ou’re preparing a very important case for trial. You are thinking ahead about your themes, which witnesses are most
important, and how you’re going to organize
all the details of your complex case so that the jury will vote in favor of your client. You would like to know how the jury is going to react to what you have planned before you give your opening statement. You wonder how to tap into the body of knowledge on jury psychology and how to test how jurors will react to your case. Some of you may have experimented with studying the jury’s reactions, using social science research methodologies to gauge potential strategies and responses from groups of jurors. But whether you are a veteran of the jury trial “battle” or a novice, you know that understanding the jury’s perspective through pretrial research can be the most powerful technique in your trial strategy and preparation arsenal.
There has never been a more important time to analyze how jury psychology will play out in the theater of the courtroom than in this turbulent economic period. Our data collected in surrogate jury research in numerous venues across the country show that anywhere from 70 to 85 percent of our research participants distrust corporations, 85 percent believe corporations hide information about dangerous products, and 78 percent think corporations will destroy incriminating documents. The vast majority of jury eligible respondents believe senior executives will lie on the stand to protect the company and that corporations have the advantage over individuals in litigation. In the face of a myriad of trust-breaking revelations from government officials, car companies, and sports figures, there has never been a more important time to understand reactions to all types of corporations, including manufacturers, pharmaceutical companies, insurance providers, and financial organizations.
Further, times have changed, and the courtroom environment has changed. Technologies previously seen only on television and computer screens are now available to showcase themes and tease jurors, many times on permanent screens built into the jury box. One-, two-, and three-dimensional graphics and dynamic interactive and step-by-step visuals offer an attorney control over the timing of presentation of evidence and increase impact. To be effective, the sequence and timing of such presentations require testing as well, making the need for research even more pressing.
Importantly, “jury” psychology isn’t just for juries. Studies show that judges are more like jurors than they are dislike them—in other words, judges are subject to human biases and emotions, just like jurors—and that the unique environment of the courtroom means that there are significant similarities in judges’ and jurors’ reactions at a hearing or trial. Thus, methodologies used to test jury reactions can also be used in surrogate arbitrations, Daubert hearings, and bench trials. No matter who is listening or watching the evidence show, the audience must be tested and the message streamlined using technologies now available in the courtroom. So where should a savvy litigator turn? First, let’s take a look at some of the basics.
JURY PSYCHOLOGY FOR THE TRIAL LAWYER
Insights gleaned from over 60 years of jury psychology research, in the academic world and in the “real world” studied by trial consultants, offer a one-way mirror into the psyche of jurors—who they are and the important psychological frameworks that they utilize in deciding a case. Given the breadth of academic and “mock trial” research, this article is just a starting point in your quest to understand the psychology of jurors and how jury researchers study them. But here are some of the things that researchers have learned over the past 30 years. The first category of knowledge researchers have gained applies to the ways in which jurors approach trials.
Jurors take their roles seriously. It is a mistake to underestimate the intelligence and cognitive abilities of jurors or their approach to trial. Indeed, as attorneys watch mock trial deliberations, their most common reaction is shock that the jurors have retained so much information from such short, intense presentations. Attorneys are often surprised at how seriously jurors consider the case and how emotional they were during deliberations. Jurors truly want to do what is best, to listen to both sides’ stories, and they often would prefer to come up with a compromise. As a part of the pressure that they feel to decide the outcome of a very serious matter, they often start to consciously or unconsciously “pick sides” from the beginning.
Jurors engage in “selective remembering.” Jurors feel that they have to make a decision, so they turn inward to their own life experiences to evaluate a case. Researchers know that a juror tends to listen to and believe information that is consistent with his or her life experiences and to discount information that does not match those experiences. The more complex the case, the more this process occurs.
Jurors want to get outside information. Jurors don’t understand why they can’t use their Blackberry or cell phone to access the Internet. What’s the first thing they do in real life when there is something they don’t know? They Google it! The rationale of avoiding outside information seems obvious to judges and attorneys, but is not obvious to jurors these days. “Why isn’t more information better?” They want to know, “Why can’t we investigate? Why can’t we find out about this company’s environmental record? Why can’t we find out if this plaintiff has ever sued before?” Thus, instructions that seek to limit their activities beyond “don’t read the newspaper” have been created, but jurors find it very difficult to resist Internet research before and during a trial.
Jurors’ uses of social media provide a source of information about them. Jurors are addicted to their Facebook pages, their Twitter accounts, and their myriad Internet sources. Their use of these accounts to post personal information, to blog, and to post comments has become a source of pretrial data for those who know how to search the right Web sites. Trial consultants have developed methodologies for these searches that yield pretrial attitudinal data as well as jury selection information.
Researchers have also gained insight into the best way to communicate with a jury.
Jurors need a “story.” The unique perspective from which jurors will view your case demands that you provide them with an understandable framework to organize the evidence that they will hear. Jury research bears out the old adage passed on from senior counsel to junior that the most common framework used by jurors, and by most people in the world hearing new information, is a story. You can provide structure by using clear and concise themes that serve to outline your story. The themes should give the jurors understandable language and familiar concepts. Themes are the means by which jurors will determine the facts and assess the motivations of the characters in the story, the way that they will decide “what really happened.”
Jurors need a timeline (or two!). Timelines and chronologies are the core of your opening, and you should use one or more timelines to allow jurors to understand the case. Timed or interactive timelines—controllable by the attorney—allow the presenter to discuss each event or “phase” in the events of the case before moving to the next event phase, focusing attention and increasing retention of the jurors.
Jurors fill in the gaps. Jurors often are very concerned about the motives of the players in a lawsuit. If jurors aren’t told why people did the things they did, jurors will come up with their own theories or motives that fit the story they believe is true. Jurors will evaluate the evidence and will fit the evidence into the story, not the other way around. That is the reason they often fall prey to conspiracy theories. Gently show jurors how the evidence should be interpreted.
Jurors struggle with damage awards. Because of the media’s coverage of seemingly outrageous damage awards such as the McDonald’s coffee spill suit, there is a general perception that jurors are irrational in their assignment of damages. However, in many cases, given the instructions and information jurors are provided with at trial and an understanding of the ways that people usually make decisions about money, awards for damages should not be too surprising.
The three most common methods of calculating damages are (1) averaging individual juror’s figures; (2) using an anchor figure, that is, a number suggested by the plaintiff, the defendant, or even by a juror suggesting a similar, high-profile case as a comparison; or (3) coming up with a compromise figure. Entire texts have been written about how jurors calculate damages, but in short, these methods make the most sense to a group of jurors who have differing opinions about the right amount of damages. Knowing these potential methods of calculating damages allows attorneys to make decisions about how to approach the topic of damages with jurors.
Witnesses must demonstrate credibility within minutes. Jurors tell us that they rely on body language at least as much as verbal testimony in evaluating witnesses. They make snap judgments about the credibility of the witness, much like the concept of “thin-slicing” coined in 2005 by Malcolm Gladwell in Blink: The Power of Thinking Without Thinking. They focus on facial expression, posture, and distracting behavior, such as wiping a brow or fussing with a tie. If you want your witnesses to be credible, jury research teaches us that you should spend at least as much time improving their “presentation style” as reviewing documents or hearing their substantive answers.
Attorneys frequently rely on their experts’ testimony to make their case. However, this emphasis on expert testimony is an example of how attorneys may miss what jurors find important. Attorneys need to recognize that jurors want and need excellent communication skills and appropriate-level explanations and vocabulary, or they will get lost in the jargon and technology offered by most experts. Expert witnesses, from the jurors’ perspective, need to have two things: relevant experience, not just a fancy education, and the ability to communicate and teach without patronizing jurors.
Finally, researchers have spent considerable effort to learn what jurors believe they need to assist them at trial.
Jurors rely on visuals. At a very basic level, graphics engage jurors and keep them interested in the material. Graphics can punctuate key points or introduce a new set of facts. Displaying a series of supporting documents helps to establish your case, but more illustrative graphics can be dispersed throughout to break up the tedium. Graphic representations of your case themes are especially important in complex matters, where jurors will be relying on you not only to educate them, but to entertain them as well. The choice of “medium” or type of technology is important. Technology might include a software presentation system, a large screen, individual monitors, or a type of animation. Once you have found your case themes, it is important to determine how best to covey these themes to jurors so that they will remember them.
Jurors want to determine the evidence for themselves. Jurors don’t like to be told what to do, and in our research exercises report that they want to evaluate the actual evidence for themselves. They want to see the e-mails, memos, phone logs, files, etc. They want you to graphically and visually explain the issues to them. As is often said, a picture is worth a thousand words. Any time you can present your information visually for jurors, they are better able to encode and store that information and then retrieve it later when it is most critical—during deliberations.
RESEARCH CAN HELP YOU UNDERSTAND JURORS
The robust research methods that experienced trial consultants employ allow you to evaluate your case themes in the actual venue. Listed below are many of the most frequently asked questions (and answers) about pretrial jury research. Armed with this knowledge, you will be more informed about how to use this incredibly powerful pretrial technique.
What kinds of things would I learn from jury research? Jury research has traditionally been used to unveil and construct the most effective themes, the most effective story to tell, and the sequence of evidence that will have the best chance to persuade the majority of jurors in a specific venue. Surrogate jurors also teach us about what they understand (and misunderstand), what they believe (and do not believe), what they want to hear (that we did not tell them), and what types of language they use to talk about the case issues. Further, specific studies can be designed, for example, to (1) study potential jurors’ reactions to issues, companies, even potential case facts even before a case is filed; (2) assess witnesses using (live or videotape) excerpts; (3) estimate potential damage awards; or (4) evaluate potentially favorable or unfavorable juror characteristics and many more experimental permutations.
Achieving effective communication at trial (or in an arbitration, bench trial, or hearing) requires studying not only the messenger and the message being conveyed, but importantly, the receiver of the message. There are two main approaches to studying jurors, qualitative research and quantitative research. (Methods for analyzing other audiences are detailed later.)
Many forms of qualitative research—think quality of what people are saying rather than numeric answers— can be used to aid the trial lawyer. These surrogate deliberations usually involve discussion groups or what have often been referred to as “mock” juries. They can be used to ascertain what jurors believe and understand about your case after they’ve heard a neutral presentation of the background issues and/or case evidence either by a facilitator or by attorneys representing people on both sides of the case. Sometimes there are many small groups allowing for quantitative data as well. These studies have many permutations and can allow for the assessment of different variables, including attorney style, witness testimony, use of demonstrative exhibits, as well as substantive issues found in personal injury, product liability and insurance coverage and bad faith cases. Studies such as these are designed to accomplish specific goals in understanding what potential jurors will be thinking when they hear the case in an actual courtroom.
Many methods are quantitative and involve sampling the opinions of many people from a relevant venue using primarily numeric or multiple choice responses. The more you need a scientific statistical analysis, the more people you need to survey. Multiple group research or a telephone survey may be more appropriate for this need. Assessing accurate damages figures typically requires either utilizing multiple small groups, a ballroom’s size group of people, or a survey. Predictions of favorable and unfavorable jurors are more appropriately determined by multiple groups or even by a telephone sample of 200 to 400 people (or more). Surveys last 10 to 20 minutes by phone or up to an hour or two in person, but the shorter the survey, the more restricted the questions that can be answered. Some studies are uniquely designed to assess whether a change of venue is in order or to block such a request. These studies require special confidentiality and research design considerations, and may even involve offering a testifying expert to present the results to the court. This contrasts with most trial consulting activities, which are completed as consulting, nontestifying experts.
Other recently developed techniques involve online or Internet polling. These surveys have similar content limitations as other types of surveys, and will never be a substitute for in-person research. However, growing use of cell phones may mean less accurate phone lists for randomized telephone surveys, and as such, online surveys are becoming more popular. Online polling has some unique issues regarding protection of confidentiality of materials, appropriate sampling, and accurate identification of participants. As such, it is particularly important to use proper research techniques in developing balanced stimulus materials to present and in screening potential participants. As with any form of pre-trial research, attorneys and their clients must be reminded about the limitations of the results in terms of predicting verdict or trial outcomes.
Where do you get the “jurors”? Surrogate jurors are recruited most often through subcontracted market research companies, according to specifications provided to them by jury researchers. The research project is held in these market research facilities (with one-way mirrors) or hotels using closed circuit television for viewing the deliberations. Jury researchers’ parameters and specifications are quite strict, and every attempt is made to match the trial venue. The market research recruiters assemble surrogate jurors in a variety of ways through their database or by “cold-calling.” Jury researchers make sure to screen each participant carefully so that no potential juror has a connection with the litigants or attorneys in the case.
But surrogate jurors aren’t the same as real jurors, right? They absolutely are. As noted above, the most common feedback jury researchers get from clients who are new to the process is that they are amazed at how seriously and emotionally jurors take the case even in surrogate research settings.
Researchers have also learned from post-trial interviews that real jurors tend to view the case in the same way that surrogate jurors do (especially if the attorneys have not heavily revised their trial strategy by the time the case goes to trial). Surrogate jurors will react to the case in the ways typical jurors will, with only two exceptions. First, surrogate jurors are often privy to less information because they have received only a summary of the case and thus may have more focused feedback for the attorneys. Second, when the defendant presents a damage defense in the compressed format of a research exercise, jurors may misinterpret alternative numbers as an admission of liability. With this same assessment possible at trial, it is less likely when the damages discussion occurs at the end of a two-week case than if it occurs at the end of the afternoon. In this sense, damages feedback is interpreted in the context of the extent and timing of damages evidence presented.
What percentage of the time do your research exercises predict the actual trial outcome? Ah, the ultimate question and why this calculation can’t happen! It is not possible to correlate the surrogate jurors’ assessments and the trial outcome for two basic reasons. First, recommendations are always made for improving the strengths and eliminating the weaknesses of the case, which means that the trial strategy is likely to be altered before the case goes to trial, and as such, a negative outcome in a research exercise often results in a positive outcome at trial. Second, many cases do not go to trial. If a negative outcome occurs at the research level, lawyers will sometimes reevaluate the settlement value of the case. Pretrial research can enable attorneys to be more confident about the possibility of winning a case (and thus approach settlement with different expectations) or be more soberly realistic about the chance of losing (and thus decide to change a settlement demand or increase an offer). Research is, however, predictive of typical juror responses if the same messages are put forth in the same way at trial as in the research exercise. Thus, despite the obvious research value, it is not always possible to predict a trial outcome from a research outcome.
What technology is available to help understand the jury decision making process? New technologies can help you make assessments. For example, products exist that allow lawyers to watch onscreen as jurors rate opening statements or witnesses with handheld scoring devices with buttons or dials.. Instantaneous measurement of reactions, as well as onsite data collection and analysis, is possible using this technology. While this analytical tool makes a surrogate jury research project different from the actual trial process, it is an important option that allows you to really get into the heads of the jurors as they are processing the evidence.
There are many issues with regard to maintaining attorney-client privilege and protecting work product obtained while working with a trial consultant. Trial consultant opinions or research reports should be protected as attorney work product and are not discoverable. To maximize the protection afforded to the research work product, there are a number of suggestions that jury researchers have found important, including retention of the consultant by written agreement with counsel (including a confidentiality provision); physical presence of the lawyers at the research sessions or witness preparation sessions; special data collection for change-of-venue surveys (that are disclosed to the court) from jury selection surveys.
However, interestingly, attorneys are reporting that they (or their adversaries) are often, in the context of mediations or settlement discussions, openly offering that they have conducted jury research and have found a variety of results. (They maintain that the actual work product is not discoverable, despite this general disclosure.) For example, from the defense perspective: “The jurors are awarding less damages than demanded by the plaintiff.” Or, from the plaintiff perspective, “There were higher damages than expected and more than we have demanded.” In any case, the revelation is usually that that team’s case is more powerful than the other side’s. These disclosures are most likely happening when the research results are favorable to the presenting party’s side of the case (note that the results are not always favorable), but these observations certainly put pressure on the other side to conduct its own jury research to have confidence in its position.
Yes, but you may not obtain reliable and valid results. There are four main reasons you should hire an experienced trial consultant when you consider pretrial research. First, jury or bench trial research is more than just logistics. For example, market research firms typically are not geared for the specific needs of litigation research (i.e., issues of venue sampling, confidentiality, etc.), and thus the wrong people could end up in your “juries” or as your surrogate arbitrators/mediators. Second, experienced consultants know how to analyze the data and interpret the results. They have observed and studied thousands of surrogate jurors in hundreds of venues around the country and can use this knowledge about how jurors respond to similar cases in analyzing your case. Third, because qualified trial consultants have backgrounds in research methodology, they are able to understand threats to the validity of the research and various limitations of the findings. Fourth, trial consultants bring something different to your analysis. As noted above, lawyers are trained to think legally, whereas jurors tend to use their personal experiences to understand cases. Trial consultants should have training in psychology and communication theory that allows them to analyze what was persuasive and how jurors have made their specific decisions. After watching thousands of jurors deliberate, a trial consultant can provide a much-needed objective, nonlegal perspective. The result is that trial consultants often become integral members of trial teams and contribute substantially to favorable verdict outcomes or settlements.
The next time you find yourself preparing an important case for trial—contemplating trial strategy and wondering how jurors will perceive your client and the facts of the case—consider the benefits of pretrial surrogate jury research. Understanding how jurors tend to think, how they use various visuals and forms of technology, and interpreting how their individual attitudes, demographics, and learning styles will surface in a deliberating jury can help you to know ahead of time the best way to present your evidence to obtain a favorable outcome. Knowing the jury’s perspective through research can be among the most powerful techniques in your trial strategy and preparation arsenal.
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