Category Archives: Jury Research

March 9, 2012 · 6:46 pm

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.

Leave a comment

Filed under Interviews, Jury Research

February 21, 2012 · 3:53 pm

Why Should You Keep Old Jury Lists?

This post is not strategy-related, but as a practical matter, I often run into an issue when working on focus grouping a case that can be easily solved.  I’d like to save you the money and headache.  It’s very simple.  Please keep every jury list you get from every trial in every county (as long as they list addresses of the jurors).

The reason is simple.  I often get called in by attorneys on cases that do not have the budget for a large focus group but where the attorneys really want to see what jurors will do with the case.  There are many ways to cut down on the cost of a focus group.  One of those main ways is to cut out the recruiter.  I mean no disrespect to recruiters out there – they do an amazingly hard job and when there is room in the budget, I 100% recommend using one because they can get random recruits and screen better than any other method.  That said, if you don’t have the money, it’s better to work around that cost and still be able to run a focus group.  While you can recruit jurors off Craigslist or putting out a newspaper ad, I always forewarn attorneys that those methods will not yield a random sample.  People who go on Craigslist to look for odds and ends jobs are often young and unemployed – not to mention that they have a certain  mentality that may differ from your jury pool.  Newspaper ads tend to attract the older, retired crowd, which is fine for a couple of your jurors but again, this will not match your demographics.

My preference, second to affording a recruiter, is to recruit by mailing letters to random people in the county and having them call in to get screened.  When I do this work for attorneys, I cut the recruiter’s fee in half.  And if you’re not hiring someone like me, you can always do this for yourself (although be sure you know how to properly recruit and screen or you may slip up on one word and not know you’ve tainted the focus group).  The problem is always where to get the list of names.  Listings from the DMV and voter registration would be wonderful as that is how jurors are chosen, but personally I’ve had very little luck getting anyone to release those records to me.  A phone book is okay but again, you get many older people responding and may have to fill in some of the younger slots by other means. 

And this is where my suggestion lies.  If you have old jury lists, those are lists of people randomly chosen from that county – a perfect representation of the demographics you are after.  If you keep all your jury lists (and you will need multiple, trust me, as you probably need to mail out 500 letters to get 20 good participants), then when a case comes up and you need to run a focus group either with a consultant (though I may be the only consultant that would take on the recruiting job this way) or by yourself, you will have the lists you need to cut down on costs. 

One word of caution: Do NOT mail to the same people more than once.  If you’ve used a juror once, do not re-use them.

So, bottom line, please keep your jury lists.  And if you have any attorney listservs you participate in, you may want to spread the word or have your trial lawyer associations pile lists so that attorneys can borrow from them when needed.

Leave a comment

Filed under Focus Groups, Jury Research, Trial preparation

Tagged as , , ,

February 6, 2012 · 4:26 pm

How to Use “Herd Mentality” to Your Advantage

As advanced as humans are, we are still primitively just mammals belonging to a herd.  Animals and people stay in herds because it provides safety.  If one member finds danger, the rest of the herd is alerted.  Think about being out in the African desert completely alone.  Now picture having a group of people there with you.  I would suspect your stomach felt very different imaging the two scenarios. 

Jurors are no different.  In mock trials and focus groups, I ask jurors what other information they think would be helpful.  There is often one juror who wants to know what other jurors in similar cases decided – how much money did they give?  The want to know the precedent.  Why?  Because they want to follow the herd. 

You can use this mentality to your advantage in several ways.  Some of those methods are taught in “Reptile” seminars with David Ball and Don Keenan and I would suggest attending to get more plaintiff-specific methods.  Here, I want to mention some basics. 

1. When talking to experts or witnesses, use the word “us” instead of “the jury.”  For example, “Dr. X, can you explain to US how the blood vessels became clotted?”  This puts you in the same boat as the jury and unifies the jury as one group.

2. Get jurors to see their own commonalities.  You can start to unify jurors as a group early on in voir dire.  Explain how most people who get jury summons don’t want to come but they all have something in common – they all showed up.

3.  Frame questions for your experts in a manner that hints at what others may think.  For example, ask experts, “so, most agree…?”  This hints to jurors that others think one way and to be part of the herd, they better follow.

4. In closing, tell jurors “I wish I could tell you what other jurors in cases like this do, but I’m not allowed to.”  This insinuates that what you say is in line with what other juries say or do.  Greg Cusimano is very good at this method so I suggest reading up on his works as well.

To finish it off, I’m posting  a video purely for entertainment purposes but it certainly demonstrates herd mentality:

http://www.youtube.com/watch?v=lYTBOhicf4g&feature=player_embedded

2 Comments

Filed under Focus Groups, Jury Research, Misc, Uncategorized, Voir Dire

Tagged as , , , ,

January 12, 2012 · 3:22 pm

What Do Jurors Care About?

Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented?  It’s highly probable.  It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.

This blog is named “jurorproof” for a reason.  Most everything I post about has to do with proving your case to jurors.  That may sound obvious, but please make sure you understand the significance.  There is a huge difference between “legal proof” and “juror proof.”  Legal proof is what you have to prove to meet the elements of the claim.  The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form.  But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner. 

For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury.  Jurors may care about your client’s hopes for the future.  They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups).  They care that there was no secondary backup system for files even if not required.  These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.

In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story.  Is this just in mock trials?

Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries.  The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie.  Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds.  But that’s not what matters to them.

So what does all of this mean for you?  For one, it means that you need to fill in gaps in your story before the jurors do it for themselves.  One thing that makes for a believable story is that it is comprehensive.  The less gaps the better.  I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial.  But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves.  This is something they will care about.  Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof.  Deal with it in voir dire.

Secondly, do some research.  Find out ahead of time what juror proof for your case is.  The only way to do this is to talk to real people – people who match the demographics of your trial venue.  If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors.  Go to a mall and talk to strangers about your case.  Buy them a coffee or ice cream in exchange for their time.  Without that feedback, you would never know that having a living will means having a death wish to jurors, for example. 

Don’t go into trial blind to the juror proof.  You would never go into trial without knowing the legal proof you need to fulfill.  This is no different and equally important.

3 Comments

Filed under Burden of Proof, Focus Groups, Jury Research, Voir Dire

Tagged as , , , , , ,

December 7, 2011 · 4:33 pm

Mistakes in “Polarizing” – Are You Hurting Your Case?

If you are a Plaintiff’s attorney and have not yet read Rick Friedman’s “Polarizing the Case,” I highly suggest it – and this post probably won’t make much sense until you’ve read it, although some of my comments apply to trying cases in general.  The premise behind Polarizing is to make a defendant and his/her paid opinion witnesses (note: not “experts”!) choose between saying your client is a liar regarding their injuries or pain or saying your client is telling the truth and the injuries and pain do exist.  In coaching various attorneys in case strategy, I have gotten the feeling that many attorneys are seeing “Polarizing” as the next great gimmick and are anxious to use it.  It is a wonderful technique, but you need to understand the premise behind it and use it only when appropriate. 

The following are some mistakes I commonly see:

1. Wrong Case: Not every case is good for Polarizing.  Firstly, the defense must be in some way calling your client a liar – usually though malingering claims.  If they are fighting you on liability and causation issues but not really contesting the pain your client is feeling, then Polarizing is not appropriate.  The defense must be pointing fingers at your client and arguing that the pain is not real or that your client is reporting more pain than he/she really has, etc.  It’s possible to have a Polarizing case when the defense contests liability if they are arguing that your client is lying about his/her version of the events, but usually Polarizing is used for damages issues. 

2. Wrong Client: Not every client is good for Polarizing.  If your client has anything that will tend to make jurors doubt their sincerity, you cannot base your case on jurors either believing or disbelieving your client.  If there are Facebook photos that show your client river rafting when he is claiming serious back pain, do not Polarize.  If your client was filmed in video surveillance doing anything inconsistent with the injuries, do not Polarize.  If your client will not come across as completely genuine and truthful on the stand, do not Polarize.

3. Wrong Timing: There is debate amongst consultants as to when to start Polarizing.  Rick Friedman tends to advocate using it early on in opening and making the case all about choosing whether your client is lying or not.  Others, like David Ball and myself, tend to wait until later in opening to start Polarizing.  In my opinion, the Polarizing techniques seem too adversarial for you to use early in opening.  Jurors don’t trust you yet so to ask them to believe not only you, but your client, is risky.  I prefer to wait until the end of opening to discuss Polarizing issues.  In some cases, an attorney will tell me they are not sure how much the defense will really push a malingering issue or what they will say about it.  In those cases, I do not suggest using Polarizing in opening or anywhere at trial until you know the defense has pulled the trigger.  If you push an advocacy issue of accusing the defense of game tactics and they never play that game, you seem disingenuine.  Be certain that the defense is going to push the lying issue before you bring Polarizing into the case at all.

 

Leave a comment

Filed under Jury Research, Opening Statement, Trial preparation

Tagged as , ,

November 20, 2011 · 8:50 pm

Unreliability of Eyewitness Memory & How to Counteract It

If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight.  And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable.  I want to briefly discuss the research and then will talk about implications for your case.

Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others.  She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign.  Half of the participants later received a suggestion that the traffic sign was a yield sign.  When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event.  I am certainly not suggesting that this happens every time –  there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion). 

Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy.  This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.

Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory.  But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.

So what can you do about it?  You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup).  But consider informing your jurors of these psychological phenomenon.  Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.

Leave a comment

Filed under Jury Research, Misc, Uncategorized

Tagged as , , , ,

November 9, 2011 · 9:33 pm

Watch for Inconsistencies

In my last post, I talked about trusting jurors.  The flip side to that is that you need to be trustworthy.  There are many elements that go into being trustworthy, such as:

  • How you present yourself in court
  • How you treat witnesses and court staff
  • How honest you are in voir dire (and how little you use voir dire as a means to persuade rather than gather information)
  • How much you ask for in damages and what you ask for (be reasonable!)
  • How consistent your story is

There are many other factors but I want to briefly talk about the last element.   Pennington and Hastie are credited with developing what is now termed the “Story Model” of jury decision-making.  There are several elements that go into making a good story and as jurors listen to a case, they construct several stories.  One or two win out in the end.  One of the elements of a winning story is consistency. 

If jurors sense any inconsistency in your story, you lose credibility.  Be aware of inconsistencies in testimony as well as issues you may not always be on the lookout for.  For example, if you are claiming back injuries and ongoing pain, does your client shift in the chair during trial?  If your client has neck pain and loss of mobility, is he/she still driving?  Jurors will not only spot the inconsistency but will be angry that your client is an unsafe driver who cannot look where he/she is going and therefore is putting that juror in potential danger.  Will jurors hear about a settlement with one defendant and yet your client claims to have no money to get treatment?  Jurors will assume the money from the settlement could have gone to treatment and often then surmise that your client is not really motivated to get better. 

Often you will need an outsider’s eye to spot these things.  You may be too close to the case.  If you don’t have the budget for a focus group, run your case by some non-legal friends or strangers.  See what questions they have and what troubles them.  The less inconsistencies you have, the more jurors will be able to trust you and your story.

 

 

 

2 Comments

Filed under Focus Groups, Jury Research, Misc, Trial preparation, Uncategorized

Tagged as , ,

October 22, 2011 · 4:13 pm

Detecting Lies During Voir Dire

There have been many studies done on lie detection and the results are often disheartening.  Most of us, including police officers, fare no better than chance at detecting a liar.  When it comes to your voir dire, this can be troublesome.  While much of lie detection is a gut reaction (if you haven’t read the book “Blink” yet, I highly suggest it), there are some things that you can look for and some myths you should be educated about. 

Myths:

  1. Liars Fidget.  Yes, maybe…but so do people who are telling the truth.  Often, good liars have learned to keep their bodies very still.  You could have a truthful juror who is simply nervous and fidgety.  Don’t assume a nervous behavior means they are lying.
  2. Liars Look Away.  Again, not necessarily.  Some liars will look you straight in the eye.  They may even have more direct eye contact than normal.
  3. Liars Won’t Have Detailed Stories.  Not true.  The stories are more likely to be overly detailed.

The most important things to look for in detecting lies are inconsistencies.  As humans, our bodies betray us – there are little tells that come out even if you don’t mean for them to.  Slight smiles when talking about something gruesome and horrifying or nods of the head when talking about something in the negative.  Look for these subtle body language cues. 

If you ask basic questions first, you can get a baseline reading off the person (such as asking about their family and work life).  When you ask more controversial case-specific questions and they react differently, that may be a sign they are lying.   If a juror is fidgety when talking about basic questions but then stiffens up when answering more case-specific questions, you need to consider that they are lying on the case-specific questions.  Watch for changes in tone of voice, body gestures, crossed arms, whether they look straight at you or not.  It is not the gesture in itself that matters – it is the difference from their baseline.  Watch for inconsistencies and you will fare much better than sticking to stereotypes of liars.

If you want to know more, look up some work by lie detector Pamela Meyer and I’m sure there are many others.

 

 

Leave a comment

Filed under Jury Research, Misc, Voir Dire

Tagged as , , , ,

October 10, 2011 · 4:23 pm

A Look At the New Argumentative Theory of Reasoning

In one of my previous posts, a reader asked about a new theory called Argumentative Theory or Argumentative Reasoning.  I thought it would be helpful and enlightening for some if I posted the basics of this theory.  Although this theory meshes well with older concepts such as confirmation bias, the theory in itself was just recently published in Behavioral and Brain Sciences in an article written by Hugo Mercier and Dan Sperber titled “Why Do Humans Reason?  Arguments for an Argumentative Theory.”  I do not necessarily endorse this theory.  I merely provide information as food for thought.

The theory states that humans reason not to discover truth or work toward that end goal, but rather to win arguments.  Reasoning therefore may not seem “reasonable” at all – it can be very irrational and actually lead people further away from what we normally would consider rational.  This is where the theory meshes nicely with confirmation bias.  Confirmation bias states that people will alter information to fit their prior beliefs, sometimes forgetting information that is inconsistent with their beliefs or exaggerating information that is consistent with their beliefs.  With Argumentative Theory, people may be doing the same thing for the same purpose – to hold fast to their beliefs and make the world around them conform to those beliefs.  This theory challenges the idea that reasoning should lead to better decisions.

The theory also meshes well with other evolutionary theories such as those espoused by David Ball in his book, Reptile or Rapaille’s Culture Code.  Under Argumentative Theory, the evolutionary reason for reasoning is to help us convince others of our arguments and to be on guard when others try to convince us of theirs.  This is a self-preservation mechanism.  If your view of the world is wrong and you are making decisions based on that view, then you are in danger.  If you can convince others that your view is correct, however, you are safe. 

Putting the theory into practice for trail strategy purposes, you need to be aware of the pre-existing beliefs of your jurors.  Try to make the case fit within those beliefs.  Read Rapaille’s book and understand what codes are associated with various people or things within our society.  Run focus groups and find out what jurors think about topics associated with your case.  If jurors believe that doctors are caring, competent people, then show that you agree with those views and then show how the defendant doctor did not conform to those ideals.  Contrast what the defendant doctor did with how other doctors acted. 

Realize that jurors are going to argue to keep their world consistent.  Work within that consistency and you will do a much better job at “arguing.”

Leave a comment

Filed under Focus Groups, Jury Research, Misc

Tagged as , , ,

October 2, 2011 · 3:08 pm

How Well Can You Predict the Outcome of Your Case?

In my years of studying jurors, I have come to find attorneys just as intriguing.  Attorneys know their cases extremely well.  So well, in fact, that it hampers their ability to predict the case outcome, which ironically is precisely the thing that they study the case so intently for.  The objective of taking on any case is to win – whether that means a good sized settlement, a motion to dismiss, a protective order, or a verdict at trial.  Attorneys work countless hours toward that objective, but in becoming so familiar with the case, they become dissociated from the people who are deciding the case and are hearing the facts for the first time.  Things that became important to the attorney over the course of time and which he/she thinks are the cornerstones to the case can be completely irrelevant to listeners, such as mediators, jurors, or judges, who have much less familiarity with the case.  If the purpose is to persuade these listeners, attorneys need to learn to rely on strategies for preparation other than their own intuition.

Attorneys consistently make decisions about their cases based on their own predictions.  They decide whether to mediate, whether to take a settlement or reject it, and whether to proceed to trial all based on their inner predictions.  If attorneys are poor predictors of case outcomes, they may accept low settlement figures or reject adequate offers to settle.  To become better attorneys and better serve clients, attorneys need to become more accurate predictors.  One way of doing so is learning whether previous predictions were correct.  Mock trials can test these predictions as can post-trial juror interviews. 

People as a whole often either over or underestimate their abilities on tasks.  This is not specific to attorneys.  Many attorneys are overly confident in their abilities to predict outcomes.  This is due to many factors.  Attorneys are supposed to be advocates for their clients.  In doing so, attorneys display a confidence about their position.  This confidence can, over time, skew the attorney’s reasoning and make him/her overly confident about the likelihood of success.  It is human nature to become more confident in a goal when expressing confidence to others.  The more one espouses one’s beliefs, the stronger those beliefs become.  Further, attorneys wish for a good outcome.  In wishing for something, they convince themselves that it is true.  This is a strength for zealous advocacy but a weakness when it skews the attorney’s ability to predict and therefore make sound decisions.  Attorneys may also exhibit overconfidence due to a failure to recognize that they are not fully in control of the outcome.   Judges, mediators, and jurors have their own minds.  To the extent that attorneys do not incorporate those individuals’ control over the outcome, they disillusion themselves in making decisions or forming strategies.

A study done by Goodman-Delhunty, Granhag, et. al., tested attorneys’ abilities to predict case outcomes.[1]   Participants consisted of 481 litigating attorneys, the great majority of which were civil litigation attorneys.  The attorneys were asked what a win situation would be in terms of a minimum goal for the outcome of the case.  They were also asked what their degree of certainty was for achieving that minimum goal or better.  In 32% of the cases, the final outcome matched the minimum goal set by attorneys.  In 24% of the cases, the outcomes exceeded the attorneys’ minimum goals.  In by far the majority, 44% of the outcomes were less satisfactory than the minimum goals.  In a large proportion of the cases where the minimum outcomes were not met, the attorneys erred on the side of being over confident.  Further, the higher the confidence level, the more off the attorney’s prediction was from the outcome.  The study also found that experience had no effect on the ability to predict case outcomes: Experienced attorneys were no better at predictions than were inexperienced attorneys.    

If attorneys are so bad at prediction case outcomes, thereby often making poor decisions regarding their handling of the case, how can attorneys do a better job for their clients and themselves?  The answer lies in relying on input from people who are not handling the case.  Attorneys are too ingrained in the case to predict what the decision-makers will do with the evidence.  Focus groups and mock trials give attorneys an opportunity to test their predictions and to see what people distanced from the case find important.  If done before mediation, focus groups and mock trials can direct the attorney as to whether to settle and what range of settlement figures are acceptable for that case based on what jurors would do at trial.  Without the input from outside sources, the majority of attorneys will make decisions which will create an outcome that is less favorable than even their minimum goals. 

[1] Goodman-Delhunty, Granhag, et. al. (2010) Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes. Psychology, Public Policy, and Law, 16(2), 133-157.\

*This article was originally published in Trial Talk magazine

1 Comment

Filed under Jury Research, Misc, Trial preparation

Tagged as , , ,