Countering Outcome-Driven Bias

Although we conduct jury research for a wide variety of cases and topics, one mainstay of any trial is the tendency for jurors to view the case facts with the benefit of hindsight. However, just because this juror tendency is a factor in nearly every trial doesn’t mean it’s insurmountable.

In many cases – whether a delay in diagnosis, sexual assault or personal injury – being seated at a trial automatically puts jurors in a position of looking backward from the outcome to evaluate the two opposing stories.  This means they are often looking for indicators that the issue was foreseeable or avoidable – a position that makes it easy for jurors, driven by hindsight, to find examples of red flags or “missed opportunities” to prevent the outcome.

We have found that one way to counteract this tendency is to put jurors in defendants’ shoes with visuals, testimony and timelines.  If a timeline is presented (which we nearly always recommend regardless of the type of case), it can be helpful to place another board on top of it, and slide it to the right as you walk the jury through the events in question.  This helps to establish what the defendants (whether caregivers, supervisors or corporate leaders) knew and when, as opposed to having jurors stare at the totality of the timeline from the outset, where they could be tempted to start at the end and work their way back to point out “warning signs.”

Like turning off the basketball game in the third quarter of a blowout, only to read the next day that the underdog team made an incredible comeback, it’s helpful to remind trial jurors throughout trial that they have the unique advantage of knowing the end of the story before they’ve read the first chapter.  During exit interviews and mock trials, we have found that this kind of language and similar analogies resonate with defense-minded jurors, and serve as quick, common-sense rebuttals to jurors inclined to use hindsight as a guide. 

It’s all about perspective, and it will always benefit you to provide jurors with an alternative lens through which to view all case facts.  If you would like to discuss how we can help you present your perspective in the best light to jurors, please contact Senior Vice President Claire Luna at cluna@juryimpact.net.

When Acronyms Aren’t Enough

A favorite tactic of many lawyers we work with is to argue that a client’s conduct met the standards of a governing body, whether it’s a state licensing board for an amusement park ride or the American Association Obstetricians and Gynecologists (ACOG) for delivering a baby.  If it’s good enough for the people who make the rules, you figure, it’s got to be good enough for a jury – right?

However, we have learned you can’t count on jurors automatically believing such organizations are correct.  Jurors won’t necessarily accept that your client’s actions were good enough just because a board with a long acronym says so.

We’ve run into this phenomenon in a number of cases recently.  In one case, the Centers for Disease Control in Atlanta – the world’s foremost authority on infectious disease – clearly recommends that women with group B strep breastfeed their newborn babies.  The CDC says the proven benefits of breastfeeding in term of reduced risk of infection for the child outweigh the miniscule risk of transmitting GBS via breast milk.

But focus group jurors rejected this wholesale, as 18 of 24 jurors said caregivers should not have let this GBS-positive mother breastfeed her child.  One juror went so far as to claim the CDC didn’t know what it was talking about – because the baby contracted GBS, in hindsight the CDC “must” have been wrong.

In a fiduciary duty case we consulted on, jurors were unimpressed that the defendant CFO met all applicable industry accounting standards, and they demanded he should have “done more” to protect his employees’ interest.

These are just two of a number of cases we have seen that point to juror skepticism of professional authorities, especially those affiliated with the government.  We have found that we not only have to educate jurors about the applicable standards, but also educate them about why the standards are in place, including the process of creating the standards, and why they are correct. 

In the accounting case, we showed that the fiduciary’s decisions caused employees to profit – in addition to his actions passing muster with the professional accrediting body.

In an era when “everyone is an expert,” we have found you can no longer assume that jurors will automatically yield to the true experts.  We have found the first step should always be establishing the rationale and the process behind the official standards – and why your client’s actions were right.

If you want our take on how to make the best use of accrediting body or professional society guidelines, contact Senior Vice President Claire Luna at cluna@juryimpact.net.

Adapting Your Story for Today’s Information-Hungry Jurors

If you’ve ever fast-forwarded through commercials with your DVR or TiVo, recently been in a household without a landline telephone (unheard of a decade ago), thrown a brand-new phone book in the recycle bin because you can look up plumbers online, or sent a Facebook message from your iPhone while watching a movie, then you’re aware of how technology and social media have forever changed the way we communicate and receive, analyze and share information.

Such unprecedented access to information has also resulted in the potential for overload, causing people to find new ways to simplify, streamline and compartmentalize information – and even outright reject messages because they come from a particular source or are perceived to lack relevance.

As advertisers, marketers, pollsters and news organizations adapt to these changes and find new ways to connect with their ever-distracted audiences, it is important for trial teams to remember these changes also affect the way they communicate and connect with juries.

When making observations about the need to understand and adapt to the changes caused by technological innovations, the most common feedback is that this only applies to “young” and “tech-savvy” jurors, which comprise a small portion of most jury pools.  However, many are surprised to learn that right now one in four people over 50 years old owns a smartphone, and that number is growing rapidly.

In addition, according to Pew Research, between April 2009 and May 2010 social-network use among those 50 and older nearly doubled – from 22% to 42% (some estimate the use of Facebook among those 55 and older at 16 million and growing).  The fact is your entire audience is becoming more familiar with technology and social media, and you shouldn’t assume communicating with jurors in a courtroom is the same as 30, 10, or even five years ago.

According to our recent surveys, jurors are more impatient, have shorter attention spans and are growing more accustomed to using technology to multi-task.  If you’ve ever seen a cable-news report supplemented with multiple news tickers scrolling across the bottom of the screen at different speeds, then you understand how information overload is making it more challenging to help jurors focus on a handful of important pieces of information among an ocean of distractions.

In a world where Twitter encourages people to communicate their thoughts, feelings and opinions in just 140 characters, at trial it makes sense to tell your story in a simple, approachable and bite-sized way.  As more information and testimony are introduced, jurors will have a basic, go-to thematic umbrella under which all new information can fit.

It’s also important to understand how your audience uses technology, and design your presentation around that premise.  There used to be a fear among some trial teams that using the most up-to-date technology would make them look like they had an unfair financial advantage, so they stuck to overhead projectors to seem more “down home,” and used old tech to avoid appearing “extravagant.”  However, our exit interviews have consistently shown that in today’s world, jurors expect a high level of technology in courtroom presentations and actually appreciate a multi-media approach because it keeps things interesting and engaging.

We recommend incorporating elements of social media design into your PowerPoint slides, which will provide a familiar “look,” consistent with how jurors typically get their information.

In today’s world it is also important to utilize language familiar to your unique audience and present it in a way consistent with how jurors receive and analyze information in their daily lives.  This is not to say that your story should be punctuated with “OMG” and “LOL,” but it is vital to first understand how jurors view your case, the language and terms they use to break it down, what information – out of all that is being thrown at them – is the most effective and who are the most effective messengers, before stepping into the courtroom.

Consider Your Audience Before Dishing Dirt

Much of the time, we shy away from tabloid tactics and instead recommend a more straightforward approach to discussing the plaintiff’s background.  As juicy as scandalous Facebook photos, drug use or an extramarital affair may seem, sometimes the risk of alienating jurors with what they view as “irrelevant” information is too great.  Then again, there are times plaintiffs’ personal history can justifiably be used to the defense’s advantage, such as when their personal choices directly led to the negative outcome.

So how do you know when to bring up the past and when to leave the skeletons in the closet?  During a recent nationwide survey of more than 1,200 jury-eligible Americans, we attempted to quantify some of the factors that play into this decision.

Jurors were generally split regarding when and if a plaintiff’s personal history is fair game.  Asked if a plaintiff’s history of drug use or criminal activity is relevant and something the defense should bring up, 44 percent of respondents said the information is relevant and 31 percent said it is not (25 percent had no opinion). 

However, there was a striking racial difference in response to this question.  Nearly half of African Americans – 49 percent – said this information is not relevant, compared to only 28 percent of Caucasians and 33 percent of Hispanics.  Conversely, 46 percent of Caucasians and 43 percent of Hispanics said a plaintiff’s drug and criminal history is relevant, compared to only 34 percent of African Americans.

Is a Plaintiff’s History of Drug Use or Criminal Activity Relevant and Something the Defense Should Bring Up?

Another notable trend affecting how potential jurors viewed this issue was the type of area in which they live.  Respondents living in urban areas were most likely to say this information is not relevant (34 percent), whereas suburbanites were most likely to say it’s fair game (47 percent).

Is a Plaintiff’s History of Drug Use or Criminal Activity Relevant and Something the Defense Should Bring Up?

 The same race- and geography-based trends held true when respondents were asked how it would affect their opinion of a case if they learned the plaintiff had a drug or criminal history.  African-Americans and urban dwellers were most likely to say it would not affect how they viewed the lawsuit, and Caucasians, Hispanics and suburbanites were most likely to say it would make them more likely to find for the defense.

The key here, as always, is to know your audience.  

As the data show, how and when to delve into a plaintiff’s history is a complicated decision based on a number of demographic factors, and before trial it is crucial to understand how differing variables can mean the difference between helping the defense tell its story, and backfiring to the point that jurors shut out the story completely. 

If you’d like our take on your particular case, please contact Senior Vice President Claire Luna at cluna@juryimpact.net.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.