Personal Injury Attorney

A BRIEF LOOK AT OVERCOMING JURY BIAS

David A. Wenner and Gregory S. Cusimano

In the spring of 1994, ATLA's National College of Advocacy (NCA) convened its first focus group college in Charleston, South Carolina.1  The authors were faculty members on this groundbreaking college.  Over 30 trial lawyers from around the country attended.  Some 60 focus groups were conducted with several hundred people participating.  On the last day of the college, the faculty and attendees met to analyze the focus groups. The similarity of attitudes we found among the various focus group discussions was striking.  For instance, the way in which one focus group talked about plaintiff's responsibility was remarkably similar to that of other groups.  Many of the attitudes towards plaintiffs were unjustifiably negative.  From the several hundred people sampled this weekend, a clear anti-plaintiff bias emerged.  We were hoping the results were an anomaly.  Others felt the results only too well confirmed what they had long known and had been hearing in courtrooms across America.

A year later in the spring of 1995, the NCA held its second focus group college in Houston, Texas.  Like the college in Charleston, on the last day, the results were analyzed.  Remarkably, the attitudes were strikingly similar to those in Charleston.  Often, the focus group participants used the exact same words that the Charleston focus group participants used to describe the plaintiff and his conduct.  The focus group participants in both colleges appeared to be fluent in the tort propaganda rhetoric.  A clear anti-plaintiff bias again emerged.  Coincidence was an insufficient explanation for the results of the two colleges. 

By 1995, we were convinced that focus groups were essential for trial lawyers to combat this anti-plaintiff bias.  At least, focus groups alert the unsuspecting trial lawyer to public perception before the "real jury provides a more sobering reality."  The authors were also convinced a study of jury attitudes was necessary to determine how widespread this bias is and whether anything can be done about it.  In April of 1995, ATLA appointed a blue ribbon committee of trial lawyers to study jury bias.  The authors chaired that committee. 

To begin the research, we participated in hundreds of focus groups.  In addition, the authors continued participating in ATLA's focus group college, the Case Workshop, which has now been held over ten times.  Finally, we exhaustively reviewed the social science literature.   Through our research, we identified five attitudes that negatively influence juror judgment about plaintiffs.  To combat these attitudes, we proposed "ten commandments" for trial lawyers that can minimize the effect of these attitudes.  A thorough review of the five attitudes and Ten Commandments is the subject of ATLA's "Overcoming Juror Bias" seminar.   In this paper, we will address two of the attitudes and three of the commandments.

Today's Situation

Juror bias has long been the subject of controversy among judges, legal scholars and trial lawyers.  Eliminating juror bias is indispensable to a fair trial.  In the treason case of Aaron Burr, Chief Justice John Marshall, sitting as trial judge, wrote, "the main reason the jury system is respected is the public expects a juror to be unbiased." The Chief Justice explained:

Why do your personal prejudices constitute a just cause of challenge?  Solely because the individual who is under their influence is presumed to have bias on his mind which will prevent impartial decision of a case according to testimony.  He may declare that notwithstanding these prejudices, he is determined to listen to the evidence and be governed by it: but the law will not trust him . . . Such a person may believe that he will be regulated by testimony, but the law suspects him, and certainly not without reason.  He will listen with more favor to the testimony which confirms, than to that which would change his opinion; it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment is not made up in the case.

Marshall's keen analysis of jury bias is on point today.  Marshall would likely not be surprised today that special interest groups, the insurance industry, corporate America and certain political groups have combined to use strategically any means available to create juror bias.  These propagandists have worked hard to create a negative image of plaintiffs, their lawyers and the civil justice system. 

One tort reform group boasts that it has been a source of information for more than 250 news stories, including an ABC story entitled, "Grief to Greed," a CBS piece entitled, "See You in Court," and the Oprah Winfrey show entitled, "Has America Gone Lawsuit Crazy?"   Such groups readily admit that they "use every means imaginable in advancing the anti-lawsuit abuse message."   These groups brag that they use every means possible to carry their message directly to the public, including hard-hitting television ads, billboards and radio ads.  These propaganda entrepreneurs use so-called “educational” public relations campaigns and political campaigns , to motivate the public about their message.  Presidential candidate George W. Bush promises to carry the mantle for these groups.   Recently, Bush had this to say:

Too often, our courts aren't serving people, they are serving lawyers . . . most lawsuits are threatening jobs and denying access to the courts for those who have legitimate claims.

The goal, of course, of these campaigns is to firmly imbed an anti-plaintiff bias in the public psyche.  That goal, many would argue, and our focus groups confirm, has largely been achieved.  These efforts, that have gone largely unnoticed by our courts, have caused juror bias to reach a fever pitch.  Cases are now tried against the backdrop of a constant drumbeat of negative campaigns against plaintiffs, their lawyers and the justice system.

To make matters worse, in recent years, many high profile cases have placed the justice system center-stage.  The combination of these high profile cases and tort propaganda has instilled in the public mind a jaundiced view of the justice system, plaintiffs and their lawyers.   This has been a veritable recipe for juror bias.  Today the need to address juror bias has never been more acute. 

Tort Propaganda

The 1994 brainchild of the Republican Party, the "Contract with America," called for commonsense legal reform as its ninth prong of a ten-point program.  This ushered in a frontal assault on the civil justice system and was the culmination of years of effort to bring this issue center-stage.  The Republican Party vows to keep tort propaganda in the forefront of public debate. 

Typical of the propaganda are these comments from the Citizens for a Sound Economy:

In recent years, however, the tort system has expanded far beyond its purpose.  Jurors award compensation to claimants that are all out of proportion to the harm suffered.  In certain circumstances, the defendant is ordered to pay even if he is not at fault.  Thus, the tort reform system has become a 'legal lottery' and a social insurance system.  The fact that juries often feel sympathetic to a claimant - - regardless of whether the other party was at fault encourages frivolous lawsuits to be filed.  Defendants often find themselves paying to settle these cases to avoid the legal expenses of defending against the claim.  In addition, a victim is often compensated even if the victim's behavior partly caused the accident.  This violates the idea of individual responsibility and fosters an entitlement mentality.

Who benefits from this system?  Lawyers who will file the most ridiculous case just to secure a settlement, and those claimants who win the "legal lottery."  Who pays?  Consumers pay in the form of higher prices for products and services.  Moreover, consumers are deprived of products and services that are simply not available because liability insurance is too expensive.  For instance, the tort system has prevented dying patients from receiving experimental medical treatments and has also caused local governments to stop providing certain public goods, such as swimming pools and playgrounds.

This rhetoric is very clever. Message one, juries are out of control.  Message two, the civil justice system is a "legal lottery."  These phrases are likely the result of focus group research showing this message is persuasive. Message three, plaintiffs claim to be victims.  Using the term, "victims," is often a code word for "welfare recipients."  Use of the phrase, "entitlement mentality," is no coincidence and links plaintiffs to welfare.  These propagandists understand that public assistance often evokes a visceral emotional response.  The link to welfare also elicits images of welfare recipients who are personally responsible for their predicament and therefore are undeserving of help.  It is the equivalent of wielding an image of a person driving a flashy Cadillac to pick up their welfare check.  In other words, plaintiffs, like welfare recipients, are asking for a free ride at the public’s expense or worse, ripping the public off. Message four, plaintiffs do not take personal responsibility thereby violating a powerful cultural norm.  Message five, the only ones benefiting from the system are "lawyers who file" the cases - - plaintiffs' lawyers.  Message six, the public is the loser in the system.  The authors have repeatedly witnessed focus group participants using these attitudes during mock deliberations.  This is no accident.  The constant drumbeat of propaganda is working. 

The "Contract for America" even brought its propaganda to the floor of congress in 1995.  One congressman summed up the sentiments of the rank and file propagandists:

Our courts have become lucrative feeding ground for unscrupulous lawyers and greedy plaintiffs who abuse the system.  Litigation is spinning out of control when a woman can sue over spilt coffee and walk away millions richer.  The Republicans will work to curb this lucrative feeding frenzy by passing a commonsense product liability and legal reform.

Of course, the congressman is referring to the infamous "McDonald's" case.

Two Cornell law professors framed the tort propaganda influence pedaling this way:

Using every technique of modern media shaping, tort reform groups sought to assure that the public belief of products liability law was the cause of this threat to our way of life.  The message was carried, and is carried, through a variety of media: print; media advertising campaigns; television appearances on the "Today Show," "Good Morning America" and the "McNeil-Leher News Hour"; purchased television time; and reports of surveys of business and public opinion . . . Among those apparently influenced were the appellate and district court judges who at least since 1985, have increasingly favored defendants.  The judges ultimately underlie the quiet revolution . . .

Tort propaganda is well orchestrated and persuasive.  Tort reform slogans, like "lawsuit abuse": "we all pay, we all lose" are used by jurors to rationalize verdicts in favor of defendants.   Jurors who believe such slogans cannot be fair.   

Tort propagandists also use fear to sell their message.  They imply that these suits, if allowed to continue, will cost the public a great deal of money.  This message is compelling.  Imagine trying to persuade jurors with this mindset.  It asks jurors to consider the personal consequences of the verdict.  This appeal certainly is improper if made by a party during a trial.  Imagine a lawyer for an automobile manufacturer asking a juror to consider how much the plaintiff's verdict will cost each juror the next time he purchases an automobile.  This type of appeal turns the case into one against each juror.  Thus, the message is personally relevant for each juror.

Unfortunately, the media, indirectly, reinforces the tort propagandists' message.  A recent survey found the media over-represents cases in which plaintiffs win and the amounts awarded.  In fact, a review of coverage of tort litigation in 249 articles contained in five prominent news magazines over a ten-year period found the media reported the plaintiff winning 85% of the cases and the average award to be almost $6 million.   Obviously, these statistics do not represent most tort cases.   The tort propagandists, though, want the public to believe they do. 

The rhetoric does not stop.  Consider this recent newspaper ad, "The All-American Blame Game":

Whatever happened to good old-fashioned responsibility?  We have now become a society of victims in search of a scapegoat to sue whenever anything goes wrong.  If you believe that plaintiffs' lawyers tell us, we are a nation with more victims than any other country in the world . . .

Unfortunately, the blame game, while very lucrative for the lawyers, costs you and me plenty.  The United States civil justice system is the most expensive in the world.  It not only costs $152 billion annually, but it also decreases economic productivity and employment.  If we Americans continue to refuse to accept responsibility for our own actions, we may all have a more serous price to pay.  Isn't it time we stopped letting the trial lawyers play the blame game at our expense?  

This passage is a good example of the two attitudes we consistently have seen in our focus groups used against plaintiffs - -  “personal responsibility” and the “anti-plaintiff bias.”  We will address each of these.

Personal Responsibility

In a recent survey, Americans were asked to rank 15 values in order of importance. The value rated most important was personal responsibility. More than 95% of those surveyed called personal responsibility very important.  What’s more, this is consistent across gender, race, class and political preference.  

Tort propagandists understand the importance of the norm of personal responsibility. They love to cloak themselves in the aura of the norm. They express outrage towards norm violators at every opportunity. They like to think of the world as rewarding those who are personally responsible and punishing those who are not. Personal responsibility is considered a sign of moral strength. Those who are not responsible are immoral and lack backbone. The self-anointed representative for conservatives and morality, William J. Bennet, writes that a foundation of virtue is personal responsibility.   He points out that to respond is to answer and account for your conduct. He defines irresponsible behavior as immature behavior.  He explains:

Responsible persons are mature persons who have taken charge of themselves and their conduct, and own their actions and own up to them - - - who answer for them.

Thus, responsible conduct is seen as simply a matter of choice. These metaphors are deeply ingrained in conservative thought and form the guiding principles of the propaganda. They have traditionally been used as a sword to impale the plaintiff.  The propagandists suggest that if only the plaintiff had acted responsibly he would not have to be asking for a handout from someone who has been virtuous and been rewarded with the fruits of his labor. Plaintiffs are unjustly trying to steal from those who have achieved success through their hard work. The propagandists want to the public to believe the metaphor that people get what they deserve aptly applies to plaintiffs.  Tort propaganda has effectively draped plaintiffs with such metaphors. These propagandists see themselves engaged in a cultural war and use plaintiffs as a poster boy to rally the troops. It is imperative that we combat these metaphors, make personal responsibility our message, and use it against defendants.

   George Bush, in his announcement speech for president, exclaimed:

My first goal was to usher in the responsibility era.  The era that stands in contrast to the last few decades when the culture has clearly said: ‘If it feels good do it.’  If you’ve got a problem, blame someone else.  Each of us must understand we are responsible for the choices we make in life . . . we will be prosperous if we . . . fight for meaningful tort reform.

Responsibility is cleverly placed against the backdrop of the “fight for meaningful tort reform.” This is no coincidence. The point is the propagandists’ want the norm of personal responsibility center-stage in every case.  If we choose to ignore it, it will come back to haunt us.  If we make personal responsibility our message and use it against the defendants, we can recover the moral high ground.   

The plaintiff must make every effort to show that he is being personally responsible in family, work and community.  We must show concrete examples of how the plaintiff has been personally responsible even in the wake of incredible adversity.  Only then can we reframe juror perception of plaintiffs playing the blame game to that of holding the irresponsible defendant personally responsible and making him account for his action. 

Our focus groups have show that the norm of personal responsibility emerges in every case. Right or wrong, the public is fed up with what appears to be the refusal of people to take responsibility for their own actions.  This resonates deeply with the public.  In focus groups, members subscribe to the idea of personal responsibility and harbor the suspicion that people who bring lawsuits do not.  If there is a perception that plaintiff has not been personally responsible, a preference to impose responsibility on the plaintiff tends to arise. Thus, our focus groups have shown that if you expect jurors to hold someone accountable, you must first demonstrate that the plaintiff was responsible. There appears to be a clear proclivity to hold the plaintiff to a higher standard of personal responsibility than that to which the defendant is held.      

If personal responsibility is a norm firmly rooted in the minds of our jurors, shouldn’t we incorporate it in our trial story?  Absolutely.  Reclaiming personal responsibility as our message restores to plaintiffs the moral authority that propagandists are trying to steal from us. 

The Anti-Plaintiff Bias

The second attitude that is used to the disadvantage of plaintiffs is finding fault with the plaintiff.  We refer to this attitude as the anti-plaintiff bias.  Our focus groups have shown that jurors are often unjustifiably inclined to find fault with the plaintiff, even in cases where evidence of contributory negligence is absent. 

There is ample empirical data demonstrating that an anti-plaintiff bias exists.  One survey of actual jurors in tort cases found that about four out of five jurors think, "people are too quick to sue" rather than trying to settle disputes.   Only a third of the jurors feel most people who sue have legitimate claims.   Jurors are suspicious of plaintiffs and their lawyers.   In contrast, jurors are not generally suspicious of defendants and do not scrutinize the defendants' conduct to the same degree as that of plaintiffs.  Our own research shows that 80% of our focus group members think there are too many lawsuits; and 68% believe that lawyers encourage people to file unnecessary suits. 

Researchers have documented a “blame the victim” effect that occurs naturally in the trial context.   Jurors may be inclined to blame the plaintiff to avoid thinking that they may suffer a similar fate.  Psychologists have labeled this "defensive attribution."  Jurors generally do not consciously appreciate the strong influence their feelings have on their perception. In other words, jurors do not recognize their role in construing the plaintiff's conduct.  Instead, jurors assume they are unbiased and perceive the plaintiff as they are.

People want to believe they live in world where good things happen to good people and bad things happen to bad people. The idea that a person has suffered undeservedly is so threatening that people often feel compelled to resort to condemning the injured plaintiff. People want to believe they live in a predictable world over which they have some control. Moreover, when jurors are confronted with a severely injured plaintiff they may feel anxious and blame the plaintiff's irresponsible behavior for the discomfort. Therefore the more severely a plaintiff is injured the greater the likelihood jurors will engage in defensive attribution or rely on this notion of a "just world."
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Moreover, when jurors imagine facing the same situation the plaintiff faced, they imagine how their "ideal self" would have behaved.  Jurors do not ask "Have I ever acted like that?" instead they ask, "How would I act if confronted with that situation?”  Obviously, it is better if jurors take the former perspective.  When judging the plaintiff’s conduct, it is better if jurors recognize human frailty that we do not always act perfectly, and sometimes think with our heart and not our head.

Jurors also may make the "fundamental attribution error."   This is the tendency to assume that if someone has suffered an injury there is someone to blame.  For instance, jurors may conclude that a plaintiff who tripped and injured himself in a department store was careless and inattentive rather than concluding that the store created an environment to draw the shoppers' attention away from the floor and towards a display.  The error occurs because jurors are less inclined to focus on the situation that the injury occurred than the person in the situation.  So, jurors are naturally inclined to focus their attention less on the confusing store displays and wet floor than on the person who tripped.  Later, we will discuss how the focus of attention can influence judgment. Suffice it to say now that the trial lawyer’s goal in judging the conduct of the parties is to refocus juror attention on the situation rather than the plaintiff and on the defendant and rather than the situation.

 Defendants frequently use the situation to excuse their conduct. For instance, a defendant may argue that he we was faced with an emergency and that is why he had no choice but to behave in the manner he did. In effect, that makes the situation more salient than the defendant. That is why it is imperative to make the defendant decision makers more salient than the situation.

This biasing error has been termed, "fundamental," because it is pervasive in judgment.  Again, jurors are of its affect on judgment.  This is all the more incentive to understand and use it to our advantage.  The authors are convinced, however, that the constant drumbeat of tort propaganda has increased the tendency to concentrate attention on the plaintiff's conduct more than would naturally occur. We have repeatedly seen in our focus groups that jurors blame plaintiffs even when there is no evidence offered of contributory negligence.  Thus, there is a greater tendency we postulate to engage in the fundamental attribution error with plaintiffs than defendants. 

Recent surveys have confirmed the existence of a "blame the plaintiff" mentality:

The underlying image of the Robin Hood jury is its supposed tendency to be overly sympathetic towards the injured plaintiff.  Yet results from public opinion surveys and studies of jury decision making clearly show that the public is quite suspicious of, and sometimes downright hostile, to civil plaintiffs.  The majority of Americans, including civil jurors, believe that we are in the midst of a litigation explosion in that many lawsuits are without merit. . . more than 80% of the jurors stated that there are too many frivolous lawsuits today.  Just a third said that most people in court have legitimate grievances.  

These tort propagandists, who fancy themselves as norm entrepreneurs, are constantly chipping away at the public trust in the civil justice system. 

A recent experiment demonstrates the anti-plaintiff bias.  In the study, subjects were asked to consider the following case:

Mr. and Mrs. Roe are residential customers of the defendant Hokan Gas, which provides propane fuel.  The valve that controls the flow of propane from the tank (owned by Hokan) on the Roe's property to their appliances in the house is at least 30 years old.  Hokan, as requested by their insurance company, has recently begun to replace all valves over 15 years old, but has not replaced the Roe's.  One Sunday afternoon, Mr. Roe was resting in the living room when he smells gas and hears a hissing from the kitchen.  He goes outside and gets a telephone repairmen, who happens to be working on the property, to check out the smell and the noise.  They go to the kitchen, where the noise is so loud that the repairman has to shout, 'Let's get the hell out of here!'  They go out the front door into the yard.  Mr. Roe runs away from the house, following the repairman, when the house explodes.  He dies a week later from his injuries.  The repairman is unhurt.  Even though Mr. Roe and his wife had their first baby five months ago, at the time of the explosion, Mr. Roe was the only person home.

When the results were analyzed, experimenters found that jurors used to decide the case legally irrelevant matters that were generally detrimental to the plaintiff.  At times, jurors made up evidence, like the plaintiff should have been able to foresee the explosion when the facts did not allow for such an inference.  Researchers have long known that people go beyond information given and fill in details when making judgments.   What is troubling is that these imaginary facts were harmful to the plaintiff.  We have seen this repeatedly occur in our focus groups.  The authors of the study explain:

Some subjects literally made up evidence, claiming, for example that the homeowner may have caused the leak himself or assumed the homeowner must be held at fault for the valve even though nothing in the facts would lead to such a conclusion.  These results are consistent with other research on the subject.

The study also shows that jurors double discount the damages by considering the plaintiff's blameworthiness when evaluating both fault and damages.  The law considers these two distinct decisions.  First, jurors are supposed to determine the amount of fault attributed to each party and next determine the gross amount of damages.  The court then adjusts the verdict accordingly.  The study shows that the plaintiff's blameworthiness reduced the amount of the defendant's fault and the plaintiff's damages. So, for instance, if jurors find the plaintiff 30% at fault and the damages to be one million dollars, the jurors award $700,000. But, the court would then again reduce the verdict by another 30% to $490,000. That is a substantial reduction in the award. We have repeatedly seen this occur in our focus groups during deliberation.  We counsel trial lawyers to clarify the jury’s task during closing when contributory negligence is in issue. 

After repeatedly seeing firsthand the effect of the anti-plaintiff bias, we began investigating whether we could reduce its impact on juror decision making. When jurors enter a courtroom, they bring with them the same habits or decision-making tools that they use in everyday life.  We posit that the trial lawyer must understand these common habits people use in decision making to be effective in trial. As indicated earlier, there has been an immense amount of research in the general field of juror judgment and decision-making.  Through surveys, focus groups and analysis of the literature, we have identified ten biases that can be extremely helpful in trying cases era tort propaganda.  For purposes of this paper, we will address three of the ten.  

THE BIAS WE CAN USE TO OUR ADVANTAGE

The Confirmation Bias

The confirmation bias simply refers to the tendency for jurors to search for evidence that confirms their beliefs, critically scrutinize un-confirming evidence and interpret ambiguous evidence as consistent with their beliefs.  We consistently see jurors accept supportive facts and vehemently discount non-supportive facts.  To understand this bias, we must understand the concept of schemas.

People organize their knowledge, beliefs, theories and expectations in cohesive units called schemas. When a person encounters a new experience, he has a cognitive framework for understanding that experience.  Schemas influence perception.

Juror schemas, thus, serve as framework for interpreting the evidence.  Prototypes are role schemas.  They help jurors understand how someone will behave in a given situation.  If jurors expect a party to behave in a certain manner and if the party violates those expectations, jurors may feel the party has acted improperly.  Similarly, scripts are event schemas.  They help jurors understand how an event should unfold.  If events have not occurred in the manner jurors expect, they will look for the cause. 

When jurors enter the courtroom, they bring with them their schemas. For instance, a juror who has a sick child and who frequently visits an emergency room will have a well-developed schema about the role of an emergency room doctor, specialists, and how a patient should behave in that environment. During a focus group in a medical negligence case concerning an emergency room physician and a specialist, a juror who fits the foregoing description attributed less fault to the emergency room doctor than to the specialist involved in the care, because, in her experience, the emergency room doctor is a "generalist" who hands the patient off to a specialist.  The specialist was judged more knowledgeable and culpable.  This juror's schemas had a powerful biasing effect on the way she viewed the evidence.

During deliberation, jurors are more likely to recall evidence that confirm their schemas.   Evidence consistent with juror schemas may be particularly memorable because jurors may pay greater attention to evidence consistent with their beliefs.  But, jurors are also likely to recall events that which are inconsistent with their schemas.  Therefore, if the party's conduct conflicts with juror schemas, it is also likely to be memorable during deliberation. Unfortunately, in conditions of information overload, like most trials, the ability to recall incongruent information may disappear because jurors may not have sufficient cognitive reserves to reconcile the inconsistencies.   The goal for the trial lawyer should be to discover how to describe the defendant's conduct in a manner that is inconsistent with juror schemas and the plaintiff's conduct consistent with juror schemas.  The trial must make the defendant’s conduct vivid so it is memorable during deliberation.  

Every juror will likely have some knowledge, belief, theory or expectation regarding matters they will hear during a trial.  Therefore it is imperative to discover which schemas jurors will likely use to interpret the evidence. The best way we know how to systematically do that is focus groups. During the focus group the trial lawyer should pay particular attention to the beliefs, theories and expectation participants have towards the parties, causation and damages. It is extremely critical to identify which schemas jurors find important. We have seen time and again, jurors rely on these schemas to resolve ambiguity, supplement information and reduce information overload.

Once we identify important schemas, we can use these schemas to tell the trial story. This is extremely important because jurors tend to pay attention to evidence that is consistent with their schemas.  In other words, jurors are much more likely to attend to and accept evidence which is consistent with their beliefs and expectations.   In contrast, jurors are prone to discount information that does not fit their schemas. 

 We must package our evidence in a way that fits juror expectations about how the plaintiff should have behaved and conflicts with expectations about how the defendant should have behaved. Then, it is more likely that jurors will interpret the evidence in a manner that favors the plaintiff. Remember, it is much easier to utilize a juror's belief than to try to change it.  Therefore, knowing what jurors are likely to find agreeable will help tell a story which jurors find believable. 

Utilizing schemas that resonate with a jury also encourages rapport.  Utilization has its roots in psychotherapy.   It is a strategy that has long been used in psychotherapy and hypnosis to establish rapport and encourage cooperation.  A hallmark of utilization is the acceptance of whatever behavior is presented.

Utilization not only accepts whatever a person initially presents, but also considers it an important clue to what the person values highly.  So, for example, if a juror during voir dire chooses to discuss a particular relationship, lawyers should consider that information as a means of communicating to the lawyer to acknowledge the importance of the relationship.  For instance, in a case one of the authors tried, during voir dire, one juror stated that, "he had three children living."  This juror did not have to add the word, "living."  The trial lawyer must accept the communication to mean the loss of his child was important.  The juror obviously highly valued his family. The communication was a gift.  This communication was later utilized in telling the story.  Thus, the trial lawyer showed that he is listening and understands the importance of what the juror is communicating.  A dialogue thus begins.

Professionals are just as likely to fall prey to their schemas as that of lay people.  A famous experiment conducted by Stanford psychologist, David L. Rosenhahn, nicely demonstrates this point. In the study, eight researchers presented to a psychiatric hospital.  These eight researchers consisted of one psychology graduate student, three psychologists, a pediatrician, a psychiatrist, a housewife and a painter.  The identities of the pseudo-patients were unknown to the staff.  Upon arriving at the hospital, they complained of hearing voices.  The voices said, "empty", "thud" and "hollow."  The patients altered their name and vocation, but the rest of their lives remained the same.  None of the patients had ever been diagnosed with any psychological problem.  Upon admission, the patients ceased having symptoms.  Each was told that they would have to convince the staff they were sane and appropriate for discharge. All the patients, except one, were admitted with the diagnosis of schizophrenia and each was discharged with the diagnosis of schizophrenia in remission.  The schemas the hospital staff used in diagnosing psychiatric patients biased their perception of the pseudo-patients.  Interestingly, it was common for the patients to detect the sanity of the pseudo patients.  In contrast, the schemas of the psychiatric staff biased their perception of the pseudo-patients.  For instance, when patients took notes, it was referred to as engaging in the compulsive writing behavior that is associated with the disease of schizophrenia. 

The trial lawyer also falls prey to schemas.  For instance, the trial lawyer confronted with a prospective juror who identifies himself as a 60-year-old CPA is likely struck because of the lawyer schema that CPA's do not make good jurors.  Such a schema is deeply ingrained and hard to overcome.  Research has shown, however, that demographics are weak predictors of verdict preferences.   The trial lawyer is better served using schemas as red flags that call for further exploration of the juror's attitude about the specific issues raised in the case.  This has proven much more predictive of verdict preference.  A nice thinking experiment for the trial lawyer is to try to predict the verdict preference of jurors simply based upon demographics at the outset of the focus group.  At the end of the focus group, compare the demographics with specific verdict preferences.  The trial lawyer may be surprised. We should work hard to question our own schemas in selecting a jury and deciding which evidence is important and not simply accept them at face value.

The important point to remember about the confirmation bias is that we should never underestimate the extent to which a juror's prior experience influences his perception of the evidence.  We should also make sure that we identify the schemas that persuasively fit the case.  Then we should tell the story, emphasizing those schemas. In the final analysis, a core belief will prevail over evidence that challenges that belief.

The Belief Perseverance Bias

The belief perseverance bias refers to the tendency that once jurors adopt a trial story, they cling to the story even in the face of conflicting or discrediting evidence.  We have seen in our focus groups jurors maintaining their trial story even when we instruct them that there is no evidence to support their position

We also have seen repeatedly demonstrated in our focus groups that early-presented information has an immense influence on final judgment.  For instance, if we introduce important evidence of the defendant's egregious conduct after jurors adopt a trial story, it seems to have much less impact than if we introduce it early.  In contrast, if we present negative evidence after the trial story is adopted, it, too, seems less influential.  Thus, jurors adopt a trial story early and, once adopted, it is very resistant to change.

What we are finding, and are constantly surprised about, is that jurors do not continually update the trial story as new evidence is introduced.  Instead, new evidence consistent with the trial story tends to strengthen it. Evidence inconsistent with it is more likely to be critically scrutinized. Thus, we know that jurors construct a story that confirms their prior beliefs, the confirmation bias, and that that story perseveres even in the wake of inconsistent evidence, the belief perseverance bias. 

Thus, presenting our strong evidence early is imperative.  Recently and frequently presented information remains vivid and is more apt to be used for interpreting subsequent evidence.  It is well established that priming his experience can influence a person’s judgment.  The eminent social psychologist, Solomon Ash, demonstrated this point in an experiment conducted in 1946.   In the study, subjects received the following statements and were then asked to rate the person.

a)    Steve is intelligent, industrious, impulsive, critical, stubborn and envious; 
b)      Steve is envious, stubborn, critical, impulsive, industrious and intelligent.

These two statements contain exactly the same words simply in reverse order.  What Ash found was that Steve was rated more positively when he was described with positive traits first. These findings have been documented several times by other researchers.   These findings are great importance for trial lawyers. 

Combining the confirmation bias and the belief perseverance bias shows jurors adopt a trial story early which confirms their beliefs and that that story endures even after conflicting evidence is introduced What we have discovered, and others have convincingly shown, is that even when there is evidence that clearly undermines or discredits the trial story, jurors still tenaciously cling to it.  That is why it is essential that jurors adopt our trial story early.  The trial story must be seeded during voir dire, told during opening, re-told during the evidence and reinforced during closing. The order that evidence is presented can have a powerful influence over decision-making.

 

The Availability Bias

            Our use of the availability bias in trial work was the subject of a recent article in Lawyers Weekly.     What it refers to is that the amount of information on a particular issue available for decision making and the can have a powerful biasing effect on juror judgment.  In short, if trial lawyers want jurors to focus their attention on the defendant’s conduct, then the trial should be focused on the defendant’s conduct.  The object of judgment can be more critical than the judgment of the object. 

            The availability of information can influence perception.  People often mistakenly equate the availability of information with frequency, probability and casualty.  We propose that whatever most occupies juror attention during trial most will influence what jurors focus on during deliberation and disproportionately use in rendering a verdict.  A simple rule of thumb is that if the trial is focused on the defendant's conduct, jurors will focus on the defendant's conduct in deciding the case.  In contrast, if the trial focuses upon causation, jurors likely will focus on causation.  Likewise, if jurors focus on the plaintiff’s conduct during trial, they will focus on the plaintiff during deliberation. That does not mean we can ignore the plaintiff’s conduct if it is in issue or that we should not inoculate against defenses. On the contrary, it just means the focus of the case, and the jurors attention, should be the defendants conduct.

Everyone is subject to the availability bias.  For example, people often assume that murder is more common than suicide even though it occurs almost 50 percent less.  The reason we make this assumption is that it is more widely reported and thus available in memory.  When the public is bombarded with information about frivolous lawsuits, they often wrongly assume that such cases are common.  Similarly, the recent study by the National Academy of Science showed that as many as 98,000 people die each year from medical negligence in hospitals.    That is the equivalent of one jumbo jet crashing every day.  That makes medical negligence the fourth leading cause of death in the United States.  Nonetheless, if a jumbo jet crashes it is front-page news for everyone to see.  If somebody dies from medical negligence, it often receives no press coverage.  Thus, because instances of medical negligence are not readily “available” in our memory, jurors often wrongly assume it is uncommon. 

The following experiment is a good demonstration of the availability bias.   Subjects were told to read the following story:

Mr. Jones was 47-years-old, a father of three and a successful banking executive.  His wife has been ill at home for several months.  On the day of the incident, Mr. Jones left his office at the regular time.  He sometimes left early to take care of home chores at his wife's request, but this was not necessary that day.  Mr. Jones did not drive home by his regular route.  That day was exceptionally clear and Mr. Jones told his friends in the office that he would dive along the shore to enjoy the view.  The accident occurred at a major intersection.  The light turned amber as Mr. Jones approached.  The witness noticed that he braked hard to stop at the crossing although he easily could have gone through.  His family recognized this as a common occurrence when Mr. Jones was driving.  As he began to cross after the light changed, a light truck charged through the intersection at top speed and landed on Mr. Jones' car from the left.  Mr. Jones was killed instantly. 

It was later ascertained that the truck was driven by a teenage boy who was under the influence of drugs.

As commonly happens in such situations, the Jones family and friends often thought and often said, "If only . . . during the days that followed the accident . . ."

The subjects were asked, "How did they continue this thought?  Please write one or more likely completions."  Only 21% of the response eliminated the drug-crazed driver from the scene.  Instead, the subjects focused more upon Mr. Jones' conduct.  In fact, a majority of the respondents completed the sentence, "If only Mr. Jones had taken another route."

There are several important lessons from this study.  First, changing the focus of attention can change juror perception of the trial story.  Second, there are many extraneous facts to this story that were completely irrelevant for the jurors' decision.  For instance, in the second paragraph, attention is focused upon the fact that Mr. Jones "sometimes left early to take care of home chores at his wife's request, but this was not necessary that day."  When lawyers introduce information, jurors assume it is relevant to their decision-making.  If we assume that communication comes with a guaranty of relevance, then we must be vigil in communicating only that information which is necessary to the decision at hand. 

We can combine the confirmation, belief perseverance and availability biases in analyzing the above-referenced story.  To begin with, if we were to focus group this case, we would want to discover what schemas jurors have about teenagers who and use drugs.  Undoubtedly, one subject would be the boy's relationship to his parents. Did they know or could they have known about his unlawful behavior?  Moreover, jurors will likely want to know how much and what kind of drugs the boy took.  Many jurors may not have any prior experience with unlawful drugs and metaphors describing drugs may be an important area to explore with the focus group.  Further, we may want to explore what were the factors leading to the driver being in that intersection on that day high on drugs. It likely involved many conscious decisions of over long period.   Then we can tell the story of the driver’s conduct in a manner that confirms beliefs and focuses on his conduct.  Then the story will be about the defendant.  Once we know what evidence jurors feel is important, then we can introduce that evidence early and repeat it often so that we can use the confirmation, belief perseverance and availability bias to our advantage. 

CONCLUSION 

 As Oliver Wendell Holmes, Jr., said, "The life of the law has not been logic; it has been experience."   He is right.  It is the jurors’ experience that we must understand.  Tort propaganda has made it essential that we undertake this investigation.  The best way we know to do this is focus groups.  Only then can we begin to use that experience and tell our stories in a manner consistent with that juror experience.

As William Blackstone aptly put it:
A competent number of sensible and upright jury men chosen by law from among those of the middle rank, will be found the best investigators of truth; and the surest guardians of public justice . . . This therefore preserves in the hands of the people that share, which they ought to have the administration of public justice and prevents the encroachments of the more powerful and wealthy citizens.
Only if we understand the jurors' experience can we give them the tools to protect the public and eradicate the campaign of the powerful and wealthy to limit the rights of the jury.