Persuasive Litigator

The Products Survey (Part III): Safety Test Your Jurors

By Dr. Ken Broda-Bahm 

Two jurors sit side by side in the box reacting to the same information. The first sees a consumer who chose to use a product in a deliberately risky manner and has no one but himself to blame for the resulting injury. The second sees a company that had the knowledge and the power to foresee the patterns of consumer use and deliberately chose to ignore the risks by, instead, hiding behind unrealistic warnings. The story and the facts are the same, but the differences in juror mindset and attitude lead to strikingly different conclusions. 

Product cases can end up being small morality plays in a theater located at the intersection between corporate responsibility and individual responsibility. In that context, some jurors naturally pose a greater danger to the product defendant, and there is a need for a good way to find out which ones. We know at this point that the answer doesn't lie in juror demographics, and it isn't easily discernible through occupation or anything else that is easy to see in the panel. Instead, what we need is a reliable metric to discern the most relevant attitudes. We've written before on the Persuasion Strategies Anti-Corporate Bias Scale which provides a seven-question validated measure of the attitudes that predict an initial leaning against the company in an individual versus corporation suit. While the scale applies to litigation generally, it can also be useful in particular contexts like products liability. This post, the third in our series, will focus on the role of anti-corporate bias in products cases, and share the findings resulting from application of our scale.  

Take a Schematic Approach to Jury Instructions

By Dr. Ken Broda-Bahm: 

Big win for Apple. In a dramatic conclusion to the company's lawsuit against rival pad and smartphone maker Samsung, the Cupertino powerhouse convinced a federal jury that a majority of Samsung's smartphones and tablets infringe on valid Apple patents, in many cases willfully, and received an unprecedented $1.05 billion award. The verdict was notable for its speed. With 773 individual infringement claims, 100 pages of instructions that took a judge three hours to read, and a 20 page verdict form, jurors were widely expected to take their own sweet time in reaching a verdict. According to one commentator early on Friday, "There's no way a jury composed of mostly non-technical people will get through the verdict form in three days." But by the end of the day on Friday, the jury had done exactly that. 

How is that possible? If they were approaching the task with a blank slate, then it is easy to see them taking a week or more to understand and apply the legal framework. If, on the other hand, they were coming to the task already in possession of a common sense notion of what "copying" means and what "a novel invention" is, then the task gets far easier. While many will offer opinions on what the verdict means for the market, and intellectual property cases, I want to take a different tack by looking at the question of how jurors understand instructions. Sara Gordon (2012) recently completed the first ever substantive review of cognitive schema (patterns or mental frameworks) as they relate to jury instructions, and the overarching takeaway from her work is that much of the attention on making instructions more understandable by focusing on "plain language" is missing the point. The best way to improve the use of jury instructions is to adapt the instructions to the knowledge that jurors are coming in the door with -- in other words, adapt to the schema. 

Clothe Responsibility in Action, Not Inaction

By Dr. Ken Broda-Bahm 

Imagine two scenarios involving figure skaters just before a competition. In the first scenario, one skater, perhaps a sneakier version of Tanya Harding, loosens some of the screws on the bottom of another contestant's skate causing her opponent to fall and delivering the victory to the saboteur. In the second scenario, that same skater doesn't touch the screws, but notices that they are loose and decides to say and do nothing about it, and the result is the same. Both situations are ethically comparable, since in each case, a selfish choice results in an unearned victory and potential injury to another. But as you might expect, the two scenarios are evaluated very differently, with greater responsibility and blame being placed on the act (the first scenario) over the failure to act (the second scenario). 

That is the result of a recent study conducted by a group of researchers out of Brown University (Cushman et al., 2011). Using 24 short stories, including the figure skating scenario, the social scientists conducted a brain imaging study to look at why we tend to view the active harm as morally worse. The study carries some important implications for how we think about legal responsibility, because advocates often have a choice in how much emphasis to give to acts and omissions respectively. This post will take a look at this novel experiment and draw some conclusions for framing the legal arguments when you are trying to place or to escape responsibility. 

The Worm in the Apple-Samsung Trial: Treat Patent Jurors Like the Consumers They Are

By Dr. Kevin Boully and Dr. Karen Lisko:

Inside the shiniest of apples wiggles the risk of a worm. We learned as children, when reading our first books and watching cartoons, that something might be lurking beneath the apple’s surface. As adults, we rarely give it a second thought. We take a big bite and go back to swiping our smartphones and updating social media. 

A more consequential risk lurks beneath the surface in the ongoing Apple v. Samsung “patent trial of the century.” Now in its third week in front of a nine-person federal jury, both Apple and Samsung have staked out positions around one of the most important dynamics in patent jury trials -- jurors’ perceptions of how patent protection affects them as consumers. Patent trial strategy should address the fact that jurors’ foremost concerns – and a powerful and quiet motivation for their decisions – often center on how each party’s position influences them as credit card-carrying “buyers” in the market for ever-evolving techno-gadgets. In this post, we react to reports on the first two weeks of the Apple v. Samsung trial with a particular focus on the broader lessons for persuading patent jurors. 

The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense

By Dr. Ken Broda-Bahm 

During my most recent jury selection, the judge rather uncharacteristically allowed counsel unlimited time for voir dire. The team I worked with was delighted to have the extra time, but still stuck to a fairly disciplined approach of getting what was needed and getting it over with. (Message one to jurors: We respect both your opinions and your time). As opposing counsel's voir dire stretched into the second day of trial however, with no sign of a "please wrap it up" from the judge, it struck me: Our adversary has no idea of what he is trying to strike, so instead, he is just using his time to transparently trot out each of his case themes for the panel's approval. When it came time for strikes, to my eyes at least, he simply picked on the basis of demographics in a way that had nothing to do with the hours that he had spent talking with the potential jurors.

The better approach, of course, is to know your targets and to use the voir dire time you have -- whether brief or extended -- to uncover those factors. Sometimes your targets are based on your own judgement, mock trial research, or reasonable guessing based on past cases. But in other cases, the strikes can be drawn from larger-scale attitudinal research. Persuasion Strategies recently completed a project with the recruiting and survey company K&B National Research that involved a nationwide telephone study of 406 jury-eligible participants to measure attitudes on a number of topics relating to products liability defense litigation. In June, 2012, we asked participants about their views on product testing, labeling, and legal responsibility. We also asked survey participants to report their leanings on a number of brief litigation scenarios. This post, the second in the series, focuses on a few factors that emerged to characterize the jurors posing the greatest risk to a product manufacturer or seller.