By Dr. Ken Broda-Bahm:
A classic case of pretrial publicity is currently playing out in Steubenville, Ohio. After members of the hacker's group called "Anonymous," posted a photo and video linking two high school football players to the rape of a teenage girl and pointing toward an official effort to limit the scope of the scandal to protect the football team, the story has saturated local and national media. Scheduled to be in trial next month, their attorney has claimed "a right to a fair trial for these young men has been hijacked." This is the kind of scenario we most readily think of when we consider the effects of pretrial media: Wall-to-wall coverage of a criminal case leads to such a high level of knowledge, or perceived knowledge, that it becomes impossible to find an open-minded jury. We're less used to thinking about this media effect in a civil law context, especially in those mid- to smaller-sized cases that make for boring news stories.
But there is a broader effect at work, and a way that media coverage matters to a wide spectrum of civil trials as well. If your future jurors are exposed to related news or similar stories, they're likely to view your case in the context of that information. While most of the research on pretrial publicity has focused on criminal cases, some (e.g., Bornstein et al., 2002; Robbennolt & Studebaker, 2003) have shown that its effects can be as acute, or even more so in a civil trial context. A current study reported in the November edition of The Jury Expert (Platania & Crawford, 2012) looks at the influence of coverage of similar cases on products liability verdicts, finding that exposure can have a substantial influence. This post takes a look at that study and draws out some general suggestions for civil litigators looking to keep an eye on the media climate.
Research: The Coverage Creates the Context
Judith Platania, a Psychology Associate, and Jessica Crawford a recent graduate (2012), respectively from Roger Williams University in Rhode Island, wanted to investigate the effects of media exposure in a civil trial context. Choosing the situation of a products liability suit, they take note of research indicating that prior exposure to products information does have an impact, and instructions to discard that information don't generally work. In carrying out their study, they looked at the effect of exposure to a news article about a verdict award in a products liability case, and varied the amount in the award discussed in the publicity ($14.25 million, $4.75 million, or $800,000) and varied the amount of time between exposure to the news and decision making (either three days or three weeks).
Those who read about the highest level of award in a previous trial ($14.25 million), three days prior to providing a verdict in a similar case, reported more positive perceptions of and greater sympathy towards the products plaintiffs, and awarded significantly higher damages in their own verdict -- more than five times as much, in fact. The authors explain this as an example of the "availability heuristic" (Kahneman & Tversky, 1982), or the tendency of people to give more importance and influence to something that is easier to recall. An alternate explanation, however, is that jurors used the earlier figure as an anchor for their damages, and more recent exposure meant a stronger anchor. In either case, it is clear that the information read by mock jurors had a strong influence. And it is all the more important to consider that the research participants in that setting were asked to disregard any prior knowledge or information, just as they would have been asked in a legal setting. "While jurors will use available information to determine awards," the authors note, "they fail to acknowledge doing so (and insist they understand the directive to not consider previously observed information)."
Recommendations: Keep Your Finger on the Media Pulse
Our information highway has more lanes than ever before, so it is no surprise that there is quite a bit of rubbernecking going on. What that means is that litigators shouldn't just be limiting their concern to the biggest and most headline-grabbing cases. Instead, for just about every case, attorneys should ask, "What will jurors likely have on their minds that could influence the way they view my case?" From this study, as well as our more general experience, let me suggest three things.
One, Timing Matters
The researchers noted a huge difference in effect between the three-day and three-week exposure conditions, with the latter seeming to be a long enough gap to effectively nullify the influence. After three weeks, there were only insignificant differences between the verdicts awarded by those who read the pretrial publicity focusing on the large, medium, or small verdicts. After just three days, however, the effect was profound, with those hearing about the larger verdict awarding substantially higher amounts in damages. This suggests, intuitively enough, that your attention needs to be on the most recent exposure and stories that are still in the news or relatively fresh at the time of jury selection.
Two, Broaden the Net
The traditional way to think about pretrial publicity is to ask, "Has this case been in the news, and if so, how much has been covered?" That is an important question, but it is as important to ask whether there are similar cases that have been covered recently that would create a context. And beyond legal cases, it is also worth asking how the current news context in general could shape views of the case. In light of the recently concluded fiscal cliff negotiations, for example, might jurors be more susceptible to a theme of government incompetence? If a large-scale oil spill is dominating the headlines, could a jury find a narrative of corporate irresponsibility and indifference more plausible? Instead of just looking at local coverage of the instant case, look at stories, including national stories, that could create a background of understanding that relates to your case. And don't forget about social media: We are coming to the point, if we're not already there, at which what is being widely shared on Facebook exerts more influence than what is covered in the local news and the paper.
Three, Don't Rely on Rehabilitation
After using pretrial research, oral voir dire, or a supplemental juror questionnaire to discover the context that jurors may be bringing to the evaluation of your case, the question becomes what to do about it. Of course, it is a judgment call you can only make knowing the vulnerabilities of your own case, but here is one piece of advice that cuts across all cases: Don't trust the venire members when they tell you they can "set aside" prior knowledge. There is value in the attempt to rehabilitate because that sends a message to the panel about what they're supposed to do. At the same time, there are some real psychological limits to people's ability to bracket out what they know and believe. The best cure for a potential juror with knowledge or beliefs that could negatively influence their view of your case: a challenge for cause, or failing that, a strike.
Here is the more general lesson relating to the ways people understand and process new information: Reactions aren't isolated, but instead swim in the sea of everything else we're exposed to. For legal fact finders, that means that you understand case reactions best when you understand the milieu in which those reactions are given. Conducting a mock trial in the community, or more economically, conducting a community attitude survey, can give you some important insight.
Other Posts on Publicity:
- Don't Say Nothing: The Limitations of "No Comment" as a Litigation Crisis Strategy
- Bad Stuff? Get It Out And Get It Over With
- Learn from Christine O'Donnell's Possible 'Witch Trial': Be Cautious in the Court of Public Opinion
Platania, J., & Crawford, J. (2012). Media exposure, juror decision-making, and the availability heuristic. The Jury Expert, 24: 6. http://www.thejuryexpert.com/2012/11/media-exposure-juror-decision-making-and-the-availability-heuristic/