By Dr. Ken Broda-Bahm:
Whether we’re reading the news, shopping, or participating in social media, we are swimming in “likes” these days. Electronic journalism, online retail, and sharing sites like LinkedIn or Facebook all give users an unprecedented ability to participate, broadcasting their preferences with a click of a button or a comment. But are we influenced by these strangers when we consume those views or products? Yes we are, according to a study (Muchnik, Aral, & Taylor, 2013) just out in the journal Science. There is a herding instinct that kicks in when we hear another’s opinion. It is a powerful but, not entirely simple, phenomena and it influences how we should gather and assess opinions in a group context like oral voir dire.
The study isn’t yet available online, but I was able to track down a hard copy and it does get a healthy ‘like’ (and a summary) in a recent Eurekalert. Three researchers with backgrounds in business and management looked at this idea of social influence in the context of an unnamed news and discussion site that allows thumbs-up or thumbs-down votes on individual comments. In a five-month experiment, the researchers manipulated these votes to see how that affected positive or negative opinions of the views themselves. They found support for three conclusions:
- One, the herding effect is real and people are heavily influenced by positive opinions expressed online. Adding “likes” to a message resulted in a 25 percent higher average rating from other viewers.
- Two, the tendency to follow the herd is much less pronounced when it comes to the influence of negative opinions. “People are more skeptical of negative social influence,” author Sinan Aral of MIT says. “They’re more likely to ‘correct’ a negative vote and give it a positive vote.”
- Three, it depends on the topic. Stories in “politics,” “culture and society,” and “business” saw signs of positive herding, while those in “economics,” “IT,” “general news,” and “fun” did not.
This post looks at how this social influence could play out in a setting like oral voir dire and shares some concrete ideas for facilitating this herding when it helps, and avoiding it when it hurts.
Account for Herding in Oral Voir Dire Design
The ideal setting for an untainted oral voir dire would be individual questioning with the rest of the venire out of earshot. That is often reserved for capital or very high profile cases though, so the alternative, that in some ways allows for better attitude measurement with less “social desireability bias,” would be the supplemental juror questionnaire. But when you have group voir dire as an alternative or a supplement to a survey, you need to be conscious of the affect of some views on other views. This effect is quantified in the study, and it appears to be most pronounced when applied to the kinds of topics likely to be discussed in oral voir dire: those touching on business, culture, society, and politics.
We refer to it as “sharing” an opinion, and it turns out it is just that: The opinion isn’t just heard and understood, it is somewhat more likely to be adopted by others in the group. That effect has some implications on how you select and design questions. For one thing, it underscores why you want to avoid a situation where an unstrikeably large number of people on the panel are sharing views that are negative toward your case. Based on your own estimations or your experience in pretrial research, you want to ask questions that will divide the group and create a good-for-you majority and a strikeable minority.
Magnify Favorable Views With Agreement
Priming the panel is not the first purpose of oral voir dire. That first purpose has to be to uncover negative opinions and use those as the basis for strikes or challenges for cause. Still, there is a theme-building function to voir dire and, at any rate, it is inevitable in a group questioning setting. This is where you can use the herding instinct to your advantage. Ask an open-ended question (“What do you think about at will employment?”), then when you hear a case-favorable view that you estimate is likely to be held by a majority ask, “who agrees?” Then to further magnify ask, “why?”
The research would say that when you do that, you are maximizing the chances for even more jurors to agree with you. Now you might think, “But, I don’t want to maximize those chances… If a potential juror hates me or the ideas I’m going to depend on in my case, I want to hear that instead of having the panelist just go along with the herd.” And indeed, there’s the rub. That is why it will nearly always be better to measure the attitude in a questionnaire as a check against this herding tendency. In oral voir dire, however, the art is to find a balance. Yes, you still want to identify those with negative views, so you don’t want the herding to be 100 percent. But generally, it won’t be. Particularly if you start out by explaining and showing the group that it is okay to have different views, you will have some holdouts that will mark themselves for a strike.
Still, when a juror makes a favorable comment and you see an opportunity to drive home a point, then don’t miss the chance to ask who agrees. When jurors see a view that is widely shared, it is more likely to serve as a benchmark.
Frame Poisonous Views as Disagreement
There will be some bad views expressed in oral voir dire and it is the most important point of voir dire to learn those views. Avoiding negatives for fear of poisoning the panel is a cure that is worse than the disease. It sets aside the prime function of voir dire based on an effect that is uncertain and can be remedied. At the same time, you don’t want the panel to become a kind of bias-school with panelists picking up attitudes and facts that turn them against your case. The key is how to handle those negative comments to prevent them from spiraling out of control. The point at which the negative view becomes the majority view is the point where you’re no longer learning about your strikes, but are instead showing the opposing side theirs.
One of the more intriguing findings of the study is that this herding is “asymmetric,” in the sense that negative views are less influential and more likely to be “corrected” by the majority. This suggests that any negative views are less likely to spiral into broad influence if they’re positioned as a disagreement rather than agreement. So the safest method of revealing negative views may be to pivot off of a positive answer and ask who disagrees. “Mrs. S. just shared her view that it should be okay to terminate someone for no reason as long as that is in the contract. Who disagrees with that?” If a few hands are raised, you will still learn about those who are the highest risk (to your employment defense in this case), but you’ll be doing that with a reduced chance of exaggerating the popularity of that view.
It is a common view among consultants that litigators simply shouldn’t worry about “poisoning the panel” with negative views. That feeling is well-intentioned as a response to attorneys who just want a feel-good discussion that does nothing to tell you who to strike. But it is simplistic to say that this social influence doesn’t exist. The reality of group questioning is that the answers do play a role in shaping opinions. The most dangerous negative opinion is still the one that is unexpressed in voir dire but shared liberally in deliberations. So avoidance is not an option. But tactical management of how your questions create good majorities and strikeable minorities is still essential, and that is where a little practical knowledge of how your panel is likely to herd can help.
Other Posts on Oral Voir Dire:
- Ban the Word “Anyone” From Your Oral Voir Dire
- Never Rely on Self-Diagnosis of Bias
- Practice the Pivot in Oral Voir Dire (Part Three): The Demonstration
Muchnik, L.; Aral, S., & Taylor, S. J. (9 August, 2013). Social Influence Bias: A Randomized Experiment. Science: 647-651.
Image Credit: opensourceway, Flickr Creative Commons