Category Archives: Interviews

Powers of Confirmation Bias: Juror Interview Clips

Confirmation bias is the tendency for a person to distort information to fit with existing beliefs. Any information that conflicts with those beliefs is either forgotten, dismissed, or reinterpreted to be consistent with the beliefs. While most attorneys today are well versed enough in social science to understand this phenomenon, it may come as a shock to see it put into practice. Without revealing any confidential information, I’d like to share some results of post-verdict interviews I conducted on behalf of an attorney I know well. The basic fact pattern was a multi-car collision with two defendants. One defendant was listed as being at fault in the police report. Disputes were mostly over causation and damages. The result was a defense verdict on both counts. The attorney hired me because he was shocked at the verdict with so much liability evidence. I should preface these juror quotes by stating that this is a good attorney. He is not a starter lawyer and he knows of David Ball techniques. Some of the things the jurors mention I can guarantee are not true. The purpose of my sharing this is so that you can see just how far confirmation bias will go. I will focus on just one of the jurors for purposes of proving the point.

The interview started out fairly standard. She I asked what she remembered most and she began walking me through the trial and the actions of the defendants. Fairly early on in the interview, she mentioned,

“Based on what the defense brought up, it was clear [the plaintiff] wasn’t being completely honest…I could see specific instances in her testimony where things weren’t lining up with what she said. That made me question her credibility.”

She later mentioned,

“The plaintiff’s attorney went on and on about how much chronic pain she was in and we never thought she wasn’t in pain but in one line of questioning by the defense they asked her how many times a week she has neck pain and she said 1-2.”

At this point, I knew credibility of the plaintiff was a major issue. It was brought up more than once by more than one juror and seemed to continue to build as more and more inconsistencies showed up. While the juror about other things of importance such as the jury instructions, I knew that a lying client is hard to overcome and that everything else she told me was likely skewed by this belief. As proof, when I asked about the attorneys, the juror started to talk about the plaintiff’s attorney. She stated,

“As we went through trial, other jurors brought up that he had some signals he was giving to the plaintiff and possibly some other witnesses and I started watching and noticed he would roll his eyes or subtly shake his head no or he would cross his leg and dust something off his pants and one of the other jurors said to pay attention to when he does those things, how the witness responds. When he rolled his eyes, the plaintiff would respond that she didn’t recall or if he moved his head to the left in a shaking motion, she would answer no…I got the feeling he was trying to lead her answers which again went back to me establishing her credibility.”

I know this attorney did no such thing, but it fit with some of the jurors’ views of the client and of trial attorneys in general so they believed it and used it to further those views.

Later in the interview, she again mentioned issues of credibility. Although the plaintiff saw only treating doctors and none were referred by the attorney, jurors selectively heard that the doctors were all referred by the plaintiff’s attorney:

“It seemed too convenient that she kept going back to the doctors who were hired by her attorney.”

I was not able to get a hold of many other members of the jury so I suppose I have no way of knowing for sure if there was a rogue juror on the panel or anything else suspicious but I saw no signs of anything other than jurors trying to come to a decision they felt was right. The plaintiff’s inconsistencies killed her chances at recovery and even went so far as to have jurors believing the plaintiff’s attorney was in cahoots. I share this information to make you aware of just how dangerous inconsistencies in a story can be. Coupled with a view that trial attorneys are lying manipulators to begin with and you will have a very hard time winning.

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From the Mouths of Babes [Jurors]

This post is a plug for focus groups – not necessarily done by me, although I welcome the opportunity always – but done by anyone who knows how to do them well and get you reliable results.  This post is a collection of quotes from a couple of my past focus group projects.  I have left out all party names to protect confidentiality.  I hope to convey the importance of doing focus groups before you get surprised at trial.  What follows is a brief description of the case and then some juror comments:

Case Background: Medical malpractice case against a hospital.  Plaintiff lost large amounts of blood during a 5-6 hour surgery.  Surgeon and nurses did not find or fix the leak for a while.  Plaintiff died a month later still at the hospital of kidney failure related to the blood loss.  Plaintiff had pre-existing conditions and was overweight.

  • From the Mouths of Jurors: “I think she had a death wish because she was in bad health anyway and she brought in a living will when she entered the hospital.  If you have a living will and you bring it to the hospital, you’re giving up on life.” [Note that this issue showed up in both focus groups with 1 or 2 jurors in each group believing the Plaintiff wanted to die and therefore awarding no damages]

Case Background: Brain injury from car accident case.  Plaintiff still holds a job as a professor at a community college.  All doctors and all neurological testing shows brain injury.  Pre-existing anxiety which was controlled by taking Xanax.

  • From the Mouths of Jurors #1: “I think he had a drug problem.  Taking Xanax that long over time could cause a brain injury or his symptoms.”
  • From the Mouths of Jurors #2: “I think he had a drinking problem.  My father was an alcoholic and he died from the alcohol use.  He often forgot things too so I think the plaintiff’s issues are from drinking.” [No evidence of drinking at all]

Case Background: Car accident case with back and neck injuries.  Plaintiff is on morphine multiple times a day to control the pain.

  • From the Mouths of Jurors: “I think she wants money to be hopped up on morphine her whole life…she’s on morphine for dramatic effect and will probably quit when the lawsuit is over.”

[Remember this case next time you assume that jurors will believe your client is severely injured because of the amounts of pain medication they are on]

Please don’t do disservice to yourself or your clients.  Jurors will often latch onto issues in your case you didn’t even know existed.  By finding out what those issues are ahead of time, you will save yourself a surprise verdict or simply make a more compelling argument.

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Acts vs. Omissions – A Small But Powerful Difference

You’re creating the story of your case for opening and trial.  You have a situation where a business allowed an unsafe condition to exist on their land and as a result, your client got hurt.  You get to the point in opening where you start to tell the story and you say, “the defendant failed to fix the problem.  They never put up warning signs…”  You may not have realized it, but you have already compromised your story. 

There are two principles to keep in mind when telling a story, whether in opening or questioning witnesses or closing:

1. Acts are more powerful than omissions because jurors forgive omissions much easier than conscious acts or choices.  In focus groups and juror interviews, you consistently hear jurors say “well, it was just an accident” or “anyone could forget that” and so on.  This is because as humans, we understand that no one can think of everything every time, so we let people off the hook for forgetting something.  If the same scenario is framed as a conscious choice, however, it is much harder to forgive because it feels deliberate and intentional.  So, in the above example, you should tell the story as “the defendant sees the pot hole.  He examines it and CHOOSES to walk inside.  He DECIDES to start setting up his shop for business.  Six hours later, the plaintiff comes to shop at the defendant’s store….”  This sets up jurors to see that the defendant knew about the condition and CHOSE to ignore it and do other things that were more profitable instead.  This applies to any type of case:  “the driver chose to drive through the red light” or “the doctor chose to ignore patient safety rules when he did x, y, z.” 

2. The unconscious mind does not know the difference between a positive and a negative and therefore will always interpret something as the positive.  For example, if you say “the driver did not stop for the red light,” the unconscious crosses out the negative and only hears “the driver stopped for the red light.”   Whenever possible, frame your sentences as positives, such as “the driver saw the red light and kept driving.” 

These may seem like small changes, but to the unconscious mind, they make a huge difference.

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Proof of the Power of a Story in Opening

Time and again, you have probably been told to “tell a story” during opening.  People remember things best in story format.  But not just any story – it has to be told right.  There can’t be too many details or the story structure gets lost.  Each sentence has to move the story forward in time; otherwise, you’re telling details, not a story.  It must move chronologically (with very few exceptions).  Sometimes it is nice to hear proof of what happens when one side tells a coherent story and the other side does not.  Below are excerpts from post-verdict juror interviews I have recently done on a case.  The plaintiff’s attorney told a story and the defendant did not (or at least not a coherent one that followed the rules of storytelling).  I will remove any names or case information to preserve confidentiality.

Question:  Tell me about the Plaintiff’s opening

Juror 1: I remember initially it seemed kind of goofy because they had already said these people admitted liability and they painted this dramatic picture, which I’m not saying it wasn’t…I understand now why he did it because he was able to give a picture of all the inter muscular damage that was probably done at that particular moment.

Juror 2: It was long.  He went over the details of the case and I was confused because the defendant admitted he was wrong.  It was a case about a man whose life was drastically altered.

Question: Tell me about the Defendant’s opening

Juror 1:  It kind of felt to me like he just didn’t have a story he wanted to tell.  It was more like choppy statements than a story.

Juror 2: I honestly don’t remember specific details of it.  He just tried to paint the picture that none of this was  connected with [the plaintiff’s] problems now.

Notice how neither juror remembers much about the defendant’s opening.  Without a good story, their minds had nothing to grasp hold of.  When you write your opening, make sure the story comes through.  Follow good rules of storytelling and jurors will remember what you say.  They will view the rest of the case through that story lens and shape evidence in their minds to fit with it.  If you do not give them a good solid story on which to base the rest of their evaluations of the case, you lose a lot of leverage.

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Tips for Conducting Post-Trial Juror Interviews

When trial is finished, and particularly if it did not go well, you may be inclined to conduct some post-trial interviews with the jurors.  Since jurors may be inclined for various reasons (discussed below) to either lie to you or give curt answers, you need to be aware of some interviewing tips and methods if you are going to get useful, accurate answers to your questions.

The following are barriers to getting full and honest responses, followed by methods to help eliminate these issues:

1. Jurors just want to go home.  Immediately following the verdict, jurors may agree to sit in a room with you to answer questions but in many cases, they really just want to go home and get back to their lives.  They may not speak up in a group in order to make the interview progress more quickly.  It is often better to contact jurors in the days following the end of trial and ask for some of their time over the phone (or in person if they would prefer) at a time that is convenient for them.  Do not conduct your phone calls during weekday evenings or on Sundays at first.  If you are not getting a response, you can try those times and leave a voicemail.  If you have trouble getting jurors to return your calls, you may want to offer them $50 cash as an incentive.

2. Jurors don’t want to tell you the truth to your face.  No one likes saying bad things about someone to their face.  If jurors did not like you, they may say so in some fashion during post-trial interviews if you are the one interviewing them, but trust me, they are much more candid with a third-party doing the interviewing.  Even better if they do not know which side the person calling works for.  If you don’t have the money to hire a trial consultant to do the interviews for you, have someone from your office call from a non-office phone.  If jurors ask who the caller works for, have them simply explain that they are happy to answer that and any other questions at the end of the interview, but because it can unconsciously bias the interview itself, they are not allowed to answer that up front.  Most jurors understand that and will continue with the interview.  You will be surprised at what they will say.

3. Your interview style leads jurors instead of opening them up to answer honestly.  The rules for interviewing are similar to those for voir dire.  Do 10% of the talking.  Ask open-ended follow-up questions (“Tell me more about that” or “What else?”).  Keep asking those questions until the juror says “that’s really all.”  Do not be afraid of silence.  I will often forewarn jurors up front that I may ask some questions that sound repetitive but it is not because I’m not listening to them; rather, it’s because some jurors don’t think of things the first time you ask or they interpret questions differently so I often get different responses.  I have yet to have a juror be angry or frustrated with me asking them to “tell me more” so often.

4. Make sure your questions don’t give you away.  If you want honest answers, you have to make sure jurors do not know which side you work for.  If you are consistently asking questions to understand why you lost or what you did wrong but do not balance the interview with questions geared at the other side, jurors will quickly pick up on your motive.  Ask what jurors thought of the plaintiff’s attorney, followed by what they thought of the defense attorney.  Ask what more they wanted to hear from the plaintiff, followed by what more they wanted to hear from the defendant.  Balance every question on both sides.

5. Ask the all-important end question.  At the end of the interview, ask if there is anything you have not asked about that they think would be important for you to know.  Some jurors will say “no,” some will say something about low juror pay or something else you may not be interested in, and some will say something really valuable.  Do not assume that you have asked all the right questions.

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