August 16, 2012

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

By Dr. Ken Broda-Bahm 

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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. 

Personal experience and even mock trials can suffer from the problem of anecdotes. Once we’ve met a juror who is fatal to a particular kind of case, we are likely to generalize, believing in practice that it was everything about that person that made them fatal. This young man who worked as a clerk was all too ready to blame the corporation, so no more young men…or clerks. When analyzing at the level of individuals, it is hard to separate the relevant factors from the irrelevant factors. Survey research or any project with a good enough sample size will allow you to transcend that, testing what matters to the ultimate decision at a level of statistical significance. 

And despite our suspicion that “everything matters,” when you run the numbers there are usually only a few things that matter. For example, when we looked at our data from the product survey last month, there were three reliable conclusions that rose to the top. Taking a look at these factors can help directly inform your next product defense jury selection.
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1. Beware of Product Label Readers
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The product manufacturer and seller might initially like label readers. After all, they seem to be the ones who take responsibility and make sure that they’re informed about all instructions and precautions. Wouldn’t the most careful be the most critical of the careless? Not necessarily. We asked our research participants whether they read product warnings word for word, whether they skimmed them, or whether they ignored them. We also asked, “If you suffered a significant bodily injury while using a typical consumer product, would you pursue a lawsuit against the company that made the product?” Turns out, those who say they’re most likely to avoid the label are also those who are most likely to avoid the lawsuit. 
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Product 6
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One aspect of the question, of course, is that it is only measuring what the people say they do, and not their actual behavior with labels, and is likely to be more acute in the more public setting of voir dire than in a juror questionnaire. But rather than being a limitation, that may be part of the explanation for the finding. Let’s say that what the question really measures is a willingness to admit to disregarding labels, then it makes a little more sense why those who are most willing to admit to their own behavior would also be the ones who believe in taking personal responsibility. 
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So whether it tracks with actual behavior or whether it doesn’t, the attitudinal question still works in identifying the higher personal responsibility juror. Getting that out during jury selection can be as simple as asking jurors about their own behavior either generally, or regarding a recent purchase.
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I want you to think back to the last time you bought a product that was potentially hazardous — a product that came with a warning label. It may have been a drug, or a weed wacker, or bicycle helmet. Do you have that in your mind? Okay, now when you were taking that product out of the box, how many of you read the warning word for word? How many of you skimmed it? And how many of you disregarded it altogether?
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You would factor their answer into your strike choices, being suspicious about the first group (readers), mixed on the second (skimmers), and favorable toward the third (disregarders). 
 
2. Beware of a Collective Responsibility Orientation
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Label reading is one reliable cue toward personal responsibility, but it also helps to look at the larger personality orientation. Some are inclined toward a collective view (think My Brother’s Keeper) and some are inclined toward an individualistic view (think Atlas Shrugged). Our current political climate has done us the favor of making those distinctions sharper than ever. Take the health insurance law for example. Supporters see it as a way of applying a collective responsibility to help the millions of uninsured and underinsured, while opponents see it as an unprecedented intrusion on personal responsibility and liberty. 
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In a products and personal injury context, the civil litigation system can be viewed as a means of collectivizing responsibility and transfering wealth from those who have to those who need. One of the more reliable behavioral indicators of someone’s view of your case is their political leaning. Democrats are more likely to take a collective view, to support litigation and higher damages, and to find against the company. We found this again in our recent survey. We provided this scenario: “A consumer bought a product from a company and experienced a severe injury when using the product and is suing the company. The company printed the risks of using the product on the warning label. Knowing nothing else, would you favor the consumer or the manufacturer?”
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Product 1
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Interestingly, this effect is even more pronounced when an element of personal irresponsibility is added to the scenario. In this case, we added, “The consumer followed some, but not all of the safety precautions on the product label” to the scenario.
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Product 3
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Democrats are also more likely to say they would sue if they themselves suffered significiant bodily injury while using a consumer product:  66 percent of Democrats compared to 38 percent of Republicans. Of course, you can’t ask for political leanings in most cases, but you can often ask questions that generally tell you the same (e.g., How many of you favor the new healthcare law?), or you can ask about the attitudes that are really doing the work under the surface: collectivism versus individualism.
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I’d like you to think about your notion of responsibility – and how we either share it liberally across society, or conserve it and place it with the individual. Some people are close to what I’ll call a “collective” view and would say that to some extent at least, all of us have responsibility for all of us. Others would be closer to what I’ll call an “individualist” view and say that responsibility is personal and belongs with each individual, and only that individual. If you had to say which of those two views you are closer to…. 
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3. Beware of Anti-Corporate Jurors
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We’ve studied anti-corporate bias for nearly a decade, and the attitude plays an important role in products cases because those cases usually pit an individual against a corporation and easily invoke the preexisting narratives of corporate carelessness, callousness, and greed. The next post in this series will dive more deeply into this relationship as it emerged in our recent survey, and provide some recommendations on conducting an oral voir dire that spotlights the worst anti-corporate attitudes.
 
These are three factors that our survey points to as increasing the risk for product defendants. The factors won’t be the same in every case since each product case has its own story and distinct strengths and weaknesses. But in each case, the central need is to identify your targets and know what you’re after before you start talking to the potential jurors. 

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Other Products Posts: 

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Cite Research to Persuasion Strategies (2012). National Juror Survey: Products. 

Photo Credit: Jeffrey Beall, Flickr Creative Commons
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