How Good Lawyers Lose Good Cases
Anticipating and Overcoming Jury Bias
Paul J. Scoptur
Jurors don’t think like lawyers or view the world as lawyers do.
Many lawyers deal with people from across society’s spectrum on a daily basis. Doctors, bankers, construction workers, office workers, hospital employees and government employees may all interact with a lawyer in a single day. Many lawyers went to public school, and came from modest, rather than wealthy, backgrounds. As a result, it is common for lawyers to believe they understand and can relate to jurors from diverse backgrounds.
Predictably, lawyers (like most others) do not see themselves as others see them. As an example, the more experience a lawyer has, the more he/she will believe in his/her ability to communicate and persuade. While this perception of increased competence by more experienced lawyers is common, lay observers don’t see it[1]. Observations of lawyers in trial do not show any correlation between experience and ratings for rapport, enthusiasm, or articulateness.
Lawyers are grossly different than most jurors for a simple reason. Lawyers are different from jurors because their experiences, attitudes and view of how things work are different. Juror’s decisions in lawsuits are shaped by their life experiences and attitudes. Their decisions are based on their view of how the world works, and who is responsible for what in given situations.[2]
Lawyers’ assumptions about what is important and what makes sense is not necessarily congruent with the view of most jurors.
From: ATLA polling research September 2002
From: The Jury Project, Part I: Juror Attitudes and Biases, Douglas L. Keene, Ph.D., a statewide survey sponsored by the State Bar of Texas.
As a basic attitude, the majority of jury eligible people believe that most lawsuits are frivolous and that people are too eager to sue. Incredibly, they may also believe that 50% of injured patients sue or that fraudulent lawsuits are common. These attitudes and beliefs are contrary to most lawyers; beliefs, but they only suggest the depth of differences between lawyers, and the jurors who decide cases.[3]
Jurors believe lawyers will, as a matter of course, lie and misstate facts.
As officers of the court, most lawyers take the truth seriously and speak the truth. Unfortunately, most jurors believe lawyers will lie about evidence, exaggerate, and generally twist the truth to their client’s advantage whenever possible. In short, jurors believe that what a lawyer says in a courtroom cannot be trusted, anything said by an attorney is suspect.
From:Public Perceptions of Lawyers-Consumer Research Findings,April 2002, Section of Litigation, American Bar Association.
Lawyers’ communication often makes the jurors’ job more difficult.
Many lawyers are proud of their ability to talk and think on their feet. They pride themselves in being able to recall and recite dozens of facts in any case, and dozens of conclusions that they think are obvious based on the facts of the case. Unfortunately, these skills are at odds with the ability of jurors to absorb, retain, and understand the facts of a case.
Any case involves the presentation of hundreds of facts. In order for a lawyer’s argument to succeed in deliberations, jurors must know which facts are most important and remember them. However, 72 hours after oral presentation of evidence, jurors will remember only 10% of the evidence, and what 10% of the presentation are they remembering? Research has established that making a case simple, increases the chance of a plaintiff verdict. “High information load” increases the likelihood of a defense verdict.[4]
In addition to the “information load” created for jurors, lawyers often over rely on the spoken word to communicate. If a lawyer senses that jurors may not be following him/her, more words are added. The fallacy with “adding more words” or “let me say one more thing” is that not only do more words add to juror information load, but words themselves carry a small part of the meaning taken by jurors. The meaning of spoken communication can be divided between words, tone and vocal characteristics, and facial expression. Of these three categories, only 7% of meaning is derived from the words themselves. 38% of the meaning is taken from tone and vocal characteristics, and the remaining 65% comes from facial expression and physical behavior.[5] Relying exclusively on the spoken word is short sighted. Research has shown however that if the words are paired with a relevant demonstrative exhibit, juror recall over 72 hours increases from 10% to 60%.
Third, lawyers commonly increase the “information load” of jurors by proving and arguing multiple theories and/or proving the same fact over and over. The effect of “overproving” the case is two fold. First, it adds more facts, worsens the “information load”, and has an adverse affect on jury verdicts. Second adding more facts potentially weakens the persuasive impact of stronger evidence through a phenomenon referred to as “Sponsorship Theory”.[6]
Lawyers misjudge what jurors want to know, and what is important to them.
Lawyers often assume that if they prove a prima facia case, that they should win. In addition to proving a prima facia case, and out of an abundance of caution, lawyers may prove and argue multiple theories or prove and re-prove critical facts. While this approach reduces the chance of a plaintiff verdict, it also moves the focus away from what jurors may want to know.[7] When there is a gap in the evidence that jurors think is important, they will make up the facts needed to make sense of what they think the case is about.[8] Jurors’ decisions are not based on the lawyer’s view of the case or lawyer’s theories but their own.[9] The adoption of any theory by a jury results from how the jurors’ prior life experiences fit in with alternative interpretations of facts presented in the trial.
Lawyers don’t address existing, common biases that may control evaluation of evidence and deliberations.
Research has established that regardless of venue, there are 5 prevailing attitudes of jurors that are present in every case and that can prevent a fair and just outcome. They are personal responsibility, stuff happens, anti-plaintiff bias/suspicion, anti-lawsuit bias, and defensive attribution[10].
Personal Responsibility
In national surveys, personal responsibility is ranked “very important” by 95% of those polled. In a recent survey by the Manhattan Institute, the Number One value in order of importance was “Personal Responsibility”. This level of importance given personal responsibility is consistent across gender, race, class, and both major political parties.[11] It has become a part of political rhetoric adopted and used by both parties. Tort reformers and propagandists have used this attitude to frame injury victims as people who did not act responsibly, and are suing rather than taking responsibility for their life and moving on. As a result Personal Responsibility is an issue in every case. Jurors want the plaintiff to accept responsibility for what’s occurred in his/her life, and will seize on any conduct that they think is an example of not accepting personal responsibility.
Stuff Happens
There are jurors who will not be convinced that a party is liable. When confronted with all the facts and reasons to rule, their reaction is that they “need more information” or “stuff happens”. “Stuff happens” often serves as a justification for the conduct of the defendant, for example:
1.“Some people are going to hurt themselves no matter how safely the product is
made.”
2.“Why blame the manufacturer when it makes thousands of these things and so few cause injuries?”
3.“When you have that kind of surgery, that is just part of it. The doctor can only do so much.”
This bias equates intent to harm with negligence, making “intent” a requirement for recovery. If you cannot prove “intent”, you will not get this juror’s support.
Anti-Plaintiff Bias/Suspicion
Jurors are more likely to believe the defendant/insurance company is the victim rather than an injured plaintiff. In a survey of actual jurors, 4 out of 5 (80%) thought people were too quick to sue and 2/3rds of the jurors thought that most people who sue do not have legitimate claims.[12] Jurors are suspicious of plaintiffs, their attorneys and the system. This bias is extremely dangerous because facts and proof may make no difference when the juror believes the claim is not legitimate.
Anti-lawsuit bias
Another common bias in jurors is the whole question of lawsuits themselves. Most jurors will willingly agree that many or most lawsuits are frivolous. Television and the media have helped fuel this opinion and the opinion that most juries are “out of control”. The only responsible action for a prospective juror with this attitude is to assume that the lawsuit is frivolous, and make sure his/her jury does not get “out of control”. The attitude that lawyers will lie and say whatever is necessary to win feeds this bias and makes it stronger.
From: The Jury Project, Part I: Juror Attitudes and Biases, Douglas L. Keene, Ph.D., a statewide survey sponsored by the State Bar of Texas.
Defensive Attribution-Jurors create reasons this injury/loss
would never happen to them.
In a personal injury case, jurors are confronted by circumstances in which someone was injured. The last thing in the world that any juror wants to think is that the same injury or tragedy could happen to them. When faced with the situation the plaintiff was in, their first question is not “What did the defendant do wrong?, but “What would I have done differently if I were the plaintiff?” In a failure to diagnose breast cancer case where the deceased plaintiff had been give a “clean bill of health”, women jurors may insist that they would have gotten a second opinion. In cases where small children are injured, jurors may create multiple things that they would have done as a parent to keep this from happening to their child.
Recommendations
The goal of every trial lawyer should be to anticipate juror biases and attitudes and have a plan to deal with such biases and attitudes in the presentation of evidence and within the context of the case. Case presentations should also take into consideration jurors’ ability to absorb, retain, and understand critical case facts.
This paper, and the companion presentation, only scratch the surface of the issues involved. Understanding juror biases and attitudes, and how they impact juror decision-making in each case, is a must for litigators in the 21st Century. Here is one of my favorite quotes: “If you always do what you’ve always done, you’ll only get what you’ve already got.”
The dynamics of trial practice have radically changed over the last 10 years. To be a successful trial lawyer, we need to change the way we present our case to the jury. Jurors have changed, and so must we.
Paul J. Scoptur
Aiken & Scoptur S.C.
2600 N. Mayfair Rd. #1030
Milwaukee WI 53226
414-225-0260
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[1] Hans et al, Juror Views of Civil Lawyers: Implications for Courtroom Communication, 1993.
[2]Legal Blame: How Jurors Think and Talk about Accidents, Feigenson, Neal, American
Psychological Association: Washington, 2000
[3] For an eye-opening view of general attitudes that may be at odds with most lawyers, see The Day America Told the Truth, James Patterson and Peter Kim, Prentice Hall-New York, 1991.
[4]The Effects of Complexity on Jurors’ Verdicts and Construction of Evidence, Horowitz et al, Journal of Applied Psychology, 2001, Vol. 86, No. 4, 641-652.
[5] Mehrabian, Albert Nonverbal Communication, New York: Aldine, 1972
[6]Sponsorship Theory, Michie Publishing:Charlottesville, 1998
[7] see Horowitz et al “The effects of Complexity on Juror Verdicts and Construction of Evidence”
[8] Hastie et al, “A cognitive theory of juror decision making: the story model”, Cardozo Law Review, 1991, Vol. 13 p. 536.
[9] Pennington and Hastie, The Story Model, Cardozo Law Review, Vol 13:519, p. 525
[10] This research has been conducted nationwide by ATLA initially, and then by ATLA members Greg Cusimano and David Wenner. Greg and David have conducted hundreds of focus groups nationwide confirming the persistence and nature of these biases in juries and have been responsible for naming the biases and finding supporting studies in the scientific literature.
[11] Andrew Cherlin, I’m OK, You’re Selfish, N.Y. Times, 10/17/99, §6 at 44.
[12] Valerie P. Hans, The Contested Role of the Civil Jury in Business Litigation, 79 Judicature 242, 244 (1996).