In the latest issue of The Jury Expert, Jeri Kagel addressed this well known civil defense counsel avoidance of talking money or damages to a jury. Her article is available here “Damages: The Defense Attorney’s Dilemma.”  Kagel provides a nice survey of the background research and trial advocacy lore associated with pervaying a persuasive case to the panel as well as some useful general tips on handling damages in each element of the trial from the defense perspective. Responding to Kagel’s article with blog posts on damages and the defense are Edward Schwartz  Edward’s blog post and Sean Overland  Sean’s blog post both esteemed trial consultants and members of ASTC. Each of the these article brings concordance to their advice to “Run at the Ghost, Not From It”. Also of interest is a fine small study by Jury Behavior Research on whether jurors “split the difference” when considering competing damages arguments. They don’t.

Repeatedly defense counsel will swing for the fences mounting a robust negligence and causation defense, banking on the jury simply never getting to damages. Most of case preparation time is spent gathering intelligence on the plaintiff’s evidentiary and testimony proof and then setting up SOC and Causation experts to shoot it down, or at least poke some big doubt holes in plaintiff’s theory of the case.  The plaintiff will be devoting a significant plurality of his/her time developing their damages case, you should too. Don’t drop the ball.

For the defense, the fault case lays a foundation for questioning damages. Jurors’ tend to award higher damages when there is a dovetailing of proven egregious acts or omissions on the part of the defendant AND the jury is moved to alleviate the suffering, harms & losses of a “worthy” plaintiff. Conversely, damages are denied, mitigated or decreased when the alleged acts are either exaggerated, venial, accidental, unintended or are the result of genuinely reasonable behavior & choices. Damages are also deflated or denied when it becomes apparent to the jurors that the plaintiff has not behaved rationally or reasonably in the situation and contributed to the outcome.  Character, plaintiff conduct and “personal responsibility” counts as every trial is essentially a referendum on the character and choices of the parties. During your examination of witnesses, make sure you elucidate each opportunity the plaintiff had to make a choice or take an action that either facilitated or failed to mitigate the outcome.

When jurors have to make numerical estimates on the basis of uncertain or incomplete information, they tend to adopt a reference point or initial estimate, an anchor, and then adjust the initial figure up or down to reach their judgment. The plaintiff benefits from setting the money anchor. The smart plaintiff will test for damages ceilings in voir dire, announce the damages demand in opening (if allowed), repeated the anchor amount as often as possible in his damages case in chief, and ring the money bell repeatedly in closing arguments. What should you do as defense counsel?

In each phase of the trial, defense counsel should establish and anchor a damages position. This need not be a dollar amount, per se. In voir dire, queries such as this can be helpful, “Some folks feel so moved when hearing and seeing the losses and hurts experience by another that they look for ways to do something to help them. How many of you are like that kind of person, even if only a little bit?” And now the first suggestion of an anchor, “Some folks would feel so bad about turning another person away and awarding them no money, that it would be hard to overcome that deeply held value to be charitable and compassionate to others no matter what. How many of you would find yourself struggling, even if just a little, when told by the Judge that unless you find my client, Dr.X medically negligent, you must not award any money to the plaintiff to help them out?” The anchor? “No money.”

In the  opening statement and case in chief, using expert testimony on damages can have an anchoring or adjusting affect. The avenue of merit for the defense is to emphasize the adjustment from the plaintiff’s anchor. If you allow that number to stand unconfronted, it’s likely to be the fulcrum point for pro-plaintiff jurors during deliberations.  Your life care planner, economist, and the cross examination of the plaintiff and plaintiff’s damages witnesses, etc., should emphasize variance from the anchor numerically with a foundation of lack of necessity, inflation of costs and ability of the plaintiff to make a recovery and thus a contribution to their own self sufficiency. Framing damages in such a manner that suggests the plaintiff is asking for amounts beyond restoration is effective because it suggests the plaintiff is asking for undue and unnecessary enrichment.

Jurors want their damage awards to accomplish something that achieves the pre loss status quo of the plaintiff. Any suggestion that the anchored damages amount represents a gain from the status quo may result in adjustment by the jurors. When it comes to tangible expenses, use references to costs and essentials that are available to the jurors’ day to day life. Availability means these examples can come readily to their mind as a reference  point. Costs and expenses that are outside their daily experience must be illuminated and the jurors should be made aware of less costly or alternative means to the same end.  Alternatives allow the jurors to adjust from the plaintiff’s anchor.

Jurors have the greatest angst when it comes to the non-economic damages. We frequently hear jurors say, “No amount of money will bring him back.”, or, “What good will money do when she misses her husband?”.  Research has found that many jurors struggle with or even outright oppose awards for loss of consortium, pain & suffering, anxiety, humiliation and other subjective harms. This predisposition makes these elements of damages ripe for opposition.

There are some general areas to broach in confronting the plaintiff’s damages:

• Point out the plaintiff’s unreasonable choices and irresponsible actions/omissions
• Emphasize how the plaintiff did not act the way any sensible person would have in the situation
• Confront elements of the medical and life care plan that are unnecessary and exorbitant
• Point out the unclear and dubious purpose and efficacy of extraordinary treatments, adjuncts, services, etc.
• Show how the plaintiff already has personal and community resources to deal with their problems.
• Throwing money at a problem is a shotgun approach and unwise and ineffective. Point out what (if anything) is strictly necessary.
• Point out to them that if they don’t see what purpose money would serve in the damages claim, they should never award money that serves no clear purpose.
• Remind them that sympathy and empathy for the plaintiff must not determine the award and that fairness to all parties requires they stick to the rules and only consider the evidence.
• Start and finish in closing by telling the jury that you have provided them with all the tools they will need to determine that your client’s actions were competent and reasonable under the circumstances, so you doubt they will even have to consider awarding money to the plaintiff. But, should they find a discussion begins about money, you want to provide them some talking points to consider during that discussion. “No matter how sad or troubled a person may be; it is not right to force another to pay for what they did not do and did not cause.”

Jurors struggle with the hard task of damages determination. You do yourself and your defendant client a disservice by shying away from a quietly confident contradiction of the premises, promises and posturing of the plaintiff’s damages case.

Picture credit: http://www.flickr.com/photos/daviddmuir/2125697998/

Jury research is a valuable tool for understanding and developing your case in every stage of preparation. Below are a few benefits of conducting  jury research in preparation for settlement conferences and mediation. The core benefit of such preparation is to identify in advance how the elements and narrative of the case will play with the fact finders rather than to float your case out merely on the strength of your ardent advocacy. Here are some more arrows for the pre mediation quiver:

• Doing the research early in discovery and ongoing allows you to find and fix problems in the case long before it’s crunch time.
• You’ll learn just what jurors want to know and what they make of what they learn.
• You’ll find out how to target discovery in a manner that addresses what the jurors want to know.
• You’ll develop congruent and persuasive case themes and narratives that bind your facts and evidence into a readily digestible story.
• Disclosing the fact of your research during mediation shows your superior level of preparation and that can provide a psychological advantage from the start.
• The research results will pre-arm you with a clear understanding of the strengths and weakness of your opponents case which can aid you in countering issues in the mediation.
• Use your research to let the opponent know that you have discovered and targeted their vulnerabilities.
• Your research can survey prevalent attitudes and expectations that will play out in the juror deliberations.  You can use that information to persuade your opponent that you have learned from your research how to take best advantage of what helps you and best advantage of what hurts him.
• Use what you’ve learned about the jurors sentiments regarding damages to drive higher settlements or stick a pin into grandiose dollar demands.
• Rely upon professionally designed and valid litigation research rather than your “gut feeling” or the strength of your chest pounding.

Jury research, in order to be reliable and valid, needs to be carefully designed with an eye to the standards of social science research. Validity can be adversely affected by poor sampling of the venire in recruitment and sample size, disclosures to the jurors that result in “satisficing” responses intended to give the attorneys what they apparently want, poorly conceived and conducted presentations (especially of the opponent’s case), and the inherent bias of the sponsoring attorney who is never able to give equal shrift to both sides of the case.

The “talking points” that emerge from pre trial/mediation research are powerful adjuncts to your case preparation and take your advocacy to higher levels of proficiency and preparedness for your clients. Sponsor pre trial/mediation research early in case development. It is an investment that pays off in efficiency, relevance and the horsepower of your case advocacy.

Photo: http://www.flickr.com/photos/myrfsphotos/2654992300/in/photostream

It’s not enough to review the facts. The fact is your witness can’t listen or learn if they are twisted up inside with worry, fear and misapprehension.

Witness preparation is primarily an educational process. From the very first, give your witness information about the context of testimony, the overview narrative of their testimony, the “job” they have within their testimony,etc.  Education and context can relieve much of their concerns, but in many cases it’s not enough.

Clients enter into the threatening world of litigation filled with anxieties and misconceptions about the process. The prospect of testimony under oath can be frightening and stressful. This anxiety and uncertainty alone can impair the preparation process as well as effectiveness during testimony. Dealing with the witness’s subjective reaction is job one for the trial advocate. Before you engage them in dealing with the content of their testimony, spend time with them to discover the concerns, fears and other emotional/subjective reactions that will affect their preparation, expectations, cooperation, and success in learning the skills necessary for successful testimony.

Much of the potential negative emotion arises from  perceptions of the litigation process as a dangerous and threatening endeavor, resulting in the witness responding to threat in ineffective and habitual schemes that adversely affect thinking, behavior, and physiological responses. Problem thinking responses include exagerated attention to threat cues, negative images and worrisome thinking, and avoidance of some aspects of anxiety provoking experience such as reviewing documents and paying attention during meetings. Problem behavioral responses include subtle behavioral avoidance (delaying completion of key tasks, skipping appointments, arriving late, etc.) and slowed decision-making . The physical responses can entail excessive muscle tension, sweating, dry mouth, agitation, repetitive movements, rapid breathing, lightheadedness, dry mouth and frantic efforts to escape.  Only a minority of witnesses will manifest most or all of these unfortunate reactions, but most witnesses will develop a few or more of these reactions. The interaction of these maladaptive responses leads to a process of spiraling intensification in anxiety, distraction and incompetent testimony. Comprehensive witness preparation seeks to replace these maladaptive reactions with better coping responses that allow for better thinking, quietly confident and cooperative behavior, and a sense of reasonable ease and relaxation.

It’s important that you are patient and non-judgmental with your witness. Help your witness to identify the behaviors, thoughts and fears that are impeding the preparation effort. Encourage them to pay attention to any subtle shift in their stress level and to note times of worrisome thinking, catastrophic imagery, physiological activity, behavioral avoidance, and the external cues that may trigger these responses.  Allow them to give voice to their uncertainty and fears and show them that you have the information and experiences available in the preparation process to over come their worries and provide them with better means to handle the issues and concerns. As the witness becomes aware of their stress cues during the preparation process, they are encouraged to practice their coping strategies as early as possible, using newly learned responses.

Working with the problem feeling, thoughts and behaviors from the beginning of witness preparation and replacing them with more adaptive ones creates two benefits. First, because the stress spiral is weaker when it first begins, coping responses have a greater chance of managing the stress and of preventing it from getting worse. Second, each time the stress spiral occurs, its sequence of interacting responses is strengthened in memory. Therefore, early substitution of adaptive responses for maladaptive ones heads off such strengthening and instead reinforces more successful approaches to handling the testimony and the stress. As your witness practices better testimony skills and stress management  in response to previously identified internal and external triggers, the triggers lose their threatening meaning and become cues for the use of effective coping and testimony methods. Instead of becoming habituated to stress, they become confident of their ability to cope.

Teach your witness to apply some basic relaxation skills right from the beginning. One very effective and simple procedures is slow, deep, diaphramatic breathing. Another is to have your witness use Progressive Relaxation Techniques that use muscle tensing (to increase awareness) and have them increase the tension for a few moments and then let go.  Practice and repetition are the key to success. The repeated exposure to the previously threatening questions, issues and challenges now using the coping and testimony skills will allow your witness to become used to and more relaxed in the stressful situation. The application of relaxation techniques will increase confidence in managing the stress and actually reduce the anticipatory images and fears associated with testimony.

Another useful technique is to give your witness homework. Have them use the relaxation techniques and then imagine a scene where they are confident, alert, responsive and successful during questioning. Frequent rehearsals with the application of relaxation skills to eliminate imagery-induced anxiety cues and worrisome thinking is most helpful.  Homework assignments aim at encouraging frequent applications of all of the techniques to increasingly early detections of anxious responding.

Witness preparation is a “whole person” process. In order to prepare your witness to do an effective, credible, likable and competent job during their testimony, you must begin with their fears.

Picture: http://www.flickr.com/photos/steveleenow/387725964/

When Uncertainty and Anxiety Rocks a Person’s Life, Everything is a Threat

In a prior blog (Are National Events Affecting Jurors?) we surveyed the impact of pervasive National and Regional events have upon the psyche and sentiment of jurors. The crucible of significant societal and cultural events can and does create a sea change in experiences and attitudes in the day to day lives of our jurors.  We have experienced The Enron Effect, The 9/11 Effect, and The Recession Effect within the last 10 years. These ubiquitous national experiences touched the lives and opinions of many millions of potential jurors. Perhaps more than anything else in recent history, the one-two punch of the threat of terrorism within our borders and the devastation of job losses, tight credit, “upside down” mortgages and defaults has created an environment deeply colored with uncertainty and daily concern.

“What is known is this: There is a predominant direct and personal experience of financial hardship and economic uncertainty extending to all socio-economic levels. The working poor, working class and lower to middle class are hit hard and likely most dispirited. The upper middle have seen their investments and pensions evaporate before their eyes, creating distrust and anger. Even Donald Trump has been forced to file for Chapter 11 bankruptcy in his Vegas gambling hotels. GM and Chrysler are on the chopping block and nobody, not even the Japanese are making any money selling cars.

Expression of angst, anxiety, uncertainty and anger are replete in national polls, op/ed pages, and talk around the water cooler. Anxiety and depression levels are rising and are associated with the financial stresses currently increasing. Daily national media reports ra-ta-tat like hail on a tin roof and are inescapable. The political rancor and debate seems effete and ineffective as our political leaders and political parties fail to lead or have any vision. Huge “bailout” numbers are bandied about making the reference points of Bob and Mary Sixpack’s pay check seem like nickles and dimes. People feel small, ineffective, overwhelmed, helpless and stuck. Uncertainty pervades and the opportunities for the individual to effect any change or improvements, even in their own lot, seemingly pales to the immensity of the economic situation.”

Voir dire is the time to invite your venire panelists to talk to you about how these compelling life events are affecting them. Attorney, Jury Consultant and blogger Anne Reed solidly addressed the basics of voir dire questions in her article “Back To Basics: Nine Things To Look For In Voir Dire”.  Reed’s blog highlights issues surrounding “Sense of Control” and “Identification with the status quo”. Expanding within her categories below, there are some useful and focused questions that can reveal the jurors’ experiences and attitudes regarding the financial meltdown and recession. The more uncertain and aware jurors are about a threat, the more frightened they will be.   Being helpless and out of control of a threat makes it even worse.  Jurors experiencing negative moods and stress tend to be quick to judgment. Jurors who are intolerant of uncertainty can become anxious, inflexible, dogmatic and judgmental. They can become black and white in the way they address conflicts.

Uncertainty tolerant jurors can live with gray areas and tend to be less rattled, more able to comfortable with ambiguity and able to weigh and measures facts and features of a story before coming to a judgment. They have the emotional reserves to take the time to do the work of consideration and evaluation of the facts and narrative content.

As anxiety and uncertainty drive attitudinal and behavioral changes in the lives of jurors, we want to explore just who is most uncertain and how they have changed their behaviors as a way of evaluating their temperament and likelihood of imposing the results of their uncertainty on the parties to the litigation:

“6.  Sense of control.  Does this juror tend to believe that others and external forces control life events, or that people control their own destiny?”

The questions below are presented in questionnaire form. To use these in voir dire you should convert them to a relaxed conversational quality that invites discussion. There is no need to use all of these questions during voir dire, but selecting the form and content of the question to address either the case theory or fact pattern is always a good idea. Some of these questions would be best addressed to younger venirepersons who are just getting their financial lives started, others for retirees and folks in the later stages of their careers. These are ice breakers, not end points. Follow ups are necessary in each case.

How would you rate economic conditions in this country today?

Would you say that you are financially better off now than you were a year ago, or are you financially worse off now?

Did you worry about money yesterday?

Did you worry yesterday that you or somebody close to you might lose your/their job?

How worried are you about not having enough money for retirement?

How worried are you about not being able to maintain the standard of living you enjoy?

How worried are you about not having enough to pay your normal monthly bills?

How worried are you about not being able to make the minimum payments on your credit cards?

How worried are you about not being able to get a loan for a mortgage, car, business or tuition?

Looking ahead, do you expect that at this time next year you will be financially better off than now, or worse off than now?

“8.  Identification with status quo.  Does this juror feel she is a part of the “system,” or estranged from the “system”?”

 A fundamental difference between jurors with Democratic party or Republican party affiliation is the notion of the proper role of the government. An over simplified but useful way to look at this political philosophy differences is that jurors who see the role of the government is to provide opportunity and a level playing field may be more likely to see their role as a juror in that light. A juror who is strongly attached to the notions of the primacy of the individual and “personal responsibility” tends to evaluate others’ choices in terms of moral or personal failure and a deservingness for the outcome wrought by that failure.

Do you think the Country is going in the right direction to solve the employment and financial situation we are in?

Voir dire is your opportunity to identify the angry, disenfranchised, financially anxious and uncertain juror who is prone to quick judgments, blaming, reliance upon experts, conformity to a “position”, emotional rather than rational processing, and values laden decisions.

The trial advocate should consistently weigh the prevailing biases wrought by the times and temperments. There are some times that you can make these biases work for you rather than against you.  The juror most affected by the recession financially or occupationally is much more likely to be angry and looking for someone to blame. It’s up to you to decide if that presentiment helps or hurts your case.

Picture: http://www.flickr.com/photos/elizabethsarah/3189723706/in/photostream/

Preparing your case for trial involves packaging, that is, arranging your case fact pattern, exhibits, and witnesses within a framework and narrative that is readily understandable and readily merges with the values and expectations of your jurors. Any case can enormously profit from the qualitative results from pre trial jury research. The very best approach is professionally conducted focus group/mock trial research, but not every case can support the resources required for this effort.  In this entry, I’ll suggest a readily available, reliable and utilitarian alternative: National and Regional Polls.

Demographic profiles alone are dismally inaccurate in predicting the behavior or attitudes of any one particular individual. Such is the credo of jury consultants, marketing mavens, political pollsters, etc. Survey and polling data as analyzed according to demographic features cannot and will not predict how Joe Sixpack will vote on your jury. Polling has decent reliability and predictive validity when predicting the behavior or values of large populations, but not any single individual within the population.

Does that mean that attending to the patterns in the national or regional polling data is a waste of time? Far from it. Polling data is useful in imagining venire values and attitudes and in preparing a general deselection template based upon polling results from the general population. What national and regional polling data can prepare you to do is to make probabilistic determinations of what will be readily accepted, or not accepted within the venire and also aid in composing your voir dire and making  jury strike profile determinations.

You can generally rely upon the survey experts of national and university polling groups to apply the standard of care in population sampling, question design and measurement metrics. These polls can generally be accepted as reliable and valid measures of the issues being examined.

Survey professionals create reliable measurement metrics that reflect the relative weight of knowledge or attitudes of interest  that are further broken into demographic categories of Age, Gender, Income, Education, Political Affiliation, etc. That is, the demographics reflect a generalizable inference regarding the relative personal interest (values & motivations), knowledge base (education and occupation), and attention (application of time and knowledge resources) that accomplish better or poorer scores in the areas of interest to the researcher and to the trial attorney.

There are hundreds of useful polls and surveys readily available for free and on line.  In addition to the Pew Polls, there are the Harris Poll, the Gallup Poll, the Rasmussen Report,  just to name a few.  Major broadcasters like CNN  and major publishers like the Washington Post will sponsor or conduct polling. Many Universities regularly engage in regional or even national polling relevant to the trial attorney.

How to best use polling data?  Think profiles. Here are two examples.

In the most recent Pew Research Center News IQ survey the survey mavens of Pew take the “current events awareness” pulse of a representative sample of the adult American population. A survey such as this provides a very rich source of useful deselection profiling information for the trial attorney.

In an older, but very useful survey, the Pew Research Center Survey on Luxuries and Necessities reveals just what folks think they must have and what they won’t live without.  In polling such as this, trial attorneys can get a read on tangible elements of day to day life that can inform and guide the framing of damages arguments.

This News IQ survey provides the attentive user with some patterns and  indications about ‘what kind’ of juror is attending to, understanding and retaining information about the current economic events, for example. Individuals attend to those things that are personally or professionally salient, have some utility, advance or express their interests, and reflect their abilities and aptitudes. The relative scores of each demographic category reflect the success of individuals within these categories to apply their attributes and successfully absorb, comprehend and apply their acquired knowledge.

Information like the Pew Research Poll on Luxuries and Necessities is hugely valuable. The research shows that the public has absorbed technological conveniences into their day to day life and now considers them necessities to live an average life. These findings serve as a reminder that the opposite of that old saying about the Mother of Invention, is also true: invention is the mother of necessity.

Arguing the present and future needs of a harmed and disabled plaintiff, this data presents a solid picture of what is tangible and necessary for now and provides for a great example of how technology that has yet to be developed should be accommodated in the damages as it will be necessity in the future.

Polling data can be used to infer and extrapolate underlying values, attitudes, preferences and the like as they differentially apply to different demographic cohorts. For example, the News IQ data above shows that males, over 50, college grads, earning over $75K annually and affiliated with the Republican Party have the highest scores on the News IQ.  One can infer a greater attention to current economic and political events, economic self interest, application of more developed reasoning skills, etc. The trial attorney would then consider how these features might facilitate or frustrate your case theory and verdict.

The astute trial attorney is also always cognizant of cognitive errors such as the representativeness heuristic: where you wrongly assume commonality between a person and a group they appear to fit into. Knowing that the data does not predict the behavior or attitudes of any one individual, even if within the group defined, further voir dire is critical, of course.

In summary, national and regional polling on the full spectrum of attitudes, behaviors and beliefs representative of the population and therefore the venire panel is a virtual gold mine of pre trial jury information useful in framing your case and defining your deselection profile. Make yourselves familiar with the larger polls. Follow the jury consultants on Twitter (JuryVox, Anne Reed, and TheJuryExpert) that post jury related polling data and commentary on a regular basis. Become an educated consumer of this service that aids you in your pursuit of justice and a just verdict in trial.

Picture: http://www.flickr.com/photos/roboppy/9625780/sizes/m/

In the courtroom setting, the venire panelists have most recently been herded about by the court staff and filled out some form and watched some civics class video on jury service and mostly looked around at their fellows and shuddered to themselves about “This is a jury of MY peers? Oh, gawd! What am I doing here and when can I go home?”

Your first job is to tell them you will tell them about their job and help them do it. Once they have entered the courtroom for jury selection, they are disgruntled, impatient and also curious about what is going to happen next. To get a feel for the typical panelist’s experience, one only needs to click over to JuryExperiences.org and read the scores of commentary from folks who did their time for the common good. It isn’t pretty.

Trial attorney and advocacy skills teacher, Keith Evans writes, “Although they are obliged to sit there, they are not obliged to listen to you. Since you have a captive audience, you owe it to them to make the trial and entertaining as you possibly can.”  Yes, entertain them. Interest and participation are captured when you surprise them and pique their curiosity. Make ‘em laugh. Make ‘em crane their necks to see what’s going on. It’s your room and your spotlight. If you make it entertaining they will listen and they will speak.

You have to be relaxed yourself to make this happen. You will need a calmness and a ready smile. There is nothing that makes a panelist detach quicker than watching a “suit” sweat and stammer. While it is a subject for another day, you must have your script of issues for exploration written out and memorized. Don’t read your questions, you must know your lines by heart. The current media blasts regarding President Obama’s “reliance” upon a teleprompter is instructive. Look spontaneous and prepared and your perceived competence and credibility will be enhanced. Reading from notes at the podium makes you look like a lox. Cold fish isn’t something most jurors are excited about, or particularly want to talk to.

In this public setting panelists are struck by a couple of things: 1) You attorney’s are better dressed then they are, 2) The judge really does wear a robe and sits above everyone else, 3) It might be better to allow everyone to think them a fool, rather than opening their mouths and proving it; 4) Conversely, others will follow the old wisdom of “fools rush in where wisemen fear to tread” perhaps wearing a Princess Leia costume and wig spouting about the Force; 5) Oh my gawd! They want me to speak in public?!; 6) I hope they don’t ask my about my marijuana bust back in 1986, and finally, 7) What kind of stupid question is that!?

People asked to answer personal questions aloud in a group of strangers and also in a court of law will tend to not know exactly what to say or how far to go. They don’t want to look stupid, weird or bad. They don’t want to appear foolish any more than you do. Most will probably want to be PC. You can help them feel right at home.

An effective and engaging way to bring panelists to their ease in disclosing their beliefs and experiences is to practice using a normalizing preface to each line of questioning.

For example, using the issue of Damages:

“Many good folks have spoken up in the news and in politics about their concerns and discomfort regarding the amount of money paid to people who’ve been injured and win a lawsuit. It can get reasonable people pretty riled up.”

In this statement you’ve identified the area you want to discuss and you’ve set a behavioral standard that says that ‘good and reasonable people’  have those opinions.  The statement “normalizes” the attitude and creates a context that invites them to be like these other good folks and tell us all how you feel just like they do.

Next you move to the particular issue: “How do you feel about whether there should be upper limits on the amount of money jurors can give? Follow up, ‘tell me more’ or ‘what else?’. Then, “On the other side of the coin, how do you feel about whether there should be lower limits on the amount of money jurors can give?” Follow up. Keep the ball rolling and harvest as many folks as you can who will comment on these issues. If you are short on time, ask folks who feel the same as the initial juror to raise their hands and keep them up until you can identify them for later.

You are conducting a “town hall” meeting and you genuinely want each and every one of these citizens to make their values and purposes known. Smile, appreciate, thank them and identify those who have the strongest expressions of fervor for your later strikes for cause approach, but not right away.

Now move in, they are warmed to the task. “What problems would you have with being on a jury that’s asked for a verdict of $XM or $XXM? (If you can’t specify an amount for intangibles, try, “medical bills and lost wages are $X.XM, but the human losses are many times greater.)  What problems will you have being a juror if that the kind of money we’re talking about? Head off a staking out objection by this framing, “I’m not asking if you’d give it, but only what problems you’ll have if you decide it’s the right amount. Some people have problems giving that much. Mr. Juror, how do you feel about it?

Focus on the good folks who balk to give any “big” amount. Draw them out. Find out just how strong their objections are and just how much of a problem it would be giving that much.

Don’t worry about poisoning the jury by having them hear the opinions or attitudes that are more likely than not unhelpful to your case. Nobody’s empassioned statements are going to change anyone’s mind, but they might give another like minded panelist the impetuous to indicate agreement and speak up themselves.

Now further narrow the funnel and focus in: “During the trial, we’ll tell you about John’s pain and suffering. But there’s nothing on paper with prices attached, like there are with his medical bills. What trouble would you have including money in your verdict for pain and suffering? I’m asking you this because my own father thinks money for pain and suffering should never be given, because it does not make the pain and suffering go away. (Normalizing statement) Other people think money for pain and suffering is ok. How many of you are a little closer to people who think money for pain and suffering is ok? (Wait for hand raise and then…) How many of you are closer to my father who would have a little trouble giving money for pain and suffering because it can’t make the pain and suffering go away? Follow up, open ended e.g., “tell me about that” and get the cause strike.

Create a welcoming and open “town hall” space (tell them that what you want to do is do a townhall experience like Mr’s Obama and McCain.) Think that you are the moderator and your job is to create a dialogue. Encourage strong voices to disclose and set the mark high, so that folks who feel the same way but aren’t as willing or able will have a spokesperson, and then count the folks who would get in line behind your most extreme panelist. Follow up with each one and elicit the recognition admission from each that it would be difficult, if only a little, to step around their strongly held beliefs and values. Set the pick for the cause strike or at least red flag your peremptory strikes.

Repeat on each significant voir dire issue.

It’s about normalizing the attitudes and the act of disclosing it “among like minded, good people”. We like folks who are like us and expect fair treatment from them. Create an environment of open forum and encourage pertinent disclosures on issues and attitudes of concern. Smile, as they are your guests and you are simply making a seating chart for the table.

A good host will quickly learn who to seat and who to invite to the red car/blue car trial down the hall.

picture credits: http://www.flickr.com/search/?q=jury+selection&page=2

Twitter, IM’s, Facebook, YouTube, Google, BlackBerry, iPhone…. burn like a wildfire raging through the culture and the cultural template and social mores are being dragged along behind. What’s next?

“What are you doing right now?” First of all isn’t it amazing that anyone really gives a damn? Tweets bloom from the mundana of life. Followers are graced with descriptions of dinner menus, travel plans, and the other minutae of private lives, but in the public forum.  What has become of a felt need for modest privacy? Facebook and YouTube display private flotsam and jetsam for millions of eyes. You don’t have to wait for your 15 minutes of fame anymore.

Let’s face it. If you were schooled and raised (like I was) during the time of the Princess Phone (dial not digital), what happened in the privacy of your life was your business and no one elses. Gossip was the raison d’etre of neighborhood and church busybodies, but it was hearsay, at least. Parents discouraged overt disclosures of family business. Art Linkletter made us all laugh uncomfortably when “Kids Say The Darndest Things”.  Now that was another time. 

Today the gossip comes with streaming video and sound tracks. Uggh. Middle school kids take pictures of their “junk” with their cell phones and share them (sexting) with the entire school. What are you doing now? I’m squirming. Have we as a people lost touch with shame? Probably not, but now we have more access to opportunities to display shameful behavior.

The notion of privacy, modesty and appropriate public self disclosure has taken a hit with the onset of a technology and capacity that the society adopted before it was fully aware of what that adoption meant. Of course, Alexander Graham Bell’s mother in law was aghast when the telephone hit the streets and for the same reason.

Gen Y and the Wireless Generation know no other reality. Gen X is dealing with their sons and daughters umbilical connection with their cyborg appliances… We are the Social Networking Collective. Resistance is futile. These future and present new voters and jurors cannot even conceive of a social network limited to physical proximity and propinquity.

Wikipedia tells us that a cyborg is a cybernetic organism (i.e., an organism that has both artificial and natural systems). It’s no longer a point of conjecture of whether we as a species will commence cybernetic enhancements to improve upon our meager wetwear. Attached to our belts, ears and poking fingers are extentions of our cerebral cortex, eyes, ears, and voices that reach nearly immediately out into the world that is only limited by the cybernetic attachments of our fellow beings. I Cyborg.

When the furor arises over the use of iPhones, BlackBerries, laptops, cellphones or desktops, it sounds like the reactionary rattle of the Emporer Penquin Elders of  “Happy Feet”  to comtemporary jurors.  As Cybernauts, contemporary jurors simply perceive their enhancements as ego syntonic cortical extentions and their cyber community as their confreres and neighbors. Not using IM’s and Twitter to communicate is as alien as taking a vow of silence. There is an innocence to the use and to the meaning of enhanced cybernetic being. It’s natural. It’s accustomed. It’s me. Welcome to the Collective. Everybody is doing it.

Resistance is futile. As the paradigm changes so do social mores. Normative behavior “out in the world” requires no particular mindfulness as it is so ingrained as to be automatic, mostly. Even with the admonitions of the court, the Cybernaut juror activates the artificial enhancements as easily and readily as she switches hands to accomplish a manual task. 

Our system of justice is normed upon the right of the parties to present evidence and testimony that passes the rules of evidence. Only that which passes the test should be considered by the jurors and the rest relies upon juror common sense in the application of the instructions of law.

What if  “common sense” means the application of the senses as is common? What if the senses have now been enhanced by artificial cybernetic means? If the cybersphere has become an extention of “wetwear” memory, isn’t it “common sense” for a juror to Google? It just comes naturally to the growing swell of Wireless Gen (and older!) jurors. When the features and system of Google transmogrified to a verb denoting “accessing data” it illustrated our cybernetic enhancement and adoption of articifial systems as self.

Jurors hate being confused. They struggle with holes in narratives and evidence and create counterfactuals to fill those holes. They know that they can relieve their unease by moving the cursor to “search” and they just want to do a good job. How could it hurt to simply answer one or more of their burning questions?

What is the remedy? We could start by educating the judges to the realities of Cybernetic Jurors. Clearly blanket admonitions are inadequate to sever the cybernetic cortex from the Corpus Juror. Forming a more specific instruction with a rationale might be the way to go.

Voir dire examination on the familiarity and use of personal computing and communication devices is critical and not simply limited to finding out who has Facebook, MySpace, Twitter or Blog accounts. Carrying out a dialogue in voir dire that identifies jurors who would be prone to feel using their cybernetic enhancements is acceptable is a must… it also serves as a protracted civics course for the remaining jurors on why using the enhancements isn’t fair, appropriate or kosher.

Recognize that the coherence of your case story and the pillars of key evidence and testimony must be congruent, consistent and readily graspable by the jurors. Holes and incongruencies provokes juror discomfort, curiosity and a tendency to fill in the blanks. Counterfactual in-filling errors exist even without Google, but leaving a gap in the story or gap in evidence can provoke a juror to turn for answers to an extra-evidenciary source with “face validity” and which is unencumbered by vetting  or cross examination. We’d hope they turn to their fellow jurors, but why look stupid when you can sound smart and get the answers from Google?

During final arguments, it is essential that each adversary arm their potential juror advocates with words, phrases and rationales to use should they become aware that a fellow juror is searching for answers on line or posting tweets or blogging. Give the jurors a way to address the issue within the jury to create a group sanction of the “no search; no post” norms. Finally, make the jurors aware of how to address concerns directly with the judge should this issue emerge during deliberations.

Imagine a jury instruction that states: It is also your duty to determine the facts. You must determine the facts only from the evidence produced in court. You must not use any cybernetic enhancements to aid you in determining the facts. You should not speculate or guess about any fact or search for more information in Google. You must not be influenced by sympathy or prejudice, your FaceBook Friends, Twitter Followers, or YouTube Audience. You must not be concerned with any opinion you may feel the Wall Street Journal Law Blog has about the facts. You must not be concerned about any opinions your Blog commenters have about the facts. You are the sole judges of the facts. “You” means the biological and physical reality that exists when you are stark naked and have nothing in your hands. Step away from that iPhone and check your BlackBerry with the bailiff.

The evidence is mounting that the admonitions of the judge are insufficient to address and quell the use of cybernetic enhancements during jury duty. If indeed “Resistance is Futile” what becomes of our tenants of trial by jury? Do we change the rules or do we start dancing to a different drummer? You can’t stop the beat.

Picture by Kitetoa: http://www.flickr.com/photos/kitetoa/826007103/sizes/m/

If you want to know what influenced your jurors to make up their minds all you have to do is ask them… not! It’s a common and dearly held belief that a good question will unlock the juror’s head and they will be able to tell you exactly when they came to their epiphany, what provoked the sudden clarity, and why the scales fell from their eyes. Sorry… it ain’t so.  Consultants and psychologists have come to accept that a lot of the time we don’t have much of a clue what’s going on in our own minds, and there’s evidence to prove it. Here is a summary from PsyBlog ^1&2 :

“In a classic review of the literature, Nisbett and Wilson (1977) looked at many, many cognitive and social psychology studies conducted in the 1960s, 70s and earlier. These studies involved manipulating participants’ behavior. For an example, have a look at a report of this classic study of cognitive dissonance.

After reviewing all these studies where experimenters are messing with participants’ minds, Nisbett and Wilson came to the following conclusions:

1.      People are mostly unaware that their behavior or thought processes have been changed by the experimenter.

2.      Even if they are aware of the manipulation, they can’t identify the process of change that occurred.

3.      Most people cannot connect their changed thought or behavior with the experimenter’s manipulation.

Frustratingly, it seems that the most powerful workings of the mind are hidden away from view, even when we go rummaging around. If this is true, what about the explanations that people actually give for their behavior? Where do these come from and are they ever right?

Nisbett and Wilson reach two further disturbing conclusions:

1.      When coming up with their explanations, people don’t seem to access the correct thought process(es). If they do then it only happens when the explanation is plausible.

2.      Sometimes people do report the correct reason for what they’ve done, but it’s probably only a coincidence.

If Nisbett and Wilson are right it has profound implications for what we can know about our own thoughts and whether we can believe what other people say about theirs.

So accessing our jurors’ higher mental processes is difficult. It’s even quite easy to manipulate the reasons jurors give for decisions, judgments or actions. Worse than this, even when we’re not actively being manipulated, we regularly fool ourselves without the need of any encouragement.

Nisbett and Wilson (1977) provide five factors likely to have a huge effect on how accurately we report our own higher mental processes. These give us useful clues about when we’re most likely to be fooling ourselves.

1. Time

Many of our actions, thoughts and feelings are probably motivated by things that happened a long time ago. The problem is that over time we easily forget. Even things that only happened relatively recently may also pass quickly out of conscious thought, and so we don’t consider them potential motivators.

The reverse is also true. When cause and effect are close together we’ve got a much better chance of picking up on it.

2. Mechanics of judgments

Sometimes the mechanics of our thoughts are just plain weird. A good example is the study that found shoppers, when choosing their favorite from four identical pairs of stockings, were heavily biased towards the pair on the right (described here under ’shopping’).

There are all sorts of strange biases like this and they make it much harder for us to guess what’s going on in our own minds.

3. When nothing happens

Sometimes it’s of vital importance when nothing happens. For example if someone doesn’t like us they are usually not directly hostile, but they will often avoid showing friendly behaviors towards us. In this situation it’s hard to tell because an absence of something is difficult to spot.

Conversely it’s much easier to guess that someone doesn’t like us when they walk up and punch us on the nose. Then we get the message real quick.

4. Nonverbal

There’s all kinds of nonverbal behaviors that effect us. These include the exact type of smile we display, and even how we synchronize our body language with others.

But because nonverbal behaviors are much less likely to be consciously noticed, they are far less likely to be thought the cause of our thoughts or behavior than, say, a direct statement or act.

This fact probably helps to explain why we sometimes only get a vague feeling that a person doesn’t like us. This information will often be primarily conveyed through their body language which we only process unconsciously.

5. Mismatch between cause and effect

Sometimes great effects are produced by tiny causes. Think of the metaphor used to explain Chaos Theory about the proverbial butterfly flapping its wings over Brazil causing a huge storm in another part of the world.

Intuitively these sorts of explanations don’t appeal to us. Great effects should have great causes. Because of this we’re likely to miss the connection between cause and effect when there is a mismatch in size.”

Unwrapping the hidden processes

You’d like to believe that simply observing the deliberations will give you the key to handling your worst facts and show you the way to a verdict that makes the National Law Journal’s Top 10. It’s not sufficient. It’s better than nothing, but low fat yogurt is hardly gelato.

One useful and better approach to collecting data on juror attitudes, reactions, and feelings, etc. is to design and administer a questionnaire. Questionnaires can standardize questions and response formats in a way that allows for less confounded analysis of juror responses. Anne Reed of Deliberations posted some very useful ideas for generating questions useful in voir dire and questionnaires. Here are a few links to Anne’s great blog and it’s collection of questionnaires:

• Deliberations’ library of sample jury questionnaires
• How To Brainstorm Voir Dire Questions:  A Practice Exercise
• A Personal Collection Of Voir Dire Questions

Questionnaire design is a subject for another blog-day, but suffice it to say that a questionnaire is a measurement utility that requires expertise to compile. There is a whole area of psychology and statistics focused upon survey and questionnaire design. Stay tuned for a future blog on this subject.

The optimal approach consists of a repeated measures design where you use something akin to a supplemental juror questionnaire with detailed demographic and an assessment of case general and specific attitudes pertinent to the case theories and facts. This SJQ is administered during registration and prior to any exposure to the fact pattern and arguments. You want questions and a metric format that allow for a full range of expression pro and con. Both multiple choice and text based answers work best. The length and complexity of the questionnaire depends upon the issues of interest.

After your condensed presentation of the case in chief from each party, a second questionnaire is used to gather general impressions and to substantiate a pre deliberation standing for each mock juror.

Finally, post deliberation, a more specific “verdict” questionnaire is administered to asses the robustness of initial positions, show evidence of the impact of deliberation issues on attitudes and positions, and to allow jurors to express questions, concerns and ideas they have remaining.

These questionnaires do not ask for retrospective reflection on why they came to their decisions, rather emphasize “what, who, and how much, etc.”. Ratings metrics should measure relative intensity, strength and weakness of issue evaluation as well as giving them a chance to create a narrative that meets their attitudes, experiences and expectations.

Keeping Your Own Head Clear

It follows that simply being an interested observer is insufficient to glean the process of juror decision making dynamics. In fact, the most likely impediment to comprehending and appreciating the process is your own investment in your case and the biases and presuppositions you’ve become married to over the course of case development. Not only must you be aware of the factors that affect your jurors’ thinking; you must likewise be aware of your own inherent distortions and cognitive biases.

Knowing about each of these biases is more than abstractly important; it is essential for the process of reliable and valid pre trial jury research. Below are the most common, but not the only pot holes on the golden road to comprehension of your jurors’ emotional and reasoning processes:

Of particular concern is confirmation bias, which is your tendency to search for or interpret information in a way that confirms your preconceptions. This bias is simply a form of self inflicted blindness that makes you miss important features and content in the focus group jurors’ process as you do an end zone dance when you hear them echo your best stuff. After months or years (and beaucoup dollars!) of investment in your case theory, the cognitive dissonance that emerges when a jury “doesn’t get” your notions can really be upsetting. You’ll notice this dissonance when you find yourself getting fired up and wanting to argue with the jurors who are messing up your fact pattern and case theory. If you think, “they just don’t get it”, it’s you who’s doesn’t get it. The case is what the jury says it’s about, not you.

What often happens behind the observation mirror is a muttered, “I’d never ever let that guy onto MY jury!” (usually more colorfully exhorted). Regardless of your voir dire acumen, when an ardent juror pillories your client or elevates the opponent’s expert witness to sainthood, fantasy jury selection does not open your ears. Fundamental attribution error is the tendency for you to over-emphasize personality-based explanations for behaviors observed in your jurors while under-emphasizing the role and power of other situational influences on the same behavior. You dismiss the statement and the problem it reveals by dismissing the messenger. Big mistake. Frankly, these are the jurors you need to learn to love and listen to very carefully. They’ll teach you more then your clones.

These biases play out with your jurors as well as with you and your trial team. Caveat: Know Thyself and Thine Biases Lest They Take You Down and Leave you Stupid. Your insight will be imperfect, which is why it is nearly always important to have an objective and neutral interpreter of focus group data and deliberations who also happens to be an expert on jury behavior. Yeah, that means either a professional jury consultant or an experienced trial attorney who isn’t much interested in blowing smoke up your skirt. Your closest colleagues need not apply. Above all remain skeptical of easy or facile interpretations of your jurors’ statements, motives and decisions.

It is sometimes easy to form the impression that we know the reasons for the things the jurors do and think. Continually feeding this misapprehension is our need to feel in control of ourselves.

While it’s not always beneficial to announce to other people we have no clue why jurors made a particular decision, it’s extremely useful to admit this to ourselves. Or, at the very least, to be skeptical about the reasons we attribute to their thoughts and behaviors.

 References

1. When We Are Fools to Ourselves: http://www.spring.org.uk/2007/12/when-we-are-fool-to-ourselves.php#more-5187

2. Our Secret Attitude Changes: http://www.spring.org.uk/2007/12/our-secret-attitude-changes.php

3. Nisbett, R. E., & Wilson, T. D. (1977). Telling more than we can know: Verbal reports on mental processes. Psychological Review, 84(3), 231-259.

Photo: http://www.flickr.com/photos/kriegs/3297204597/sizes/m/

The utility and fairness of peremptory strikes has been the subject of discourse in the media, within blogs, and post jury selection in courtrooms and law offices of late. Opponents cajole that peremptory strikes are often capricious, discriminatory and patently unfair to the venire persons subject to the process.

 Nathan Koppel in the March 5, 2009 Wall Street Journal intones: “In the interest of fair trials, attorneys can dismiss people from jury pools for dressing strangely, for being fat, even for just looking at them funny. What lawyers can’t do is dismiss potential jurors based on their race, gender or ethnicity. Yet, attorneys and academics say, it happens all the time.” Three Strikes and You’re Out? Critics Seek Juror-Dismissal Cap

Apparently, Mr. Koppel hasn’t read the plethora of “how to get out of jury duty” material on line. How to Get Out of Jury Duty. Wearing a t-shirt emblazoned with “Barbie is a Slut!!!” will do it every time. Why in the world would any litigant, defendant or the State want someone with this intention and attitude making serious decisions? D’oh!

The snarky ridicule above suggests that the motives and rationale for elective strikes are superficial and shallow… or sinister. Through this argument the writer seeks to dismiss the process, purpose and the product of effective, thoughtful inquiry in voir dire and paint it with the broad brush of taint. He wants us to believe that any point of view and any potential juror is as good as the rest when it comes to fair and impartial. He asserts that because the peremptory process might be misused, it should be abandoned. He’s wrong and here’s why:

We are as a species riddled with cognitive and emotional biases and partialities. Many of us proudly wear our prejudice out into the marketplace. Most of us are blind to ourselves. If human beings were sublimely self aware, imbued with perfect honesty, acutely reasoned and rational, untroubled by strong preferences, unfettered by faithful adherence to unquestioned beliefs, ruled by compassion and fair play, and born to Vulcan parentage, there would be no need for the peremptory strike. A straight question regarding bias or predilection would result in a straight answer and the cause strike would suffice.

Peremptory strikes are an effective way to remove extremes of partiality. By nurture and nature, jurors and other humans acquire beliefs, prejudices, cognitive short cuts, and heuristic biases that bracket and define our capacity to experience and conceptualize “reality” as we see it. These predilections are the “truth” as we know it and will circumscribe our capacity to weigh and measure the facts, testimony and arguments proffered in trial. Extremes of partiality affect the capacity of an individual to follow the instructions of the court and render the parties fair and impartial justice.

Perhaps the best reason to support peremptory strikes is to cure erroneous refusals by the trial court to excuse jurors for cause. You can’t assume the judge really cares or understands the issues in your case as well as you do and you have the obligation of effective advocacy… Hizzoner doesn’t. I’m not big on judge conducted voir dire.

Litigants and defendants have the right to competent representation. Whether competent means clever is another matter. One thing is clear: it’s clever to probe for partiality and get the cause strike if possible. Competent counsel should be acquainted with the abundant social science research pertinent to trial practice in the area of decision making, cognitive and emotional bias, prejudice and partiality, etc. Competent counsel will use that knowledge base to form incisive and probing questions for voir dire. Competent counsel will have refined those questions into conversational invitations to the panelist to self disclose. Competent counsel will welcome and encourage disclosures from the panelists that are adverse to the case. Competent counsel will be unrelentingly polite all through voir dire. Competent counsel will apply judgment with discretion and discrimination when pursuing the cause strike and reserve the remedy of the peremptory for the necessary culling of the partial or probably partial panelist. Competent counsel will know that attitudes are more important than demographics always. Competent counsel will use a peremptory strike on the strangely dressed fat man who simply looks out of place when it serves the advocacy of his client and the issues of the case.

Count me in as a proponent of peremptory strikes. Until my crystal ball comes back from the shop, I want to be able to use my judgment and my strikes to deselect and get the fairest panel possible.

Photo: http://www.flickr.com/photos/emilyjh/134153057/