May 6, 2013

See the Process and Not Just the Product in Deliberation

By Dr. Ken Broda-Bahm:

Over the weekend I gave a presentation at a law firm retreat in Palm Springs. The presentation drew from a recent mock trial in an insurance dispute and the deliberation video clips I was playing could’ve been seen as a parade of mistakes: jurors ignoring instructions, flagrantly applying their own experience and knowledge, and framing the dispute within their own terms instead of the frame provided by the presenting attorneys. After about an hour of this, one attorney in the audience spoke out: “Do you still,” he asked, “have faith in a jury to deliver a good verdict?” In response I said, “Yes, I do,” not only in reaction to current political questions over whether the jury can do the job, but also based on a generation or more of social science research summarized and advanced in an article currently on my nightstand. In short, even when we might disagree with the product that a given jury hands down in the form of a verdict, jurors are following a process that is valid, valuable, and to at least some extent, predictable. 

The article on my nightstand was written by two communications professors from University of Colorado and Pennsylvania State University (Sprain & Gastil, 2013). They reviewed the literature on what it means to deliberate and conducted their own study focusing on the survey responses provided by more than a thousand jurors post-trial. From that they developed an interpretation of the ‘rules’ jurors apply when trying to come to a verdict. The article shares a set of simple but important findings and conclusions that should not only increase our faith in the jury, but should also inform our practice when dealing with jurors. This post takes a look at the study and spotlights four of the conclusions that should matter most to the practicing litigator.

The researchers (Sprain & Gastil, 2013) sought to depart from much of the research on juries focusing on inputs (arguments and appeals) and outputs (evaluations and verdicts), and instead look at what happens in between: jurors’ own process as they work toward a result. To do this, they wanted to prioritize jurors’ own self-understanding of what they were doing in the manner of an “ethnographer aiming to study the role of communication in a ritual ceremony.”

Using a dataset of post-trial surveys conducted on 1,206 jurors who had deliberated in a total of 289 trials in King County Washington, they performed a content analysis of the jurors’ open-ended responses describing the experience. Based on this review, they say, “It appears that jurors have a somewhat broadly shared cultural understanding of how to conduct jury deliberations.” Jurors support and apply deliberative rules that are rigorous and democratic, and they value open-minded, considerate, and respectful communication in order to get to a common verdict. Importantly, this is an article by communication theorists written for communication theorists, but there are also some very practical implications that I want to make sure litigators don’t miss.

Finding One: Jurors Take Jury Service Very Seriously

“The jurors in our study,” Sprain and Gastil note, “took deliberation very seriously, expressing the importance of paying attention, making the right decision, and participating in deliberation.” Sorting the responses, they found that one of the most frequent categories focused on the ideals of jury service and the deliberation process. These comments referenced the notions that “deliberation should be fair, thoughtful, and objective.” It should embrace disagreement, but in a way that is not confrontational. Participants should be thoughtful and open to different points of view and, most of all should be working together. Taken as a whole, these comments reflected a view that “jury deliberation should be not only analytically rigorous, but also democratic — with speaking opportunities for all jurors, open-minded consideration of different views, and respectful listening oriented to creating mutual understanding.” In other words, even as they might try to escape jury duty during selection, once they are picked, it becomes an honor and a heavy obligation.

Recommendation: Play to These Ideals in Your Presentation. In addition to thanking jurors for their service or repeating what the judge has already said about their important responsibility, take a moment to add on to that sentiment in a substantive way and tie these ideals to the work jurors will tackle in the end:

We understand that you’re not likely to take either my word, or opposing counsel’s word, at face value. Instead, we understand — and appreciate — that you are going to want to look at everything in a way that is thorough, and careful, and fair. And we know that each of you will bring your own voice to the task. And that is how it should be, because your decision and your process are both very important. 

Finding Two: Jurors Seek a Process and Not Just Instructions

Citing research showing that jurors take the legal instructions seriously and aim to give them great importance, Sprain and Gastil note that legal instructions don’t provide jurors with rules for interacting. So in addition to the law, jurors also seek a set of norms that will guide their participation in the deliberative process. As one juror opined at the end of service, “It would have been helpful to have some suggested protocols or procedures to follow to ensure a fair and nonconfrontational deliberation process.”

When conducting a mock trial, we try to give mock jurors that protocol, reading not only the legal instructions but also reminding them to speak one at a time, to try to share reasons before voting, and to make sure they’re hearing from everyone before finalizing a point. Part of that reason is pragmatic: In the time-limited setting of a mock trial deliberation, we usually don’t want to spend precious time watching mock jurors try to figure out those norms on their own. In a real trial, a judge won’t similarly instruct them, but that need for at least some road map remains.

Recommendation: Subtly Suggest a Process. You can’t give your jury a to-do list for deliberations, but you can in more subtle ways set their expectations for what is to come, as the example does above. In addition, taking smaller moments to say things like, “and I know you’ll want to look at this closely,” or “you might be asking yourself in deliberations what should this party have done instead?” can also help to sketch out an image of what jurors should begin doing once the door to the jury room closes.

Finding Three: Jurors ‘Deliberate’ Both Individually and as a Collective

Pointing to research (like Goodin and Niemeyer 2003), the authors investigate the idea that deliberation consists of both internal processing at the time the information is received and discussion later. This would seem to be true especially for a jury where there is a long period of time when they are receiving information and a comparatively shorter amount of time when they are discussing it. Looking at the survey responses, Sprain and Gastil find that “Jurors understood that they were to wait until entering the jury room to discuss issues, this does not mean that they simply acted like ‘sponges’ observing the trial without judgment.” Citing examples of jurors disclosing their immediate reaction to information, it seems clear that jurors are reacting at the time, not somehow storing the information in order to react later. “Consideration without (or prior to) interaction is part of the deliberative process,” they found, “It is also clear, however, that this is not enough for the average citizen, at least in the context of a jury.” That is, the final conversation still plays a role and a jury deliberating together is still likely to refine or even depart from what the verdict would have been if it was the result of individual polling.

Recommendation: Present as If Your Jury is Constantly Deliberating (Because They Are). I’ve written before that your whole strategy should be oriented to the reality that your fact finders are active processors and not passive recipients of your message. That means thinking about how your fact finder participates in the persuasion and it means adapting to the motivation that they’re bringing to the task. Instead of thinking, “We’ll need to address that before they deliberate,” litigators need to realize that, in effect, they’re deliberating now and need to continuously assess and adapt to expected reactions as close as possible to the moment those reactions occur.

Finding Four: Jurors (Unsuccessfully) Seek to Bracket Out Emotions

While it can be difficult in practice to distinguish between use of reason and emotion during deliberations, that doesn’t prevent jurors from trying. As one noted, “I was trying not to focus on my emotions as we were not supposed to be biased in our decision making.” Another added, “I felt empathy for both sides of the case, but you have to bottle it up! That is the most challenging part.” But based on other research reviewed in Sprain and Gastil’s article, there is a question of whether jurors actually should bottle it up because emotion motivates jurors to devote energy to the task and to take part in deliberation. That includes providing an incentive to generate reasons, suggesting that there is no obvious dichotomy between reason and emotion when it comes to deliberations…or any other human activity. As another juror admitted, “I couldn’t say ‘no’ emotions simply because emotions are, I believe, a part of the human condition.” Reviewing the comments, Sprain and Gastil uncovered many statements providing an emotional reaction to the content of the case: appreciation, distaste, empathy, or sympathy. And apart from being inevitable, this isn’t a bad thing. “Our findings suggest that emotion can not only facilitate deliberation in this sense, but can also reinforce more fundamental deliberative norms.”

Recommendation: Speak to What They Seek, But Adapt to What They Do. Even as it remains impossible, jurors will believe that they’re supposed to — and many will think they successfully have — set aside emotions. For that reason, wise litigators will disclaim emotional appeals (This is evidence, not emotion…we want you to base your decision on facts, not sympathy), while still adapting to the emotional connections that jurors will inevitably make by telling a story that speaks to the motivations that will favor your side of the case.

So that answer is a little longer than the one I gave in the Palm Springs conference room. But the important point is that there are good reasons to have faith in the jury’s process of deliberating. The less we treat that time as a black box, and the more we conduct and apply research on what is actually going on in the deliberation room, the closer we come to really understanding what the jury is up to.


Other Posts on Deliberations: 

____________________ Leah Sprain and John Gastil (2013). What Does It Mean to Deliberate? An Interpretive Account of Jurors’ Expressed Deliberative Rules and Premises Communication Quarterly, 61 (2), 151-171



Image Credit:  ericskiff, Flickr Creative Commons


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