful communication in order to get to a common verdict. Importantly, this is an article by communication theorists written for communication theorists, but there are also some very practical implications that I want to make sure litigators don't miss.

Finding One: Jurors Take Jury Service Very Seriously

"The jurors in our study," Sprain and Gastil note, "took deliberation very seriously, expressing the importance of paying attention, making the right decision, and participating in deliberation." Sorting the responses, they found that one of the most frequent categories focused on the ideals of jury service and the deliberation process. These comments referenced the notions that "deliberation should be fair, thoughtful, and objective." It should embrace disagreement, but in a way that is not confrontational. Participants should be thoughtful and open to different points of view and, most of all should be working together. Taken as a whole, these comments reflected a view that "jury deliberation should be not only analytically rigorous, but also democratic -- with speaking opportunities for all jurors, open-minded consideration of different views, and respectful listening oriented to creating mutual understanding." In other words, even as they might try to escape jury duty during selection, once they are picked, it becomes an honor and a heavy obligation.

Recommendation: Play to These Ideals in Your Presentation. In addition to thanking jurors for their service or repeating what the judge has already said about their important responsibility, take a moment to add on to that sentiment in a substantive way and tie these ideals to the work jurors will tackle in the end:

We understand that you're not likely to take either my word, or opposing counsel's word, at face value. Instead, we understand -- and appreciate -- that you are going to want to look at everything in a way that is thorough, and careful, and fair. And we know that each of you will bring your own voice to the task. And that is how it should be, because your decision and your process are both very important.

Finding Two: Jurors Seek a Process and Not Just Instructions

Citing research showing that jurors take the legal instructions seriously and aim to give them great importance, Sprain and Gastil note that legal instructions don't provide jurors with rules for interacting. So in addition to the law, jurors also seek a set of norms that will guide their participation in the deliberative process. As one juror opined at the end of service, "It would have been helpful to have some suggested protocols or procedures to follow to ensure a fair and nonconfrontational deliberation process."

When conducting a mock trial, we try to give mock jurors that protocol, reading not only the legal instructions but also reminding them to speak one at a time, to try to share reasons before voting, and to make sure they're hearing from everyone before finalizing a point. Part of that reason is pragmatic: In the time-limited setting of a mock trial deliberation, we usually don't want to spend precious time watching mock jurors try to figure out those norms on their own. In a real trial, a judge won't similarly instruct them, but that need for at least some road map remains.

Recommendation: Subtly Suggest a Process. You can't give your jury a to-do list for deliberations, but you can in more subtle ways set their expectations for what is to come, as the example does above. In addition, taking smaller moments to say things like, "and I know you'll want to look at this closely," or "you might be asking yourself in deliberations what should this party have done instead?" can also help to sketch out an image of what jurors should begin doing once the door to the jury room closes.

Finding Three: Jurors 'Deliberate' Both Individually and as a Collective

Pointing to research (like Goodin and Niemeyer 2003), the authors investigate the idea that deliberation consists of both internal processing at the time the information is received and discussion later. This would seem to be true especially for a jury where there is a long period of time when they are receiving information and a comparatively shorter amount of time when they are discussing it. Looking at the survey responses, Sprain and Gastil find that "Jurors understood that they were to wait until entering the jury room to discuss issues, this does not mean that they simply acted like 'sponges' observing the trial without judgment." Citing examples of jurors disclosing their immediate reaction to information, it seems clear that jurors are reacting at the time, not somehow storing the information in order to react later. "Consideration without (or prior to) interaction is part of the deliberative process," they found, "It is also clear, however, that this is not enough for the average citizen, at least in the context of a jury." That is, the final conversation still plays a role and a jury deliberating together is still likely to refine or even depart from what the verdict would have been if it was the result of individual polling.

Recommendation: Present as If Your Jury is Constantly Deliberating (Because They Are). I've written before that your whole strategy should be oriented to the reality that your fact finders are active processors and not passive recipients of your message. That means thinking about how your fact finder participates in the persuasion and it means adapting to the motivation that they're bringing to the task. Instead of thinking, "We'll need to address that before they deliberate," litigators need to realize that, in effect, they're deliberating now and need to continuously assess and adapt to expected reactions as close as possible to the moment those reactions occur.

Finding Four: Jurors (Unsuccessfully) Seek to Bracket Out Emotions

While it can be difficult in practice to distinguish between use of reason and emotion during deliberations, that doesn't prevent jurors from trying. As one noted, "I was trying not to focus on my emotions as we were not supposed to be biased in our decision making." Another added, "I felt empathy for both sides of the case, but you have to bottle it up! That is the most challenging part." But based on other research reviewed in Sprain and Gastil's article, there is a question of whether jurors actually should bottle it up because emotion motivates jurors to devote energy to the task and to take part in deliberation. That includes providing an incentive to generate reasons, suggesting that there is no obvious dichotomy between reason and emotion when it comes to deliberations...or any other human activity. As another juror admitted, "I couldn't say 'no' emotions simply because emotions are, I believe, a part of the human condition." Reviewing the comments, Sprain and Gastil uncovered many statements providing an emotional reaction to the content of the case: appreciation, distaste, empathy, or sympathy. And apart from being inevitable, this isn't a bad thing. "Our findings suggest that emotion can not only facilitate deliberation in this sense, but can also reinforce more fundamental deliberative norms."

Recommendation: Speak to What They Seek, But Adapt to What They Do. Even as it remains impossible, jurors will believe that they're supposed to -- and many will think they successfully have -- set aside emotions. For that reason, wise litigators will disclaim emotional appeals (This is evidence, not emotion...we want you to base your decision on facts, not sympathy), while still adapting to the emotional connections that jurors will inevitably make by telling a story that speaks to the motivations that will favor your side of the case.

So that answer is a little longer than the one I gave in the Palm Springs conference room. But the important point is that there are good reasons to have faith in the jury's process of deliberating. The less we treat that time as a black box, and the more we conduct and apply research on what is actually going on in the deliberation room, the closer we come to really understanding what the jury is up to.

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Other Posts on Deliberations:

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Leah Sprain and John Gastil (2013). What Does It Mean to Deliberate? An Interpretive Account of Jurors' Expressed Deliberative Rules and Premises Communication Quarterly, 61 (2), 151-171

Image Credit: ericskiff, Flickr Creative Commons