February 3, 2011 · 12:31 am

Dealing with the CSI Effect

You may have heard of the “CSI Effect.”  It is a more recent phenomenon that is so named because it is caused in good part by television shows such as CSI and Law & Order.   Jurors often coming into the courtroom with inaccurate expectations about how trials work, the way cases are presented, and what attorneys are expected to present to prove a case.  These shows depict trial as exciting, succinct, and full of drama.  They also tend to have defining moments whereby all doubt is erased by one central piece of evidence.  As a result, jurors have a tendency to overestimate the availability of technical, scientific evidence and hold it against you if you do not have it.  They have come to expect presentation of DNA evidence, computer records, and other types of exacting and conclusive evidence at trial.  In reality, we all know this kind of technical evidence is rarely available.  When a case is so clear-cut, there is no need for a jury trial. 

This effect has been seen for some time now in criminal cases due to the advent of fingerprint evidence and DNA evidence.  Now, however, the CSI Effect is showing up in civil cases as well where such technical proof is even harder to come by: 

  • For example, in a case concerning violations of an equal pay statute, jurors in a focus group got stuck on why the government doesn’t have copies of who sent what emails to whom and what was said in them.  The jurors assumed that there are always copies somewhere of computer files that can be presented to conclusively tell the true story.  One of the jurors even reasoned that because the FBI can take computer hard drives that have been blown up and reconstruct them to find terrorists, there must be a way they could find email files in this case.  The fact that the evidence wasn’t presented meant to this juror that the government didn’t want the jurors to see it.  This shows the great overestimation of jurors of the availability of such hard evidence. 

There are ways to deal with the CSI Effect in trial.

It is worthwhile to address jurors’ expectations about proof in the case at the outset either in jury selection or in opening statements (or both).  Since jurors expect some kind of conclusive or technical evidence in even the least technical cases, do not pass up the opportunity to speak with jurors about their expectations in any case, regardless of how much science is involved.   Jurors’ grandiose ideas about proof in a case can be tackled head on by telling jurors that television shows often depict trials in a certain way and that they should know what to expect in a real trial.  It can be explained that an absence of proof does not mean that the evidence does not exist and that jurors should not be waiting for that one piece of conclusive information that will make the case clear; if the case were that clear, it would have been settled outside the courtroom.  The jurors are there because there are conflicting stories and conflicting evidence and it’s their job to sort through the confusion and ambiguity.   By telling jurors that they won’t be hearing the type of evidence that television shows such as CSI would lead them to expect, some of those expectations can be dispelled and they will not wait around for the exciting “aha” moment.

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January 25, 2011 · 11:41 pm

Dealing with Juror Misconceptions

The law is daunting.  Half the time, attorneys don’t even understand what legal writings mean and yet every day, we ask lay persons to decipher legalese.  The verdict on a case can greatly depend on jurors’ comprehension (or lack thereof) of the law as well as their preconceived notions regarding what the law is. 

Studies Show Judge’s Instructions Do Not Override Juror Preconceptions

There have been studies done on the effect of crime categories on the verdict.  If the legal (crime) category at issue is one for which the juror has no prior knowledge or experience, then they are faced with the daunting task of learning this abstract information.  Where jurors do have prior knowledge, as is often the case with legal categories such as kidnapping, murder, negligence, etc., such prior knowledge is likely to interfere with legally accurate decision-making. (Pennington & Hastie, 1991)  When mock jurors were asked to list features of various crimes, the features they listed were often incorrect, incomplete, or irrelevant under the law. (Pennington & Hastie, 1992)  This is understandable as many legal definitions of crimes are contrary to common sense.  For example, most people assume that kidnapping includes some sort of violence or prolonged capture while the legal definition requires neither.  Studies show the influence of these types of prior knowledge persists despite hearing judge’s instructions on the law.  The studies showed a tendency for mock juries to vote guilty more often for crimes that followed their preconceived notions of the crime definition than for crimes which legally met the definition of the crime but were atypical of common sense ideas of the crime definition.  Further, in evaluating evidence, mock jurors were more willing to accept evidence that was consistent with their knowledge of the crime category than they were to accept knowledge that was inconsistent.  Thus, expectations about what is typical of a type of crime influences the inferences jurors make to fill gaps in the evidence. (Smith & Studebaker, 1996)

What Can You Do About It?

What, as practitioners, can we do to combat this phenomenon?  The studies say that judge’s instructions did not alter the results.  But instructions from the judge are often as confusing as the original jury instruction.  During closing, you need to explain the pertinent portions of the laws relevant to your case in plain English.  For burden of proof, for example, show jurors the instruction and explain that all it means is “more likely than not.” 

This does not address the issue, however, of jurors evaluating evidence throughout trial based upon their preconceived notions about the law.  You do not want jurors seeing the case through a lens that is harmful to your position.  By the time you get to closing, it is too late; jurors cannot re-process all the case information to evaluate it under the correct lens.  Instead, start asking jurors about the laws in voir dire.  For example, tell them that in cases like these, they will be asked to decide on a verdict based on a standard of “more likely than not”, which is very different from “beyond a reasonable doubt.”  Ask what problems they will have with that.  This not only gives you valuable information regarding which jurors to strike, but also alerts jurors to the law of preponderance.

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January 23, 2011 · 5:22 pm

The Art of Voir Dire

Some cases end after jury selection – you’ve either set yourself up to win or lose the trial.  But the result normally does not revolve around how well you were able to sneak in your agenda.  Jurors learned long ago to be wary of attorneys using voir dire to tell jurors about their case.  Instead, voir dire is an opportunity for you to build rapport with the jurors so that when you do get to the evidence, jurors trust you and your story.  Trust is not easily built if you hide behind a podium staring at your notes instead of engaging with the jurors.  Part of the art of voir dire is the same thing as the art of conversation.  Pay attention and show a genuine interest.  Let a paralegal, secretary, or consultant take notes.

The process of de-selecting jurors is complicated by the fact that jurors often give answers that are inaccurate either because (1) they are trying to be politically correct, (2) they haven’t thought long enough about the question to give an honest answer, or (3) they are stealth jurors who lie to get onto a jury.  To deal with issues 1 and 2, you need to know how to ask questions in a manner that give jurors permission to answer truthfully.  To do this, you need to lower the barriers to a “bad” answer.  For example, give jurors a choice of two viewpoints and ask which one they are a little bit closer to:

  • Some folks, like my grandmother, for example, feel that money should not be included in a verdict for pain and suffering because money cannot make the pain go away.  Others think it’s okay.  Which are you a little closer to?

This allows jurors to feel comfortable opening up and giving an answer that they otherwise may feel you do not want to hear.  Another similar line of questioning is to ask what problems jurors would have with something:

  • Mr. X, assuming we prove our case to you to a degree of more likely right than wrong, what problems, even little ones, would you have in including money for pain and suffering in your verdict?

The next artful skill is in following up.  This conversation skill is simple, but not easy.  Allow jurors to expand on their answers by asking them, “tell me more about that” 2-3 times per question.  Often jurors do not know their true answers until they are asked to really think about it.  You should get your true response by the second or third follow up.  The reason this is hard is because it is very tempting to ask leading follow ups, such as “how did that make you feel?” or “why?”  These may seem like open questions, but they still lead a juror down a certain path.  Had you simply asked for them to tell you more, they may have chosen to go off on a different tangent which was important to them.

This leaves the third category of jurors, the stealth jurors who answer in a way so as to get themselves on the jury.  Explaining in full how to detect these jurors will be the subject of another post, but in simplistic terms, look for inconsistencies in answers, tone of voice, and body language as they answer your questions and as they listen to other jurors answer questions.

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January 22, 2011 · 10:32 pm

What is Juror-Proof?

Welcome to JurorProof.  There are two kinds of proof:

  1. Legal proof, which is the proof needed to satisfy legal elements of a claim.  This is relevant when making arguments to the court or writing briefs and motions, etc.
  2. Juror-proof, which is needed to get jurors to find in your favor.

Who Authors This Blog?

This blog is run by Jessica Hoffman Brylo, J.D., M.A., an attorney and trial/mediation consultant as well as President and Owner of Hoffman Brylo Consulting, LLC (www.hoffmanbryloconsulting.com), a full-service trial consulting firm.  This blog is meant to aid litigators in preparing cases for mediation or trial.  Many attorneys do not understand the need for consultant input before a case goes to mediation, but mediation is often entirely about who can predict what a group of jurors will do with the case.  The more convincing one side can be regarding the merits of their case as seen through the eyes of the potential jury, the more leverage they have in settlement.  Which brings me to the purpose of this blog…

About Juror-Proof

Attorneys often make the mistake of thinking that the two kinds of proof are one in the same or overestimating the degree of overlap.  Jurors do not care, for example, whether you have proven duty, negligence, causation, and injury.  They do care that your client is an upstanding person.  They care that your client drank the night before, even if it has no relevance to the claim or to causation.  And they certainly do not care that it is legally improper for them to consider insurance.  Unless you understand what jurors care about, you do not have the proof you need to win your case.

So how do you find out what juror-proof is for your case?  Multiple ways.  Focus groups and mock trials are by far the best way to determine what juror-proof is for your case IF they are done in a scientifically reliable fashion.  Many attorneys make the mistake of relying on focus groups they conduct in-house without the use of a trained consultant.  I caution that those results may be misleading if the focus group was not conducted properly.  Without a budget for a focus group or mock trial, however, many consultants bring to the table their experience in studying juries and working on numerous cases.  With that background, they can often help draft opening statements or closing arguments or do a simple case analysis to tell the attorneys what areas they see as being problematic and how to get around those hurdles.  Thirdly, I hope that reading this blog will be of assistance.  From time to time, I will post on here my own thoughts as well as link to articles that seem relevant.  Welcome to JurorProof!

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