Category Archives: Adapting to Arbitrators

April 7, 2016

Choose Your Words in Voir Dire to Regulate Expressions of Bias

By Dr. Ken Broda-Bahm: 

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It’s the political season, and many of us are closely watching the public opinion polls. It is interesting to see that sometimes big differences between polls are caused by small differences in wording. Do Americans “prefer,” “support,” “favor,” or “intend to vote for” a given candidate? Different words make for a different result. Question wording matters in jury analysis and selection as well. In community attitude surveys, change of venue motions, supplemental juror questionnaires, and oral voir dire, the specific words we choose for the question can strongly influence the result. One area where this problem can be acute is in rehabilitation, or the attempts by court or counsel to determine whether a potential juror can still be fair despite having expressed a bias. Psychology professor Mykol Hamilton of Centre College even coined the term “prehabilitation” to describe the common process of subtly or expressly talking panelists out of biases prematurely, before those biases have even been expressed. In a current article in The Jury Expert, the same lead author along with Kate Zephyrhawke of Hillsborough Community College carry their research one step further, and turn in one of the first efforts to quantify the differences in results stemming from various phrasings of two commonly-asked questions in voir dire. 

The article (Hamilton & Zephyrhawke, 2015) looked at the question of whether potential jurors could presume the defendant is innocent until proven guilty in a criminal context. In addition, they looked at the common question of whether the potential jurors could “set aside” their prior knowledge and attitudes in hearing the case. They surveyed 401 jury-eligible adults on their knowledge and views relating to a highly publicized Kentucky murder case. The researchers converted the questions to scale-questions (e.g., “strongly agree,” “agree,” etcetera) rather than yes/no questions (in the view that the gradations give respondents greater comfort in admitting to some bias without agreeing to the extreme end of bias). But the main manipulation was to compare the effectiveness of questions focused on ability (e.g., “Would you be able to…?”) with questions focused on ease or difficulty (e.g., “How easy or how hard would it be to…?”). The thinking is that the questions focused on ability would be seen as a question about the potential juror’s competence, while the wording focused on ease or difficulty would instead normalize the authors possibility of being challenged in being fair. Based on their results, that seems to be the case. “Had we only asked the traditional, leading, prehabilitatively worded ‘Assume’ and ‘Put Aside’ questions in the Kentucky [change of venue] survey,” the authors reported, “we would have concluded that only about one in five doubted their ability to put aside opinions when in fact over half of them did.” 

In a previous post focused on Hamilton’s work (“Don’t Prehabilitate”), I gave my own outline of what I call the “Juror Candor Toolkit,” a set of principles for phrasing questions focused on varying the context, control, and complexity of the questions in order to vary the response. That is still an approach I stick with. But the current study adds empirical data on specific wording that supplements our knowledge of what words to use and to avoid when rehabilitating jurors for cause. 

To me at least, it depends on whether you are trying to keep the potential juror or lose the potential juror. 

When You’re Trying to Keep the Panelist (or Force a Strike by the Other Side), Ask About Ability

The phrasing that is less likely to lead to an admission of bias, and more likely to lead to a “Sure I can be fair,” is the phrasing that asks whether the individual would be able to put aside their prior knowledge and attitudes. 

Put Aside Question Wording

The advice of Hamilton and Zephyrhawke is that ‘ability’ questions should simply be avoided. “In all three situations, COV surveys, jury surveys, and voir dire,” they write, “we should avoid words like ‘able,’ and phrases like ‘can you?'” But in a response to the article also published in The Jury Expert, Litigation Insights consultant Christina Marinakis makes an important point: If a potential juror is good for you but admits to a potential bias against the other side, then as a zealous advocate, you would have every reason to ask the question in such a way that makes it easier for the panelist to say they could be fair. It is not so much a matter of promoting bias as it is a desire to not do the other side’s work for them.

When You’re Trying to Get the Panelist Excused, Ask About Difficulty

When you want the rehabilitation to be unsuccessful, the potential juror needs to stick with their bias. And it is easier to agree if the question is just asking you to admit to some difficulty. The ‘difficulty’ phrasing is the clear winner in the study. “The differences between the two percentages,” they write, “suggests that when the put aside question is posed in the traditional [ability-focused] way in the courtroom, it is likely that about one-third (31 percent) of prospective jurors will misrepresent themselves, not admitting they would struggle to put aside prior opinions when in fact they would.” 

Take The Results Even Further

In her response to the research article, Christina Marinakis suggests one possibility for even better phrasing. Jurors may be reluctant to agree that they “have a problem.” Instead, consider a framing that makes the bias sound admirable. For example, 

Is it safe to say that you are likely to stick to your guns on this belief based on your experience?”

But Bring it Back to the “Magic Words”

Ultimately, experienced litigators might take this kind of advice with a grain of salt, knowing that the judge will be looking for specific language which often takes the form of an absolute “I cannot be fair.” In those courtrooms, the method of applying this advice will be to set the stage using the language that is most likely to get the potential juror to the point of admitting to a bias, then offering the “magic words” as a kind of confirmation. It isn’t foolproof, but it does improve your odds. 

Ultimately this kind of advice can feel like a manipulation of the process. But one way of looking at it is that traditional voir dire is already manipulative: It manipulates in favor of artificially holding down expressions of bias. It is likely that some judges even do this consciously because it speeds jury selection. Innovations, like those explored in this research article, lead to greater expressions of bias. That makes it easier for advocates to do their job, and that makes a fair trial more likely. 

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Other Posts on Eliciting Expressions of Bias in Voir Dire:

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Hamilton, M. C. & Zephyrhawke, K. (2015). Revealing Juror Bias Without Biasing Your Juror: Experimental Evidence For Best Practice Survey And Voir Dire Questions. The Jury Expert Vol. 27/No. 4 November 2015. URL: http://www.thejuryexpert.com/2015/12/revealing-juror-bias-without-biasing-your-juror-experimental-evidence-for-best-practice-survey-and-voir-dire-questions/

Image Credit: 123rf.com, used under license

January 25, 2016

In Settlement, Account for the Sobering-Up Effect

By Dr. Ken Broda-Bahm: 

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Consider these words through the lens of your case assessment leading up to trial: “People tend to be optimistic creatures, looking forward to a long life, imagining it full of pleasures and success, and savoring the achievements that are yet to come. Numerous writers have noted this to be a useful affair in that it helps people deal with personal setbacks and provides people with resolve to continue pursuing their dreams. When facing the moment of truth, however, people often abandon their rosy outlook. The realization that time has run out, that one’s perception was skewed, that others may witness one’s incompetence or blindness, or that disappointment may be right around the corner, all conspire to prompt awareness that the future may not be as bright as initially hoped.” That’s the rather literary coda to an otherwise scientific research article (Sweeny & Krizan, 2013) that I recently came across. Dubbed the “sobering-up” effect, the psychological bias at the heart of the study refers to the tendency for people to revise their assessments in the direction of greater pessimism as the day of decision approaches. Reviewed in Psyblogthe article documents that the tendency is robust and common across a variety of settings: Projects that begin with positivity and optimism are increasingly taken over by cynicism or even despair. 

We have all known some trial teams that drifted in that direction, and the sobering-up effect might account in part for the common scenario of cases settling on the courthouse steps. The odds are the same as they’ve always been, but as trial looms, our focus can turn more toward the negative. Now the label of a “sobering-up effect” might not be the best name: especially in a litigation context, “sobering up” sounds like a good thing. But it’s important to remember that based on this cognitive bias, assessments are not becoming more accurate, they’re just becoming more pessimistic. That is a psychological tendency that may cause litigators and their clients to artificially discount their chances for success at precisely the moment when they most need a clear-eyed and realistic case assessment, including both the pitfalls and the promise. In this post, I’ll take a look at the bias, its causes, and its implications in litigation. 

Research on the ‘Sobering Up’ Effect

In the research article, Kate  Sweeny and Zlatan Krizan of University of California Riverside and Iowa State, respectively, conducted what is called a “meta-analysis,” combining the data and the results of many studies. Their results show that, across a wide variety of settings, there is a strong and consistent tendency for people to become more negative about their chances for success as they get closer to the time when they will find out how they did. If we’ve taken a medical test or a school examination, we will be more optimistic about the results when we won’t get those results for four weeks. If we expect to receive those results in the next few minutes, though, we are more pessimistic.The analysts who forecast corporate earnings tend to become more pessimistic the closer they are to the release of the actual earnings. The same is true for driving tests, judgments of starting salaries and a number of other specific predictions. While I don’t believe the effect has been tested in a litigation context, there is every reason to expect the bias to apply to case assessments as well. Indeed, the more important the outcome is considered to be, the more likely it is that this sobering-up effect will occur. And we don’t grow out of it either: Sobering up occurs at a greater rate when the expected outcome is more familiar. In addition, when more time passes between our early assessments and later ones, the tendency to become more pessimistic over time is greater. Those are all factors which occur in litigation: important outcomes, with a fair amount of prior experience, and a long lag-time between initial and ultimate assessments. 

Analysis: Why Do We Sober Up? 

In their review of the studies to date, Sweeny and Krizan identify four reasons for the tendency to ratchet down our optimism as the decision date approaches.

  • Resetting Expectations. As we get closer to anticipated feedback, we start to project how we will feel in the event of a bad outcome. Knowing that we will feel better if we exceed expectations, we are motived to lower those expectations.
  • Loss of Control. Well before the event, many things are in one’s own control, or believed to be so. But as you get closer to the outcome, it is shifting toward being in someone else’s hands. In that context, increasing pessimism signals a change of the guard regarding who is in control.
  • Reduced Abstraction. We tend to be abstract about the distant future, but more concrete about the immediate. As the authors explain, “predictions of more distant events are often optimistic because they are based on goals and aspirations, whereas predictions of more proximal events are less optimistic because they are based on low-level details and feasibility considerations.” 
  • Increased Accountability. As we move toward a decision point, we worry about a missed assessment. The missed assessment with the largest consequence is a false positive, so we reset our expectations in order to not look foolish in a worse-case scenario. 

Implication: One More Reason to Distrust an Ungrounded Case Assessment

Fortunes are won and lost in the U.S. civil trial system. Sometimes, that is the work of a jury or judge, but more often, it is the result of a case assessment that occurs prior to trial and leads to a settlement. In making that assessment, attorneys inevitably rely on their own continuing sense of how the case is going. That is part of the job, but at the same time, careful litigators should be sensitive to the inherent subjectivity and bias that underlies that assessment. The four reasons for the sobering-up effect discussed above are not always conscious processes, but can instead be just a part of our background-motivated reasoning that colors our perceptions as we look at evidence, witnesses, and rulings from the bench. 

There can be some good reasons to ‘sober up’ on case assessment. If the litigator’s role as an advocate has encouraged an unreasonably rosy case assessment, then it can help to step back from that as trial approaches. But it can be dangerous for case assessment to be driven purely by internal calculations. If case assessment depends too much on how we feel about the case in any given moment, then there is too great a chance for biases to artificially affect our judgment. As the authors note, this is a problem that occurs when people, “look to their feelings as a source of information about their likelihood of success or failure.” When that occurs, a decline in assessed value can occur based on nothing other than the proximity of an end point combined with anxiety.  In other words, the case isn’t becoming worse, you’re just becoming more worried about it. 

The solution is to acknowledge the bias: If you find yourself becoming pessimistic as trial approaches, ask yourself, “Are circumstances genuinely changing or am I just falling victim to the sobering-up effect?” It also helps to check your own attitudes against external feedback: a mock trial if the case warrants it, or other more informal sounding boards if it doesn’t. 

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Other Posts on Settlement Psychology: 

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Sweeny, K., & Krizan, Z. (2013). Sobering up: a quantitative review of temporal declines in expectations. Psychological bulletin, 139(3), 702-724. URL: http://www.katesweeny.com/uploads/2/6/9/4/
26944848/sweeny__krizan_2013_psychbull.pdf

Photo Credit: Wackystuff (the Power of Positive Drinking), Flickr Creative Commons

December 17, 2015

Repeat Yourself: (Carefully) Repeat Yourself

By Dr. Ken Broda-Bahm: 

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If you’ve had young children, then you know that at a certain stage, watching the same movie over and over again with your kid comes with the territory. As much as the repetition might annoy you, the kids seem to love the familiarity and comfort of knowing exactly what is going to happen from moment to moment. The repeated exposure makes it more rather than less attractive. Psychology has a name for this phenomenon: the “mere exposure effect.” As Derek Thompson writes in a story in The Atlantic, “We like something more merely because we’ve been previously exposed to it. So there is evidence not only that we replay songs that we like, but also that — up to a certain point! — we like songs the more often that we play them.” If we control for everything else and just vary the exposure, then something that we’ve seen or heard before is usually going to hold greater attractiveness for that reason alone. The fact that we know what to expect means that it requires less cognitive effort and seems to be more “our own” rather than something outside of us. That preconditioning makes us more likely to attend to, remember, trust, and use that information. 

The mere exposure effect should work in litigation as well. Information that jurors are exposed to a number of times should be more sticky, and litigators can increase the salience of a piece of information just by returning to it again and again. That would be the simplest trial strategy in the world…but for one important fact: The trial takes place on borrowed time, and we are the ones borrowing that time from the judge and jury. As a result, there is a strong “Don’t waste my time” vibe that is usually coming from the fact finders. Any strategy that calls itself out as being geared toward repetition and nothing else will encourage your audience to tune out and to resent you for thinking so little of them as to believe that repetition will work. But the problem is, repetition does work. If it is a key fact, message, witness, or visual, then jurors shouldn’t be hearing about it just once, they should be hearing about it from start to finish in the trial. Thankfully, it is possible to carefully draw upon the mere exposure effect without exceeding the jury’s patience. This post shares a few thoughts on how to creatively repeat in three areas: demonstrative exhibits, themes, and witnesses. 

The Repeated Graphic 

A good demonstrative exhibit can give a jury a powerful and immediate grasp of a key point, or provide a good holistic overview of a large body of evidence. Using it once, however, generally isn’t enough. Because the demonstrative typically won’t travel with the jury into the deliberation room, it has to make enough of an impression that it stays top-of-mind for at least a few of the jurors. So repeat it. And a good way to avoid the fatigue of jurors thinking, “Oh, this again…” is to build it as you go by adding information as it comes out in trial. Or better yet, invite witnesses to add pieces of information through their testimony. For example, a timeline, a bullet list, or a flow chart can become more complete as the trial proceeds, giving jurors the repeated exposure but without the message of “repetition.” In addition, in the case of a complicated visual message, repeated incremental exposures allow jurors to process a little at a time instead of all at once. 

The Repeated Theme 


Your trial message becomes effective when you are able to boil it down into a theme: a simple and memorable expression that, as I’ve described it before, is able to “roll of the tongue and stick in the mind.” I have seen some attorneys, however, who will use that theme exactly once at the beginning of opening statement and expect it to work its magic. That will almost never be effective. To truly be remembered and used by a jury, even a great theme has to be repeated throughout your case: in oral voir dire, several times in opening, at key points in witness testimony, and finally in closing argument. When you are using any expression that much, however, it cannot call attention to itself. You don’t want listeners to feel, “Here comes the theme again.” Instead, the theme needs to just be part of normal language. “Simple” and “clear” will always beat “artistic” or “cute.” That way, your theme can sound and feel natural, and function as a recurring motif without wearing out its welcome

The Repeated Witness


If repeated visuals and language needs to be treated with care to avoid overkill, that is doubly true for the repeated witness. At the same time, when you have a witness that you believe has been credible and useful to the jury, then it can be a great opportunity to use them again on rebuttal, for example, or in your own case after they’ve already been called in the other side’s case. When witnesses get to take a second turn on the stand, they’ve already been introduced and the jury has already gotten a chance to get used to them. That allows the jury to focus immediately on the new information. When the witness is effective, then the mere exposure effect would suggest that the more times jurors are exposed to the witness, the more likely they will be to see the witness as useful, likable, and believable. Of course, there has to be a clear answer to the jury’s implicit question, “Why are we hearing from this person again?” Be explicit about what is new. Remind the jury during questioning, “…previously, you testified…” and then add, “…so now, the question is.” 

Lawyers need to be careful to send the message that they would never want to waste the jury’s time or the court’s time. In that context, mindless repetition is a definite no-no: It is actually the most common criticism I hear when I conduct post-verdict interviews. That said, trials are complicated and jurors are not very effective when treated as machines that retain everything they hear. Repetition has a role. So I’ll say it again: If it is a key fact, message, witness, or visual, then jurors shouldn’t be hearing about it just once, they should be hearing about it (with creative variation) from start to finish in the trial.

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Other Posts on Persuasive Tactics: 

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Photo Credit: Tomás Fano, Flickr Creative Commons (Image of Warhol installation at New York’s MoMA) 

May 11, 2015

Make the Right Kind of Eye Contact

By Dr. Ken Broda-Bahm: 

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The Minnesota State Senate, I learned from a recent NPR story, prohibits eye contact.  Incredibly, the legislative body has a rule stating that all comments must be addressed to the Senate President, and that rule is interpreted to mean that senators cannot look their fellow senators in the eye while speaking. The reason for this bit of absurdity is, apparently, that the lawmakers believe direct eye contact leads to hostility and a loss of decorum. According to former majority leader, Senator Tom Bakk, “Going through the president forces people to listen rather than watch facial expressions and look at each other, which sometimes I think kind of inflames some of the rhetoric going back and forth.” 

The problem with that reasoning is that it assumes there is a simple and deterministic meaning to eye contact, but there isn’t. Direct eye contact can convey hostility and disrespect, but it can also convey the opposite. The difference lies in what the rest of the face is doing, and also in the situational context. The NPR story quotes a dog behavior expert, Clive Wynne of Arizona State University: “A dog that’s wagging its tail happily while it looks another dog in the eye is maybe communicating something friendly,” Wynne explains, “whereas a dog that growls and has its hackles raised in a very tense body posture — the eye contact may just intensify that threat.” Among humans, an ability to give eye contact doesn’t necessarily increase persuasion, but it all depends on the context. In the complicated context of American litigation, eye contact plays a number of very important roles: It connects, communicates, and builds credibility. So what Wynne says to the Minnesota Senate applies as well in court: “Encourage positive, friendly eye contact, and discourage more aggressive, intimidating forms of eye contact.” In this post, I’ll look at a few different roles for attorney and witness eye contact. 

 

For All Eye Contact

In determining whether eye contact is friendly or aggressive, the key question is: “What is the rest of your face doing?” Here is an exercise you can do privately, and you don’t have to be an actor to do it. Set your eyes on a focal point, and now shift your expression to one of “concern,” now try “happiness,” now transition to “anger.” As you vary the nonverbal message, notice the small and subtle changes in the muscles around your face. The differences might be slight, but if you feel it, then you show it. Remembering that there is no such thing as a “neutral” expression, what you want to convey through your eye contact in most legal settings is interest, attention, and connection: not a blank stare, but an honest and open engagement. 

For Attorneys

Attorneys need to show respect to the judge and make a connection with the jury, and eye contact matters to both. But I want to focus on the attorneys’ two key moments in testimony. 

In Direct Examination

When questioning your own witness, your focus should be where everyone else’s focus should be: the witness. The point of direct examination is to put your witness in the spotlight. While the witness should focus on the jury (see below), the questioning attorney should join the jury in keeping the focus on the witness. At this point, the witness is the star of the show and all eyes should be on the stand. 

In Cross-Examination

Cross-examination is different in the sense that questioners will want the jury’s focus to shift a bit toward themselves. Instead of allowing the witnesses to be the star, the attorney steps into that role, to at least some extent, in order to make a point to the jury about the witness’s unreliability, inconsistency, or general weakness. In that setting, some of the attorney’s eye contact should shift to the jury. Looking at the jury as you ask some of the questions, for example, can make it clear that you are asking on their behalf, and voicing the jury’s own skepticism. 

For Witnesses

As the source of the facts, or the source of a key opinion, the witness should pay attention to eye contact.   

On the Stand

Look at the attorney when she is asking you questions, then look at the jury to deliver any answer that goes beyond a few words (and that should be most answers, if you don’t want to just “yes” your way through testimony). You should do the same whether it is direct or cross-examination, since you don’t want the jury to see you acting any differently depending on who’s asking the questions. In both cases, receive the question attentively from the questioner, and then deliver the answer directly to the jury. 

In Deposition

The ultimate audience for a deposition is the jury that might see it, but at the deposition itself, they’re not there. That makes the question of eye contact a little difficult. Some consultants advise witnesses to look directly into the camera lens, treating that as the jury. I don’t recommend that for two reasons: One, it can look artificial, suggesting to future viewers that the witness is playing to the camera, which seems insincere; and two, it can feel artificial to witnesses, continually reminding them of the presence of the camera, which increases awkwardness and constrains natural communication. The best advice for the deposition witness is to first make sure the camera is positioned near the questioning attorney, and then to simply look at the person who is asking you questions. If the questioner is trying to intimidate, the witness can respond by looking at opposing counsel’s forehead, or at a spot on the table just in front of the questioner. 

While there are other factors, like culture, that play a role in most settings in American litigation, positive eye contact with a key audience creates better communication and conveys increased confidence. But it needs to be the right kind of eye contact. So, what dogs apparently understand, and what the Minnesota Senate needs to learn, is what witnesses and litigators should apply every day in court.

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Other Posts on Eye Contact: 

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Image credit: 123rf.com, used under license. 

January 21, 2013

Don’t Pull the Plug on the American Civil Jury Just Yet

By Dr. Ken Broda-Bahm: 

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There is a body lying on the pavement. It is still twitching a bit, but fading fast. “This was no accident,” says the hard-boiled detective, “this was an attempt at premeditated murder…and it just might succeed.” If instead of “body” we’re referring to the American civil jury, and instead of “hard-boiled detective” we’re referring to a new article in the Yale Law Journal, then the scenario is roughly the same. The analysis, from Yale legal history professor John H. Langbein (2012), notes the dramatic decline in civil trials (now down to two percent of all case conclusions in federal courts and less than one percent in state courts), and ties that trend to a movement from a pleadings-based system in which facts were resolved in trial, to a discovery-based system in which facts are resolved not before trial, but largely without trial. This, Langbein argues, is a consequence of the 1938 Federal Rules of Civil Procedure and the civil jury is fading by design, if not by intent, because the reforms have largely worked. In other words, the American jury didn’t fall, it was pushed.

While these rumors of the civil jury’s impending death may not be greatly exaggerated, they may yet be premature. This is particularly true if we are focusing on the role of popular judgement at a level that is somewhat broader than the formal jury as we have historically conceived it. By expanding our focus a bit in order to account for the potential jury, the expanding use of the mock jury, as well as potential new models such as California’s expedited jury, there is still the chance that the legal vox populi might live to play a role in the future.

The Late Great Civil Jury? 

For fans of the American jury system as well as those who work within it, Professor Langbein’s article is a sobering read. Like many other commentators, he notes the sharp and accelerating decline in jury trials, noting that “we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become ‘vanishingly rare.'” Unlike other commentators, however, he doesn’t link that decline primarily to the increasing costs of litigation or to the case management orientation of judges. Instead, he views the trend in more systemic terms. Noting that prior to the Federal Rules, trial was often the only way to accurately discover the facts of the case, he argues that the Rules have largely replaced “discovery by trial” with “discovery instead of trial.” While the focus is on what is called “pretrial procedure,” in practice, Langbein notes that it really amounts – in more than 49 cases out of 50 cases, to “nontrial procedure” instead. Based on a review by two Omaha attorneys (Domina & Jorde, 2010), “trial, and particularly trial by jury, is the least-used dispute resolution methodology in America.” Even as the Federal Rules have formally preserved the right to a trial, they’ve also created the conditions in which litigants find it unnecessary and often counter-productive to exercise their right to a trial. Citing Emerson’s ‘build a better mousetrap’ adage, Professor Langbein concludes “The Federal Rules built a better mousetrap: a civil procedure centered on pretrial discovery. Litigants no longer go to trial because they no longer need to.”

Even as every legal organization imaginable has created committees and task forces aiming to save the American jury, the systemic factors that Professor Langbein documents seem destined to persist. That doesn’t, of course, mean that the civil jury will soon, or even eventually, go away. Trials will continue, but those that make the cut are likely to become more and more unusual: cases that are higher stakes and cases that carry some kind of atypical barrier that has made settlement difficult or impossible. And as the matters that go to trial become less representative of cases overall, they’re also less able to serve as examples for the preponderance of disputes that are bound for settlement.

So, that raises a practical question for the great majority of cases that settle out of court: What is the benchmark? The case will settle based on something, and hopefully it is neither an arbitrary point between demand and offer, nor the equally arbitrary point at which the parties simply reach exhaustion. Facing the decline of the conventional civil jury, a future for popular adjudication may lie in finding innovative ways to create that benchmark.

A Continuing Role for Popular Adjudication

Even for those cases that will involve no ultimate jury, there is still a role to be played by the broader notion of public judgment.

1. The Potential Jury as Benchmark

Relatively few cases involve an actual jury, but a far larger proportion still involve the role of a potential jury. This includes all cases in which one side or both are preserving their right to a jury as an option. Like a silent party to the negotiations between the plaintiffs and defendants, the perception of what a jury in the venue would do if it heard the case exerts a strong pull on strategic positioning, case assessment, and settlement offers. The diminishing supply of actual comparison verdicts coming out of the courts provides a reason for attorneys to turn to specialists, and consultants are likely to increasingly fill that role.

2. The Mock Jury as Test

Particularly when dealing with larger or more complex cases, it has become the “standard of care” for a mock trial to be conducted prior to settlement, providing an opportunity for specific assessment to serve instead of subjective judgment. Using three or more juries composed of randomly-recruited citizens from the venue, a mock trial  exercise provides a foundation for case risk assessment and often for a settlement offer.  Frequently when a project concludes, the mock jurors will ask, “Is it possible for you to let us know what happens when the real jury hears it?” The correct answer is always, “No, we aren’t going to contact you again,” but what I often want to say is, “In all likelihood, you were the real jury…or at least as real a jury as this case will ever see.” And, if you think about it, that isn’t necessarily a bad thing: Whether the state calls in actual jurors or we recruit mock jurors, the case still gets its day in ‘court,’ of sorts, and still benefits from the leveling influence of popular judgment.

3. The Expedited Jury as Reality

One example of the actual court system appearing to draw inspiration from the mock trial method is California’s relatively recent experiment with a simplified and shortened format designed to preserve the option of a formal jury for a class of cases.  In 2010, the state legislature passed the California Expedited Jury Trials Act, creating an option that parties could enter into through mutual agreement: A one-day trial with stipulated exhibits and evidence, no appeal or post-trial motions, a jury of 8 citizens with no alternates, and a binding result subject to a high-low agreement. While the model has, up to this point, been used mostly with lower value cases like automobile accidents, the early responses to the method have been quite positive. Users participating in a recent survey (Cheng, 2012) “were very satisfied with their experience, and lauded it for its ability to reduce time and monetary costs for their clients and themselves.” There is no reason that this model or something similar couldn’t be applied to larger cases, and also no reason that mediators shouldn’t simply adopt the approach as part of a private dispute resolution process. As we’ve suggested before, if what is preventing an early settlement is the existence of differing perceptions of what an actual jury would do, why not bring in a mock jury in order to serve as that additional source of information or reality check for the parties and the mediator?

Back in the intensive care ward, the patient – the American civil jury – still isn’t looking so good. The formal role played by average American citizens in resolving civil disputes, unique among countries, definitely had a good run. But now it seems to be swiftly shifting into another role, focusing on fewer and less typical cases, as well as alternate avenues of influence. As the broader dispute resolution system adapts, it appears cautiously possible that a meaningful role for popular judgment will survive.

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Other Posts on the Role of the Jury: 

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Cheng, Y. (2012). A Law and Economics Approach to the California Expedited Jury Trials Act. Legal Studies Honors Thesis. University of California, Berkeley. http://legalstudies.berkeley.edu/files/2012/06/Cecilia-Cheng-Sp12.pdf

Domina, D. A. & Jorde, B. E. (2010). Trial: The Real Alternative Dispute Resolution Method. Voir Dire, Fall/Winter. http://www.dominalaw.com

Langbein, J. H. (2012). The Disappearance of Civil Trial in the United States. 122 Yale Law Journal 522. http://yalelawjournal.org/the-yale-law-journal/article/the-disappearance-of-civil-trial-in-the-united-states/

Photo Credit: RembergMedialimages, Flickr Creative Commons

September 20, 2012

Realistically Compare Your Employment Fact Finders

By Dr. Ken Broda-Bahm 

Judge Juror Arb

Imagine a typical employment discrimination case, subject to all of the ambiguities of human motivation. To the plaintiff, it is a story of good if not exceptional work performance cut short by a decision to terminate based on race, gender, age or disability. To the defendant, it is a story of enforcing job expectations broadly on all employees, including those who happen to be in protected categories. Given that a biased motive is rarely declared, it generally needs to be inferred from the circumstances. That act of inferring can invoke many of the subtleties of the fact finder's world-view, attitudes, and bias. 

But the question is, who decides? The recent history of employment litigation is a history of shifting fact finders. In the early days of Title VII, it was judges. Then after the Civil Rights Act of 1991, the door was open for employment plaintiffs to seek verdicts and damages from juries. More recently, as employers have moved to mandatory arbitration clauses, the dominant fact finder has changed yet again. Some dimension of choice remains, particularly for defendants, and that choice is important. In this post, I take a look at the question from the defendant's point of view to share some of what we know on how judges, arbitrators, and juries compare in the context of employment cases. 

Initially, you might think that we can get that answer just through a simple statistical look at who wins most often in each venue. 

Isn't It Just a Matter of Statistics? 

After all, what is easier than looking at outcomes? And indeed, there have been many analyses over the years comparing results in different venues. Here are some representative comparisons.

First comparing judges versus juries, the Department of Justice's "Civil Trial Cases and Verdicts in Large Counties" provides the initial impression that judges are much better friends to employers than juries. According to this comparison, plaintiffs win nearly half the time in front of juries, but only a quarter of the time in front of judges. In addition, the jury tends to award three times the damages. 

Juries v judge

When we add arbitration to the mix, the data tend to show that arbitrators, perhaps predictably, are more like judges than juries. An analysis this year (Colvin & Pike, 2012) confirms the perception that, for the employer, arbitration is best and state courts are worst. 

Lit v arb

This is compelling data, but at the same time, it arguably leaves out the most important factor: case selection. A plaintiffs' attorneys who have a sympathetic case with the potential for a high verdict are unlikely to surrender their claim to a jury trial, and may even try to fight a mandatory arbitration clause. In addition, those cases on a litigation track have options for weeding out the cases with little or no merit (e.g., summary judgement), and extended schedules can create more opportunity and incentive for settlement. What that means is that the cases that do make it all the way to trial are different. By and large, they are probably much better cases with much more at stake. 

In that context, it is no surprise that cases in litigation would have a higher plaintiff win rate and higher median damages. That by itself does not mean that juries are per se worse for employers in comparable cases. To get to that question, we need to look at a few other perceived differentiators between juries, judges, and arbitrators. 

Should I Avoid Juries Because They're Too Obsessed with Fairness? 

The perception is that, compared to the legally-trained fact finder, juries are likely to approach the case first and foremost as a morality play on whether the employer was fair or not. There is some basis for believing that jurors are more likely to put ethics over the law. In our annual surveys, we have asked over the years the question, "When personal ethics and law conflict with one another, which should you follow?" Typically two-thirds of jurors will respond "the law" while one third will respond "personal ethics." When we asked that question of arbitrators in 2007, just 17 percent selected ethics, and when we asked it of federal judges in 2008, just 11 percent preferred ethics. 

So there is a greater tendency for juries to arrive at a case with a fairness orientation, and that can be magnified by the fact that nearly all jurors are bringing and applying their own experiences as employees and implicitly asking themselves questions like "would my boss have done that?" or "would I have taken the same actions as this employee?" It is a mistake, however, to see juries as the only ones focusing on fairness. When, in 2007, we ran a head-to-head comparision looking at arbitrators' and jurors' response to the same case, it was striking that both fact finders mixed fairness in with the law in evaluating the case. 

It is also a mistake to think that an emphasis on fairness only works to the employee's advantage. For example, in a brief focus group that we ran earlier this month, mock jurors responded to an age discrimination scenario by focusing on the company's right to focus on bottom line results. "The probability of there being some kind of discrimination is real," as one mock juror noted, "but if the company can prove his performance was not up to standards, that denies his right and puts me in the position where I support the company. Bottom line, businesses are in the business of making money, they have to be."

Should I Avoid Juries Because They're Out of Control on Damages? 

Another perception, augmented by the data above, is that juries are more attuned to deep pockets and more accepting of extreme damage claims once they reach a conclusion of liability. Certainly, anecdotes do support the conclusion that some juries can be awfully generous. But the claim that juries as a rule are more extreme than the individual legal decision makers (judges and arbitrators) fails to account for the moderating effect of group dynamics.

That is, the perception that juries give high damages is widespread, even among those who serve on juries. When we asked the jury-eligible population in 2007, 36 percent declared jury awards to be "excessively large," and an additional 23 percent felt they were "large." That left only a minority of jurors believing that awards are "about right" or "too small." That distribution nearly guarantees that, even after strikes, there will be some on the panel who are sensitive to exaggerated damages and will act as an anchor to bring damages down. 

For example, in our 2009 survey, we gave respondents a scenario in which we asked them to presume that a company was liable and acted out of greed, and even in that setting, fully a third felt that "high damages" were probably or definitely bad. 

Chart 34

There is also an important difference in what is considered "high." In our survey, we asked participants to describe an award of $10 million in an industrial accident case and 27 percent of juror-eligibles, versus just 5 percent of arbitrators considered that amount to be "excessively large." A majority of arbitrators, 53 percent, instead considered that amount to be "about right." That suggests that those who work in law may simply be desensitized to higher numbers and may be starting out the case with an elevated benchmark. 

And there is research to support that tendency. Looking at comparable automobile collision cases that ended up in either arbitration or jury trial Wittman (2003), found that the arbitrators awarded higher damages after controlling for differences within the cases themselves. Applying similar methods to a comparison of juries and judges, two other studies (Clermont & Eisenberg, 1991; Vidmar & Rice, 1992), found again that the judges awarded the higher damages in comparable cases. It is easier for a single decision maker to go to an extreme. If a juror is very liberal on damages, she will probably be checked by someone else on the jury who isn't. But if a judge or arbitrator is liberal on damages, he will be unchecked. This provides another good reason for providing an alternate anchor by providing your own damages estimate in most cases. 

Should I Avoid Juries Because They Have It in for Corporations? 

We always hear some gasps and nervous chuckles when we play one particular juror deliberation clip for a defense audience. "I hate large companies," the juror opines, "I absolutely despise them. I think they are what’s wrong with this country. But they are a necessary evil. Like, our government is Enron, Walmart, pharmaceutical companies. They've taken the American dream, smooshed it, drawn a picture of another one and they're mass selling it to everyone." That level of anti-corporate attitude is somewhat typical as we've written before

What is generally most surprising to the audiences is that such attitudes aren't unique to just a small segment of the population, like those manning the "occupy" barricades, but are widely shared. Over the last decade, for example, we have tracked agreement or disagreement with the statement, "If a company could benefit financially by lying, it's probable that it would do so," and have consistently found that eight in ten potential jurors will agree with that statement. When we asked that same question of judges, we didn't find eight out of ten…but we find nearly five in ten (45 percent) agreeing that corporations "probably" lie for money.

So, again, the pattern is that there are some important differences with the jury population, but they aren't necessarily as extreme as you might expect. Just as it is wise to address fairness as a dimension of your argument with all audiences, it is prudent to assume that there is a baseline level of anti-corporate bias that you face not just in addressing jurors, but when persuading arbitrators and judges as well. 

One practical implication of these attitudes, that applies in particular to employment cases, involves the burden of proof. During the employment focus group we ran earlier this month, I asked the group, "Who bears the burden of proof — the employee to prove they were discriminated against, or the company to prove they terminated for legitimate business reasons?" Half the panel got the right answer, but the other half responded that it should be the company, because "it was their choice" to terminate and because they can show "their common practices." As one mock juror noted, "I think it's the company's responsibility to show that [discrimination] could not be what happened." In other words, they have to rule it out. That may be legally incorrect, but there is a logic to it since the employee generally has less access to the reasons for the decision and the business is, after all, defending its own decision. In most employment cases, defendants are better off acting as though they have the burden of proof, and that applies even when the fact finder is an arbitrator or a judge. 

My point is not to suggest that one fact finder is necessarily better than another in all contexts. But the current level of migration to mandatory arbitration by employers reflects a belief that arbitrators are always better, and a closer look reveals that it isn't so simple. A focus on fairness and a susceptibility to bias can influence all decision makers, and there is at least some chance that the single decision maker is a greater risk than a jury that has to compromise. What is best is a situational analysis in each individual case rather than a blanket preference. 

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Other Posts on Employment Litigation: 

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U.S. Department of Justice (2002). Civil Trial Cases and Verdicts in Large Counties. 

Clermont, K.M. (1992). Trial by Jury or Judge: Transcending Empiricism. Cornell Law Faculty Pulbications. Paper 246. http://scholarship.law.cornell.edu/facpub/246

Colvin, A. & Pike, K. (2012). The Impact of Case and Arbitrator Characteristics on Employment Arbitration Outcomes. Paper presented at the annual meeting of the National Academy of Arbitrators, Minneapolis, MN. 

Vidmar, N. & Rice, J. (1992). Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals. Iowa Law Review 78. 

Wittman, D. (2003). Lay Juries, Professional Arbitrators, and the Arbitrator Selection Hypothesis. American Law and Economics Review 5. 

Image Credit: Jason Bullinger, Persuasion Strategies

September 12, 2011

No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They’re Neutral

By Dr. Ken Broda-Bahm –

Three heads 
Judges, arbitrators, mediators:  legally trained and neutral minds, without the juror's baggage of selective perception, predisposition, and bias, right?  Not really.  In the previous two posts on motivated thinking and instrumental argument, I wrote that an audience's reasoning and advocacy is driven by emotions and not just by logic.  While a jury's decision making and deliberations might be the acts most obviously implicated in these findings, the mental processes are by no means unique to juries.  The experience of going to law school and occupying a specific legal role does tend to refine legal understanding and decision making quality, but that doesn't provide a blanket exemption to human psychology and communications. 

Indeed, the experienced legal practitioner is more likely than the novice to rely on heuristics, those rules and routines that tend to simplify and systematize decision-making.  In some ways, that is what "expertise" means: an expanded reliance on heuristics.   Rather than making non-jury decision makers neutral and above the influence of human factors, these very heuristics serve to ingrain a decision maker's habits and preferences.  This post takes a look at some of the research on bias in non-jury legal audiences and shares some advice on addressing those factors.

The old saying that "where you sit determines where you stand" — or your role determines your attitude — is certainly true in the legal field.  One recent experiment (Glockner & Engel, 2010) showed that even when highly motivated to provide unbiased assessment, the act of assuming a legal role systematically introduces bias into judgments.   More specifically, research has looked into ways all three of the main non-jury audiences are biased.

Judges are Biased.  Previously, we've shown judge's can be reliably influenced by something as simple as lunch and break times, and that as the breaks become more distant and the judge's decision fatigue sets in, they find it easier to rely on the default judgment (a heuristic), in this case a decision to deny parole.   More recent research on courts in Israel (Shayo & Zussman, 2010) found that the ethnicity or group membership of judges has a measurable influence as well:  parties who were of the same group as the judge enjoyed an advantage ranging from 17 to 20 percent.  Judges also have policy preferences, and while judges are careful to note, especially in Supreme Court nomination hearings, that they are just applying the law and not making the law, those policy preferences can certainly creep into decisions.  As one current study notes (Malani, Farnsowrth & Guzior, 2011), when deciding cases that hinge on the meaning of a statue, the patterns that judges follow are difficult to explain without relying on the policy preferences of the judge. 

Arbitrators are Biased.  A recent study (Colvin, 2011) looked at American Arbitration Association reports in employment arbitration.  Beyond confirming that, in employment cases at least, arbitration does indeed result in shorter times to judgment, lower employee win rate (just 21 percent), and lower mean awards (just $36,000), than comparable cases in litigation before a judge or jury, the most interesting result is the so-called “repeat employer” effect.  You would think that a greater number of employees focusing on a single employer would tend to raise employee win rates and award amounts (via the bandwagon effect), but in fact the opposite is true.  Employers facing a larger number of claims have the silver lining of a lower employee win rate as well as a lower mean arbitration award level.  Part of the explanation for that, the author writes, is found in the greater resources and savvy of the more frequently targeted company (experience is a great teacher), but another significant effect stems from repeat experience with an employer and the same arbitrator.  When the same arbitrator hears several cases involving the same company, the arbitrator tends to develop more understanding and identification with the company, and that tends to improve its win rate.  

Mediators are Biased.  Of course, mediators are facilitators rather than decision makers, but bias can still exert an effect in more subtle ways.  In a recent review, Professor Carol Izumi (2010) looked at the question of mediator neutrality, citing a number of surveys showing that mediators find it tough to ignore "personal bias and evaluations of the worthiness of particular claims and disputants," and tend to try to direct the mediation process toward outcomes they find favorable.  Further research shows that the effects of gender, race, and ethnicity exert a greater influence in mediation than in other forms of adjudicated disputes, due to the informality of mediation, and the lack of a court's norms and symbols of fairness and impartiality.  As a result, female and minority parties tend to experience less favorable outcomes than others in the mediation process.

While some bias (for example, based on race and gender) is intolerable, other biases are simply part of perception and thought.  In the latter category, you could do a "search and replace" on the sections above substituting "human," for "biased" and be as accurate.  It isn't a criticism to acknowledge the bias inherent in a judgment role, but it is a critical factor to address.  When we trust an illusion of neutrality that is when we get the head-shaking decisions that just don't make sense.  To account for bias in your non-jury decision makers, I suggest four steps:

1.  Profile your judge, arbitrator or mediator so you can know as much as possible about their preferences, habits, beliefs, and attitudes.  It is always surprising to me that attorneys who now Google their jury pool until they know everything, are satisfied relying on anecdotes and courthouse gossip to assess their judges and other decision makers.  When good resources like Courtlink exist, and parallel sources for arbitrators and mediators are emerging, then there is no excuse for not getting the fullest possible profile of your target audience.

2.  Pick your audience, to the extent that the process allows you to.  In the case of judges, of course, you generally can't simply pick, especially since judges initially assess their own level of bias (McClellan, 2005), a process which flies in the face of what we know about unconscious or implicit bias.  In mediation and arbitration settings, selection is easier.  In AAA arbitrations, in fact, a process very comparable to voir dire allows you to submit questions to prospective arbitrators (see Administrative Conference rule R-9).  

3.  Position your case so that it is adapted to known biases and predispositions.  When you know that your judge's pet peeve is wasted time, then of course the biggest advantage of your motion is that it saves time.  When you know that your mediator has a strong concern for equity and not just contract language, then lead with the equities of your case. 

4.  Push back against any known biases that you need to change in order to win.  There are biases you can live with and biases you can't.  One mistake in all of this discussion of human perception and motivation is to treat biases as monolithic and immutable.  If that were true, then persuasion would be moot, and the entire legal process would be without foundation.  Thankfully it isn't.  People shift beliefs all the time.  No, someone isn't going to abandon a life-long belief just because you give them a few reasons to.  But with an individual who, like most of us, holds multiple and sometimes inconsistent predispositions, you can make the harmful ones less salient and the helpful ones more salient. 

It all comes down to strategy.  So when you're dealing with a non-jury audience, if you have the impulse to just put the facts and law together and stir, leaving out the ingredient of strategy, you're making a mistake.  Respect the subjectivity of every audience, adapting to it where you can, and changing it where you can't. 

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Other Posts in This Series: 

Related Posts:

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ResearchBlogging.org Colvin, A.J.S. (2011). An Empirical Study of Employment Arbitration: Case Outcomes and Processes Journal of Emperical Legal Studies, 8, 1-23 : 10.1111/j.1740-1461.2010.01200.x

Glockner, A.; Engel, C. (2010). Role Induced Bias in Court: An Experimental Analysis MPI Collective Goods Repring, n. 2010/37

Izumi, C. (2010). New Directions in ADR and Clinical Legal Education: Implicit Bias and the Illusion of Mediator Neutrality Washington University Journal of Law and Policy, 34 Unconscious Bias in Legal Interpretation

McClellan, F. (2011). Judicial Impartiality & Recusal: Reflections on the Vexing Issue of Racial Bias Temple Law Review, 78

Shayo, M. & Zussman, A. (2011). Judicial Ingroup Bias in the Shadow of Terrorism Quarterly Journal of Economics (August 5)

Photo Credit:  Flickr Creative Commons, Yardena 2009

April 4, 2011

Avoid Lockout: Address Judges and Arbitrators Persuasively

By: Dr. Kevin Boully –

Locked steel

Boully_Kevin_88_120

Lockout.  If you’re a sports fan or even a casual news surfer, you cannot escape word that America’s favorite sport – professional football – is in jeopardy.  Players and owners are at odds and this Wednesday, the National Football League Players Association will face off against the NFL and its owners in an injunction hearing before a Minneapolis Judge (for some flavor click here to see the NFLPA’s brief filed last week).  There is a real chance the 2011 NFL season will be disrupted. A few lawsuits (including one by former NFL players) have already been filed and there is talk of a similar dispute playing out later this year between professional basketball players and the National Basketball Association.  Continue reading

March 17, 2011

Know Your ‘God Terms’ and Your ‘Devil Terms’

By: Dr. Ken Broda-Bahm –

Angel and devil

T-shirt 1The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators.  But the way that we come up with a theme is a little more mysterious.  Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting of all case issues, good and bad.  Others see it as an act of divine inspiration, a ‘bolt from the blue’ that arrives unexplained from some part of our mind.  Someplace in between these two perspectives, I’d like to suggest one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case.  Continue reading

March 14, 2011

Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect

By: Dr. Ken Broda-Bahm –

Dominos
The role of a positive example in creating a “demonstration effect” has long been noted in the fields of political science and international relations, with one of the classic examples being the American Revolution that was closely followed by the French revolution.  We’re seeing it now on a near daily basis in the Middle East and North Africa.  From Egypt to Bahrain, Morocco, Yemen, Algeria and Libya, people who spent generations under autocratic rule are suddenly finding the will to mount massive demonstrations to challenge their respective regimes.  From a single successful example (Tunisia went first), the idea spread outward like a drop of ink in a glass of water.  One day, a revolution seems impossible, and the next day it has a chance: “if the Tunisians and Egyptians can throw off a dictator, then so can we!” and the dominoes fall.  So if you are an autocratic ruler, situated in the North of Africa or the Middle East, chances are you have some concerns about anything that could prompt the citizenry to follow that example.  Continue reading

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