A Short Guide to Interviewing a Jury Consultant
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
Interviewing jury consultants is probably not high on the list of enjoyable tasks for most lawyers. Methodologies sound very similar, experience is hard to judge, and the more consultants that are interviewed, the harder it is to differentiate between them. What follows is a guide for interviewing jury consultants that will make the task easier and more effective.
Avoiding the Wrath of Disgruntled Jurors
Maithilee K. Pathak, PhD, JD
770.205.9270
MPathak@RD-SS.com
Recently, I assisted in trial preparation in a business dispute in which my client was accused of fraud, misrepresentation, and breach of contract by a business partner. We conducted jury research and participated in jury selection. The trial lasted several weeks, and the case ultimately settled just before it went to jury deliberations. Once the case was settled, the attorneys talked to the jurors and discovered that some of them were frustrated with the length and complexity of the trial and resented having had to serve.
Breaking the Rule: Putting on the Defense Damages Expert First
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
The idea that a trial is like a play is certainly not a new one. Although each trial is different, they all have common rules of performance such as the order of proof, the manner of introducing evidence, and so on. However, some of the rules are self imposed either because they reflect the ways in which trying a case has always been done or because they make intuitive sense. I would like you to question one of these self-imposed rules. It is the rule that in presenting the defense case, the damages expert testifies last.
Context Makes the Victim
Ross P. Laguzza, PhD
540.772.1902
RLaguzza@RD-SS.com
When evaluating the power of a sympathetic plaintiff, it is important to consider the factual context. The extent and severity of the injury is often only a small part of the equation although this factor often receives the lion’s share of the attention from voir dire on.
Corporate Image is Everything … Or Is It?
Ross P. Laguzza, PhD
540.772.1902
RLaguzza@RD-SS.com
Even before the perilous days of post-Enron corporate bashing, defense lawyers and their clients spent considerable amounts of time developing strategies for softening a company’s image, personalizing a company, and/or acquainting jurors with the benevolent motivations of a corporation and its people. I will never forget one client that made it a condition of retention that the trial lawyers mention early and often the company’s annual gift of American flags to the Boy Scouts. The basic assumption underlying these efforts is quite simple: If the jury can be persuaded to humanize the corporation, it will be more receptive to its themes, evidence and witnesses, and hopefully less punitive. Sometimes clients engage in a fair amount of debate about who should represent the company at trial. There often is a great deal of emphasis placed on getting a person with the right “look,” the right position, and of course the patience and commitment needed to sit through a lengthy trial. Again, the idea is that a positive image will increase the chances of a favorable verdict. Reality—especially when it comes in the form of juror decision-making—can be quite complex, but often more predictable when understood. Indeed, real jurors find against companies they think highly of all the time while companies with less than desirable images prevail. How can this be?
Detecting Jurors Who Are Lying
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
Last year, I was assisting a trial lawyer with jury selection. After the voir dire, we caucused to discuss our strikes. This lawyer vehemently insisted that one of the jurors was lying and had to be struck. He knew in his gut that the juror had lied and there was no way he was going to keep her on the jury. She went, and we will never know whether or not she was telling the truth. Is it possible to tell if a juror is lying? Over the years, a great deal of psychological research has been conducted to see if there are behaviors that correlate with lying. To very briefly summarize this research, the following behaviors have been found to be associated with deception.
Gorilla in the Courtroom: When Jurors Go Blind
Ross P. Laguzza, PhD
540.772.1902
RLaguzza@RD-SS.com
Imagine a typical courtroom with a judge, jury, court reporter, bailiff, assorted spectators and, oh yes, a gorilla. Would anyone notice the primate? More significantly, would your jurors notice? Recent research suggests that under the right conditions they just might not.
Hindsight Bias
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
Hindsight bias is the tendency of people, with the benefit of hindsight, to falsely believe that they would have predicted the outcome of an event. More colloquially, it could be called the “You should have known all along” phenomenon. In the context of litigation, it can lead juries to find defendants which took reasonable care negligent or even reckless. The mere fact that an injury occurred is enough to conclude that the defendant should have known that an injury would occur.
If You Ever Use PowerPoint, Read This Before You Do Again
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
In an article entitled, “All Rise (and Power On),” in the New York Times (May 20, 2003), the author, Sherri Day, talked about the burgeoning use of technology in the courtroom and the ways that courtrooms are adapting to accommodate that technology. In one passage, she wrote, “These days, opening statements and closing arguments are often augmented with PowerPoint presentations ….” The article goes on to laud the use of this and other technologies as aid to jurors and as something that speeds the trial process.
Jury Selection: “Gut” Versus the Juror Profile
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
In Blink: The Power of Thinking without Thinking, Malcolm Gladwell writes about how many of the choices that we make are made in an instant and often are better than the choices that we make after a great deal of reflection and study. While he writes that some instantaneous decisions can be disastrous (such as the shooting of Amadou Diallo in 1999 by several policemen), the main interest in his book comes from those times that people make very quick decisions that turn out to be very good decisions. One example he uses is about the decision of the Getty Museum to purchase a sixth century B.C. kouros (a sculpture). The decision was not made until a great deal of scientific study was done. However, a number of art historians and curators took one look at it and immediately thought that something was amiss. The kouros turned out to be a fake.
Jury Selection in Race Discrimination Cases
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
Michael P. Zweig, Esq.
Mark J. Goldberg, Esq.
Loeb & Loeb
212.407.4000
MZweig@Loeb.com
MGoldberg@Loeb.com
Last month, the U.S. Supreme Court heard oral argument in Miller-El v. Cockrell, in which the Court may be revisiting its landmark ruling in Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Court ruled that discriminatory peremptory challenges based on a juror’s race are prohibited by the Equal Protection Clause of the U.S. Constitution. Batson was a reaction to the jury selection practices spawned by the often-held presumption that a juror’s race is indicative of which side he or she will favor. This presumption is especially prevalent in race discrimination cases, where race is at issue in the litigation.
The Lawsuit from Hell
Ross P. Laguzza, PhD
540.772.1902
RLaguzza@RD-SS.com
Upon arriving in hell, a gentleman—we shall call him Mr. Marklin—discovers that his new environs are something less than tolerable and, indeed, a good bit unpleasant. Being a modern man of the 21st century, he quickly formulates a plan: “I’ll sue!” He has no trouble finding a plaintiff’s lawyer who files a lawsuit against God, the creator. The lawyer’s theory is simple, yet profound: God created an unreasonably dangerous and ultra-hazardous condition (temptation) and failed to adequately monitor and warn the plaintiff of the inherent risks of being a human male. God assigns the case to in-house counsel who sets to work on filing the typical responses and motions.
The Myth of the Primacy and Recency Effects at Trial
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
For many years, trial consultants and lawyers have talked about how a trial should be structured to take into account primacy and recency effects. In its simplest form (and it really isn’t much more complicated than its simplest form), primacy and recency theory predicts people will remember information best that occurs at the beginning and end of communications, and will be more likely to forget what is in the middle. This idea has been used to argue that openings and closings are the most important parts of the trial; that the beginning and end of a witness’s testimony will be best remembered; that lawyers should save important points for the start and the end of a trial day; and so on. While these ideas may make intuitive sense, the fact is that there is no real empirical evidence to support them (at least based on the concepts of the primacy and recency effects).
Stories, Not Speeches
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
Some of the most experienced trial lawyers I know try to model themselves on great speechmakers when appearing before a jury. By understanding the rhythm, rhetoric, structure and phrasing used by renowned speakers, they hope they will themselves make more compelling presentations.
What Behavioral Economics Can Teach Lawyers about Settlement Discussions
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
Frequently, defense attorneys involved in settlement discussions become frustrated when what they believe to be perfectly reasonable settlement offers are rejected by the plaintiff. They encounter this situation most often when dealing with novice plaintiff lawyers or plaintiffs who are individuals who have not previously been involved in civil litigation. Why does this happen? Is it because the plaintiff is irrational or stupid (as many defense lawyers posit in this situation) or is there another reason? We can answer this question by taking a look at something called the “endowment effect”—a major precept of behavioral economics.
When Science is on Your Side, But You Lose Anyway
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
In a lawsuit where the claim is that a product or substance caused a disease or injury, one would think that a sine qua non of the plaintiff’s case is strong evidence that the product or substance is more likely than not the cause of the particular injury the plaintiff claims to have. Yet, my observation of these cases over many years is that, while defense lawyers may firmly believe that such evidence is weak, lacking or bogus, the plaintiff is often still able to make substantial recoveries before juries.
Why the Way Damages are Presented to a Jury May Be All Wrong
David S. Davis, PhD
781.652.8607
DDavis@RD-SS.com
A well established principle of psychology suggests that the way in which lawyers have traditionally argued damages to juries in punitive damages cases may be all wrong. Traditionally, lawyers have first presented arguments in favor of compensatory damages and followed that with attempts to persuade the jury to award punitive damages (invariably, a greater amount than what the lawyer is asking for in compensatory damages). The psychological concept that suggests this may be the wrong approach is called the contrast principle. Very simply, it is the idea that when two different items are presented to us, we will tend to see the second item as more different than it actually is.
