September 29, 2009

Violate Juror Expectations…In a Good Way.

By: Dr. Kevin Boully

Sure, I’ve fired an assault rifle but I don’t know much about guns.

TJE_logo When I was asked to comment on Glenn Meyer’s description of weapons effects in criminal cases, I was initially a little intimidated.   Then I realized, it really doesn’t matter if we’re talking about boys, girls, glocks, gray hair or greed– human bias invades and influences juror decisions about victims and their alleged perpetrators as well as civil litigants from corporations to careless drivers.  Human as these biases are, they obviously reach far beyond but have specific application in the confines of the courtroom. 

So what can civil litigators learn from an article on the gender effects of weapon use? 

1)  Violating juror expectations can be an excellent persuasive tool. 

Under the surface or out in the open, juror expectations are always operating and influencing information processing and decision-making.  Meyer writes, “Branscombe and Weir (1992) argued that behavior which does not fit classic schema of the female stereotype will be construed as abnormal.  It is then easier to assign alternate outcomes and blame to the supposed victim.” [1]

Sure, violated juror expectations can result in negative responses to the violator.  And when you’re talking the effect of using assault weapons, “This viewpoint may be even more damaging for women.”1  However, juror expectations can work in your favor.  A surprising or even shocking message from a trial attorney or witness can violate jurors’ expectations in a positive way and result in greater credibility and persuasive power.  Embracing obvious case challenges and juror “givens” is often the best way to pique juror interest and take a position of strength in spite of your perceived weaknesses. 

 

2)  Jurors often make the most out of what you discuss least. 

In most instances, a simple revelation of the facts without any TV drama or unnecessary histrionics gives jurors exactly what they need to decide on their own what is important (e.g. a victim’s weapon type is appropriate, an employee’s pattern of past behavior is critical to his termination, a corporation’s consistent push to exceed government standards is relevant to its safety performance, etc.).  Most soft-pedal issues are predictable, and mock jury research is a great way to help identify how to handle them with greater confidence and give jurors exactly what they need to absorb your trial message. 


[1]From, Meyer, Glenn.  (2009).  “Will It Hurt Me in Court?  Weapons Issues and the Fears of the Legally Armed Citizen.”  The Jury Expert 21(5).  September 2009.  http://www.astcweb.org/public/publication/

 

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