Phoenix Premises Liability Lawyer

BOOK REVIEW: SCIENTIFIC JURY SELECTION

By David A. Wenner, M.S.W., J.D.

Jury selection is one of the most critical tasks an attorney performs.  It is a process by which crucial decisions must be made under uncertain conditions.  The attorney is provided with very little information about each prospective juror.  Usually, there is no opportunity to gather the kind of information that is essential to making prudent decisions on which jurors will be fair. 

In practice, plaintiffs’ attorneys have too few opportunities to develop the necessary intuitions that build skill in the art and science of jury selection.  What’s more, the trend appears to be moving toward placing strict time limits on attorney-conducted voir dire, giving attorneys even less opportunity than in the past to secure the information needed to make intelligent decisions during jury selection. 

Lieberman and Sales’ new book, Scientific Jury Selection, is a welcome addition to the body of work on this topic.  The book reviews the existing research on jury selection and is an excellent resource for any attorney interested in understanding the science of jury selection.

What is striking about the book is its length—just over 200 pages.  The jury system is the cornerstone of American democracy.  Juries decide issues that affect the way we live; their decisions carry enormous social and financial consequences.  With so much at stake, one would expect that there would be a plethora of psychological and legal research on the topic of jury selection.  Understanding how juries make decisions would be of enormous value to anyone whose fate, potentially, could rest in the hands of a jury.  Yet, as this book demonstrates, there is a dearth of research on the subject of jury selection.  The topic simply has not sparked much academic interest, given its importance in our society.  Moreover, the research that Scientific Jury Selection cites provides few clear answers for a practicing attorney.

The book begins with a brief history of scientific jury selection, however, it really is more of a history of jury consultants.  It provides an overview of the research tools an attorney can employ to prepare for and conduct jury selection.

Chapter 3 presents an informative discussion of community surveys, which attorneys underutilize.  This chapter outlines how surveys can help lawyers identify jurors whose attitudes may be either favorable or unfavorable to their cases—attitudes that may not be apparent in analyzing the cases themselves.  With more certainty than focus groups, community surveys can reveal patterns that predict verdict preferences and clearly identify jurors who are likely to favor one side or the other.  Surveys have shown that certain patterns of answering questions during voir dire correlate with verdict preferences, although those patterns may not be apparent to the opposing party.  In essence, community surveys can help an attorney be more comfortable in predicting juror preference because of the large sample sizes they involve.

Chapter 4 discusses the use of demographic characteristics in jury selection.  This chapter provides little practical information and can be summarized by the following sentence: “The research described in this chapter has generally shown demographics to be an unreliable predictor of juror behavior.”  Despite what the authors suggest, in our own research, political orientation, religiosity and wealth have provided critical information about verdict preference.  (See “Overcoming Juror Bias” Seminar.)

Chapter 5 gives a good overview of how personality characteristics and thinking style influence behavior.  For instance, the authors discuss Lerner’s “belief in a just world” construct.  Lerner postulates that people have a need to believe that they live in just world.  (See Leo Montada and Melvin J. Lerner, Eds, “Responses to Victimization and Belief in a Just World,” 1998, Plenum, New York.)  In other words, good things happen to good people, and bad things happen to bad people.  As theory postulates, this core belief provides a sense of meaning and control in one’s life.  The world is a predictable place, and people deserve what they get, good or bad.  Thus, a juror who judges a plaintiff’s behavior is more likely to say, “The plaintiff must have done something to bring about this misery.”  Identifying which jurors have a high need to believe in a just world helps an attorney select those jurors who have a greater-than-normal disposition toward blaming the plaintiff.  

Other personality characteristics discussed in chapter 5 include dogmatism, authoritarianism and locus of control. 

Authoritarianism is a personality trait that holds some research promise for plaintiffs’ attorneys.  There has been a great deal of research on this topic outside of the legal context over the past 50 years.  Authoritarians often are harsh, dogmatic, easily lead and self-righteous.  For the plaintiffs’ attorney’s purposes, there may be a correlation between authoritarianism, and jurors who are likely to be highly critical of the plaintiff’s conduct and hold them to a standard that those same authoritarians openly violate.  There are short questionnaires that measure authoritarianism, which can be incorporated into juror questionnaires used in focus groups.  Such informal research may indicate that a more formal research project on this topic is warranted.

Another useful personality variable the authors discuss that may be helpful during jury selection is locus of control.  Locus of control helps identify where people fall on a continuum running from “people are responsible for their destinies” to “things that happen to people are beyond their control.”  A person who rates high on a measure of internal locus of control may believe that a plaintiff is responsible for his own undoing, and no one else is or should be to blame, even to a greater degree than the law requires or allows.  In other words, in a case where the plaintiff is not legally at fault, such a juror still may blame the plaintiff because of a prevailing need to believe that we all are responsible for the events in our lives, and it is morally wrong to blame others.  This thinking style is discussed in the American Association for Justice’s “Overcoming Juror Bias” program and is incorporated into the Jury Bias ModelÔ, which is the subject of the program.  The locus of control measure may be useful in helping attorneys identify jurors who may be harsh in judging the plaintiff’s conduct.  It is a useful area for future research, however, the authors could have provided more insight into how they believe locus of control can be used in real time during jury selection.

Two other measures that social psychologists have researched at length are not addressed in Chapter 5, but are worth mentioning.

The first is the need for closure.  (See, Arie Kruglanski, “The Psychology of Closed Mindedness,” 2004, Psychology Press.)  This measures a person’s level of open-mindedness.  How open-or closed-minded a juror is may provide valuable information about how much ambiguity and confusion a juror is willing to tolerate.  Obviously, ambiguity and confusion exists in abundance at trial.  Also, a juror’s need for closure may reflect his or her level of conservatism and religiosity.  As such, identifying a prospective juror’s need for closure may provide indirect measures of attitudes that we know are correlated with verdict preference, such as attitudes toward tort reform and political orientation.

The second measure that is omitted is the need for cognition.  (See Richard E. Petty and John T. Cacioppo, “Communication and Persuasion,” 186, Springer-Verlag, New York.)  This personality trait has been the subject of a great deal of persuasion research.  It measures how much individual jurors prefer an effortful, analytical thinking style and influences the types of arguments that may persuade them.  Again, identifying which jurors have a high or low need for cognition may provide important information about which jurors will be receptive to which types of arguments.  Moreover, once these jurors are identified, attorneys can reframe arguments to resonate with their need for cognition.

If an attorney is looking for a book that provides an overview of the existing research on jury selection, this book is an excellent choice.  On the other hand, if an attorney wants a practical book on jury selection, this book will be of little help.  Nevertheless, in this day of vanishing voir dire and the need to write ‘Brandeis Briefs’ to persuade the courts of the importance of jury selection, this book is valuable resource and worth the investment.