By Dr. Ken Broda-Bahm:
Who leads and who follows? That question can be critical to understanding and adapting to your jury. The individual who sets the agenda, guides the discussion, and leads uncommitted or wavering jurors to a conclusion is obviously worth a closer look than those who take their cues from others. A failure to know and to thoroughly learn about that future leader can have big consequences for your case. Samsung learned that recently when following Apple's historic $1 billion patent verdict against the company, Judge Koh denied Samsung's motion for a mistrial based on the supposed improper influence exerted by the jury's foreperson, Velvin Hogan, a patent holder and former Seagate employee. "Samsung’s counsel expressed no concerns about Mr. Hogan’s past employment at Seagate,” the judge noted, and the company displayed “lack of reasonable diligence in investigating Mr. Hogan’s relationship with Seagate.” So, in other words, if you don't learn enough in voir dire about your jury's future leader, no use crying about that to the judge.
Note that I say jury "leader," not necessarily "foreperson," because while foreperson is the formal role, the natural psychological trait is simply one of leadership. Often, the leader will be recognized as foreperson, but we've also seen plenty of situations where someone who isn't well suited to leadership is nonetheless selected for foreperson (e.g., "You've been on a jury before...why don't you do it?"), and when that happens, the foreperson can end up playing a kind of honorary role, occasionally calling for a vote or writing down the decisions onto the verdict form, while the real leadership is exercised by others. But how can you tell who will end up exerting true leadership within the jury? Fortunately, it is not as much of a guess as you might think. According to a forthcoming study (Cheng et al., 2012), it has to do with both exerted dominance and prestige, and it is reliably spotted by experts and nonexperts alike based on as little as 120 seconds of exposure. This post takes a look at the research and provides some advice on how you can spot your jury's leader.
The Research: Leadership Spotted in Two Minutes
Social scientists have long wondered about the exact way leadership emerges. Some have argued that it is a function of dominance, with rule exercised through displays of power or intimidation. Others have countered that leadership stems from prestige, emerging as a result of shared knowledge and expertise used to gain respect. To put it into context, think of how a band of apes might behave: Do they accord leadership to the strongest, loudest, most chest-thumping member, or do they follow the older, wiser silverback who knows where the best food is? A group of psychologists from British Columbia set out to answer that question as it relates to us modern humans. First, they asked research participants to work together on a collective task, then complete ratings on other group members, while being observed by experts who were coding their behaviors. The researchers found that both dominance and prestige seemed to work as routes to leadership. Dominant and prestigious members had more influence on the task and were perceived as more influential as well. As lead author Joey Cheng noted, "Our findings suggest there are really two ways to top the social ladder and gain leadership – impressing people with your skills, or powering your way through old-fashioned dominance."
But it is part two of the study that is more interesting for those of us who are sometimes sitting in a courtroom visually scanning the pool of potential jurors in order to pick up cues. The team looked at how we allocate visual attention and what that says about leadership. Using eye-tracking technology (small cameras that record exactly what our eyes are focused on), the researchers showed a new group of research participants two minutes of group interaction from the first study. Interestingly, the researchers found that even though this new group was watching a pool of strangers for just two minutes, they were still able to predict who would emerge as the group's leaders, and their picks tracked with those same two traits: observed dominance and prestige. "By measuring levels of influence and visual attention," Cheng concluded, "We find that people defer to and readily spot the prestigious and dominant leaders."
The Recommendations: Identify Your Jury's Leader
So how does this help you analyze your own jury during voir dire and trial? It underscores a few practical suggestions.
1. Consider Both Dominance and Prestige
As you review your panel, note that some individuals will show dominant behaviors (talking louder and more often, interrupting, giving full and direct eye contact), while other individuals will share information that adds to prestige (related experience, educational background, willingness and ability to explain). The researchers found that both were roughly equivalent routes to leadership, so expect that your jury's leader or leaders could come from either camp. Notably, the study also found that both effects were largely independent of likability. Predictably, perhaps, prestigious leaders were more likely to be liked and dominant leaders less likely, but across the board, the other group members didn't make it a popularity contest, but instead responded to both dominance and prestige.
2. Pay Attention to Your Attention (and Other Panelist's Attention)
We've noted previously that it pays to pay attention to the biggest talkers in voir dire, noting research showing that statements repeated by a single individual have nearly the same influence on the group's decisions as statements offered by a number of individuals. The present study adds that it also pays to pay attention to your own attention and the attention of the other panelists. When you initially scan the group, who do your eyes light upon? Who do the other venire members seem to notice most? Even if you're not sure of the reason, there is likely to be something to that. Attention is both a cause and a measure of our likelihood to make a leader out of a member of a group.
3. Trust Your Gut
We have typically offered the advice to not trust your gut too much, particularly in jury selection. The identification of leadership, however, may be a special case. There are evolutionary reasons why we are more likely to pay attention to and be drawn to leaders, so in that case, instinct or gut may be exactly what we are after. So when you get the feeling that, "I think that person is likely to lead this jury," that is probably more reliable than the feeling "I think that hispanic women are more likely to favor my products defense."
When dealing with a pool of unknowns, there is the temptation to treat them all as equals. But based on what we know of group dynamics, they're far from equal and some members of the jury will exercise far greater influence. The sooner you learn who, the better. In Samsung's case, it is too late for them to focus on Mr. Hogan and learn more about the experience-based prestige that made him so apparently influential to the jury. Voir dire would have been the time to do that.
Other Posts on Jury Group Dynamics:
- Help Jurors Stay Off the Bandwagon
- Pay Close Attention to the Big Mouths in Voir Dire
- That's Right, The Women Are Smarter: Pay Attention to Your Jury's Social Intelligence
- The Dangers of Persuasion: Mind Your Jury Leaders
____________________Cheng JT, Tracy JL, Foulsham T, Kingstone A, & Henrich J (2012). Two Ways to the Top: Evidence That Dominance and Prestige Are Distinct Yet Viable Avenues to Social Rank and Influence. Journal of personality and social psychology PMID: 23163747
Photo Credit: SeattleRay, Flickr Creative Commons