JuryVox

What happens when you ask them isn’t Memorex… it’s mostly guess.

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/