Category Archives: Uncategorized

BIAS & PROSPECTIVE JURORS

I have long been a fan of the website The Jury Expert:  http://www.thejuryexpert.com/  One of the research papers it has published is: “The Ubiquitous Practice of ‘Prehabilitation’ Leads Prospective Jurors to Conceal Their Biases.” authored by Mykol Hamilton, Emily Lindon, Madeline Pitt, and Emily Robbins from Centre College. This article explores juror bias and focuses on the effect of efforts to emphasize the significance of  lack of bias by the judge and attorneys. It primarily examines the effectiveness of the emphasis on being a fair juror as it impacts the jurors admitting they have a bias.

As to bias generally in jurors, it has been clearly demonstrated that where a strong bias exists, human efforts to not let it influence us are utterly impossible. Yet, many trial judges and appellate courts appear believe that it can be done. Hence,their unwavering confidence that they can rely upon a jurors affirmative response to their question: “Can you set that opinion aside if I instruct you on the law and consider the facts objectively?” Lawyers also would like to believe that they can “re-educate” the prospective juror to see the error of their bias and  then can rely upon the jurors assurance they can now be fair. All of these beliefs are simply invalid.

According to the law the sole legal purpose of voir dire is to expose bias in prospective jurors which would prevent them from being a fair and impartial juror. The article cites research which showed that instructing jurors they must set aside any knowledge, experiences, attitudes, or beliefs that might bias them is asking them to do the impossible. The article notes: “humans are not robots. We are notoriously bad at preventing our biases from influencing us. Furthermore, we strongly, but erroneously believe that we can control our biases and are likely to tell judges and attorneys that we can be fair and open-minded even if we cannot.” Some of the other conclusions of the article are:

  1. Most people are totally unaware of how much their attitudes affect their behavior and have a bias line site
  2. People are unsuccessful in setting aside bias even if they are aware of the bias. The bias operates unconsciously to influence us.
  3. Even if the prospective juror is aware of their bias unless they confess it there is no basis for a challenge for cause. Humans don’t want to admit they are imperfect and research shows that attorneys and judges are not good lie detectors in being able to tell those who claim they are impartial when they are not.
  4. There is a factor of community pressure from the other jurors and the pre jury lecture on the need for fair  jurors. It puts pressure upon the prospective jurors to give the answer that is expected from them about existing biases and to deny their existence.
  5. Pressures to give the expected answers about bias exist when the prospective juror is seated. They see the judge on the bench, the court reporter taking everything down, a room full of lawyers all focused upon the jurors in the box. This puts pressure upon the juror to give the “right” answer

The authors of the article made a content analysis of some 600 voir dire interviews in 11 high profile cases in different states. They studied transcripts. recordings and videos when available of the jury selection process. They looked for the discovery of bias. They reviewed the instructions given by judges to prospective jurors and comments by the attorneys about fairness and  bias expected.  Their conclusion was that efforts by the judges and and attorneys  simply leads prospective jurors to temporarily suppress their bias into falsely claiming they had no bias. They found that prospective jurors rarely admitted to existing bias. Their conclusion was that the lectures and instructions  to the jurors about the  need for unbiased jurors actually resulted in the jurors being less likely to acknowledge known bias.

The authors suggest a change in how the judges instruct jurors about this matter  emphasing the importance of honest disclosure.  For example, “While you have been lectured to death on the importance of being objective, probably to the point where you fear admitting any negative feelings, let me assure you that the goal is to understand your true feelings and not to bully you into giving an answer you think we want to hear.” They suggest  indirect inquiries to explore the bias issue. For example, in a high-profile case:  “In talking to friends and family about the case, have you gotten the feeling that they have formed some opinions about the case?”

In a comment to the article Charli Morris, a juror consultant, noted that the laws’ idea of an ideal juror was one who had no knowledge of the facts and no interest, financial or otherwise, and the outcome of the case. What the parties are entitled to is a fair trial. They deserve fairness from the court, from counsel, and from the jury. The goal is to eliminate arbitrariness or randomness  in a trial. To establish the bias for a challenge for cause, the author suggests this approach:

  1. Establish the extent of the jurors potential for partiality. This is done by exploring sufficiently the dimensions of the jurors bias or inability to be fair.
  2. Quantify it. It’s important to establish the extent of the bias. Words like “definitely” for “very” or “strongly” are words which jurors are reluctant to adopt because it makes them appear to extreme or close minded. Instead a 10 point scale is recommended to quantify the degree of the bias
  3. Get it all down. The author recommends a methodical slow process so that the essential words are recorded and aware by the judge.
  4. Add it all up. One then should deliver a narrative of the school of the inability of the juror to be fair and to make a good record on appeal.

I think this suggestion is technically correct and I would add that my personal view is that my goal was not to disqualify jurors for cause. I accepted that every juror would  have strong bias agreement about tort reform attacks on cases just like this. I accepted  the fact that they would all have a bias about trust me and my client since  we were wanted a money verdict from them. I assumed most would have strong beliefs  and values that might run counter to the concept of this kind of case. I assumed they would search their long term memory for personal experiences which they would  try to apply to this case to assist them in arriving at a decision. I knew that it would  be impossible to eliminate everyone with a genuine bias. I believed it conveyed  the wrong message to be cross examining them for  reasons to challenge them. I assumed that some would resent my challenge to a  fellow prospective juror and  if I failed in the challenge I would have to use a limited personal right of excusing them. “Don’t  strike the emperor unless you kill him.” is a valid proverb.

Consequently, my viewpoint was it was better to first identify with their beliefs  and values. Join their tribe as the first  step. For example: “I’m not going to ask you how you feel about cases  like this because I think we all  agree – How  many of you think their  are  too many frivilous lawsuits, brought by greedy lawyers asking for money damages? raise  your hand” Before asking to raise their hand, I held my hand up first.

The second step is to distinquish your case. “Is  it possible, do you think  that their  might be valid legitmate lawsuits filed by deserving people  and represented by honest  lawyers?” Each of these were followed by discussion. If their were the  committed biased juror on the panel I was unable to gently talk out of serving my steps for setting  up disqualification was:

  1. Fully identify the nature of the bias without arguing or attempting to educate. Full, nonjudgmental acceptance of the bias.
  2. Establish it was a reasoned  out conclusion well grounded  in  their  mind. “I suspect you’ve  thought this out pretty thoroughly? This isn’t something that just came to you this morning but is something you have felt for  some time?
  3. Establish that the juror isn’t going to change their mind. “I doubt I could talk  you out of this even  if  we had the time to discuss it? You feel strongly  enough about this and  are honest  enough about your feelings  I expect that even if the judge were to ask you if you could set it aside and follow the  law you would feel compelled to honestly say you couldn’t?” (Note the importance of innoculating the  juror from the judge who will immediately try to talk the juror into saying in spite of the bias they would  follow the law).
  4. Asking the  juror to voluntarily step aside before making any challenge. “You know  there are other cases going  on here, I gather you would feel more comfortable serving on a case other  than this  one in light of your honest feelings we’ve discussed. Would you feel better asking the  judge to be excused from this  case?”

Bias is bias and  it rests in the unconscious more than the conscious. That’s why the obvious racist can honestly say they have no bias against minorities because at  a conscious level that’s really what they believe. Getting jurors to identify bias under court room conditions is even more difficult. This is a great challenge for judges and for  us.

DOES THE AMOUNT YOU ASK FOR AS A VERDICT EFFECT THE RESULT?

Nationallly known plaintiff’s trial lawyer Rick Friedman recently called attention to the article from the University of Denver Sturm College law by John Campbell and others entitled: “Countering the plaintiffs anchor: Jury simulations to evaluate damages arguments.” The article deals with an important research project about  the principle of anchoring which has direct application to the plaintiff’s damage arguments. I think plaintiff lawyers should read this article.

Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring. What is anchoring? Anchors are stimuli that produce  a state of mind – thoughts and emotions. For example, the smell of bread may take you back to a memory about your childhood. A tune you hear on the radio may remind you of an event or a person. These are anchors that operate automatically and often without your being aware of the triggers. Neuro linguistic programming deals extensively with the concept of anchoring and is a good resource for learning techniques of anchoring.

Anchors can be visual, auditory and kenesthetic. How do you create a personal anchor? The simple formula is:  (A) decide on the state you want to anchor. What feeling or action are you trying to anchor? (B) choose an anchor, or anchors, that you will use to trigger the state. For example, make a fist, or a finger and thumb pressed together or pull on your ear lobe. This will be the trigger or stimulus that will create the state you wish. (C) recall a memory or vividly imagine a situation where you experienced the state you want to anchor. Make the image sharp and bright. Makes sounds clear. Use a word that enhances the feeling for example, “yes!.” And (D) activate the anchor by the trigger you selected. Repeat the process to make it permanent.

Anchors are commonly used in marketing. One of the common applications deals with presenting prices. A high number is used to anchor an impression about a lower price for an article. The real estate agent shows the most expensive house first before showing the less expensive ones. The larger number operates as an anchor affecting the impression of the price of other houses. In 1974 psychologist did a study about the anchoring effect. Participants watched a roulette wheel that, unknowing to them, was rigged to stop at either 10 or 65.  Participants were asked to estimate the number of countries in Africa belonging to the United Nations. For the half of the participants where the roulette wheel stopped on 10, they gave the median estimate of 25 countries. For the other half, where the wheel stopped on 65, their median estimate was 45 countries. The random anchors dramatically affected the judgment of the participants as to their estimates even though the number on the roulette wheel  had nothing at all to do with countries in Africa belonging to the U.N. The number became an anchor that  primed the judgment for the estimate.

In the article from the Sturm College of Law, the researchers studied this concept of anchoring. The issue they studied was the effect of the amount of money the plaintiff asked for on the ultimate verdict. In addition they studied the impact of a defendant who either ignored the number plaintiff suggested or suggested an alternative number.

This important article answers the question of  whether  a plaintiff is better off  not  suggesting any number or should avoid asking for “too much” because it will anger the jury.  In summary, the study found that anchoring effects  were extremely powerful. The plaintiff was able to dramatically increase the potential recovery by simply demanding more money. In the study, damages increased an average of 430% by this tactic and also found it had a small affect on winning. Their conclusion was that the plaintiff should always  asking for a damage figure and should request extremely high damages  unless the concern is maximizing the chance of recovery.

As to the defendant, it is a mistake for the defense attorney to not provide the juries with an alternative to the plaintiff’s damage award generally. When the defendants suggested a lower number in this study the defendant won more cases (defendant prevail 81.7%) and when no alternative number was suggested it decreased by 19.4%. However suggesting an alternative lower figure by the defendant did not prove to have any statistical significant effect on damages. The study concluded that the defendants “lack an effective way to rebut the plaintiff’s outrageously high anchor.”

The article conclusion is significant for plaintiffs attorneys. Anchoring works. Although the plaintiff who shoots for the stars takes a credibility risk that reduces the chances of winning, it is outweighed by the higher damages award if plaintiff win according to this study.  Also, the three strategies available to defendants all failed to overcome the anchoring effect.

This study confirms the most common viewpoint that it is always a mistake for the plaintiff not to suggest a number to the jury and letting the jury  “figure it out for themselves.” More importantly, it reflects on the conventional fear that asking for too much money will cause the jurors to become angry and do the opposite. While there certainly is logic to that view, particularly in thin liability cases  or cases where the injuries are questionable or exaggerated, overal should ask for a large verdict.

Thanks  to Rick for calling  attention to this study as  I believe this is an important article which should be applied with a large measure of common sense when applied to a specific case. However, it confirms what other studies have shown which is that there is a “priming” principle or anchor which is brought into play by asking for a substantial amount from the jury. Let us reevaluate the amount we asked the jury for to ensure that it is consistent with the real injuries and the case with this principle in mind.

 

 

 

RANDOM THOUGHTS ABOUT REPRESENTING PLAINTIFFS

This is a mixing bowl of unconnected ideas about our work. It’s a summary of some recent E-mail exchanges I’ve had with  other plaintiff’s lawyers about different subjects  under discussion and my general reading.

How do We  Make  Decisions?

I’ve written a lot about this subject but in Tuesday’s edition of the this  week’s New York Times there was an article about how people  make medical decisions regarding their health care. It was based, in part on medical journal articles and interviews  with physicians. As I read it, there  was an obvious connection to jury decision making. The article observed that in an ideal world, people would base medical decisions on an unbiased evaluation of available evidence. But people are often irrational and many, perhaps most, are driven more by emotion than facts.

This is a very signifcant observation for trial lawyers  who have been taught to think people make  decisions in a logical and rational manner. The entire jury system is based upon  that idea, but there is  no question this is not how decisions are made. If  science has so very clearly established that decisions are made largely at a subconscious level and always involve a large component of emotion, why would trial lawyers insist on trying cases as if that weren’t the scientific fact? Why wouldn’t they adjust their presentation of the case to be consistent with how decsions are really made?

Dr Lisa Rosenbaum in the New England Journal of Medicine was quoted as saying  “we don’t process negative events, only positive ones. People interpret information according to their preconceived notions. Their sense of risk is often determined less by facts than by their feelings and emotions.”

Note the first  sentance in the paragraph above  about how our subconscious processes negative statements. Research has demonstrated that  our  subconscious  does  not register negative statements, only positive ones. Therefore, a political ad  which says “Don’t vote for John Smith” registers  in  our subconscious as “VOTE for John  Smith.”  I’ve written about the NLP idea of embedded commands that employ this fact:   http://plaintifftriallawyertips.com/vulnerability-is-power-brene-brown

Dr Lisa Rosenbaum MD  is quoted as saying: “People interpret information according to their preconceived notions. Their sense of risk is often determined less by facts than by their feelings and emotions.”  This is consistent with the most fundamental of all principles  about  the reality of  a trial as  expressed previously: A trial is a battle of impression and not logic.

I’ve written also about  the research that shows people make their  decisions at a subconscious level based  primarily on their value system and past significant experiences. The article deals with this when they quote Dan Kahan who heads Cultural Cognition Project at Yale University and who says people pick and choose evidence that reinforces their sense of who they are and they groups they belong to.

Once the subsconscious mind makes a decision  it begins to filter all of the information which  follows. It either rationalizies the evidence to fit the viewpoint adopted or simply  ignores it and  this is all  done without a consious awarness it is  going on.  That’s why jurors always have a rational opinion for their  decision, but have no way to accesss  what really happenss  in the subconscious. Talking to jurors  about why they decided can provide helpful information, but they can’t tell you what the real process  was because they don’t know.

How Much Should I Ask the Jury For?

That was the subject of a recent Email exchange and one that comes up in discussion with lawyers. While the lawyer was  in trial this was  the question that was asked.  My response was this:

The fact is  your case value depends primarily upon your mental attitude and the conviction you deeply feel about the fairness of the amount  you intend to argue. That attitude is created by your evaluation of the case as it has been presented to the jury and by your impression of  the jurors in the box. For example, Gerry Spence has argued $30 million dollars for the death of child, but other lawyers likely would have used a lower number because of their very different  internal confidence  level and personal evaluations.

I don’t think anyone other than you, as plaintiff’s attorney, can select the right number for you to argue with sincerity and with genuine passion. If  you don’t believe fully and completely in what you  are suggesting as a verdict in the case your chances of getting  it are reduced dramatically. That, in turn,  requires  you to have a deep emotional knowledge of exactly what the  injuries  have meant  to your  client. You need to climb  inside their skin and  really experience what this  has meant to  them before you can  translate it into a fair  appraisal as a verdict.

I think the argument should be framed not as you would approach economic damage calculations, but rather as setting a value on impairment of human life. That is, not by math but rather as  you would the value of a great painting.This Paul Cezanne painting  “The card players” sold for  $273 million dollars in 2011.

It’s not the value of the paint and canvas, which is easily  replaced, that accounts for the value, but rather that it is something totally unique and irreplaceable.

There is only one human like this client that ever existed in the entire of the world, just as there is one of you that is totally unique. There will never be another human like this one. We look at the value of the loss of something  uniquely precious to make  our evaluation. It can’t be done by taking the minimum wage and multiplying  it over  life expectancy. Like the painting there is a loss  of a valuable possession of good health that is unique to the child and the family.

The first Rule of Being a Great Plaintiff’s Attorney

I’ve written a lot about being an authentic person. I believe the first and most fundamental rule of advocacy greatness is to be real. If  you want  to be a great trial lawyer you first must learn to be a real person. My most recent post about this is: http://plaintifftriallawyertips.com/wp-admin/post.php?post=1457&action=edit What does being real mean? Well, it starts with stop hiding behind masks we have created to conceal who we think you really are. We see ourselves as a fraud, a small child hiding deep within who we pretend to be and that guarding totally cuts us off from genuine relationships. It is in our connecting  with the jury that we gain trust and credibility. We can’t have a genuine connection unless we are ourselves genuine people.

In a recent post (http://www.keenantrialblog.com/)  by my friend Don Keenan he makes this point and quotes lyrics from a Tim McGraw song “Overrated.” I think it is on target for illustrating this point:

We amputate the heart
Cause we can’t let ‘em see the broken part
Water down the wine and jump the shark
We build our castles tall
Just so we can have the higher walls
It don’t matter where you came from
Or where it is you get your name from
We’re going down if we don’t change some.
Let’s get real and be genuine people without false fronts and pretending to be someone else instead of ourselves, warts, scars and all.