Tag Archives: voir dire

August 15, 2013

Beware the Herding Instinct in Opinion Formation

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: 


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

April 1, 2013

Practice the Pivot in Oral Voir Dire (Part Three): The Demonstration

By Dr. Ken Broda-Bahm: 

To supplement the written descriptions in the previous two entries, this post features a video demonstration designed to illustrate the approach to attorney-conducted oral voir dire that I’ve been writing about. Using a number of volunteers from my firm, I created this clip in order to show and discuss the on-your-feet decision making that goes into the task of pivoting off a panelist’s answer in order to divide the group based on higher and lower risk. As you’ll see, it’s an approach that asks you to maintain, and to give up, a little bit of control.

When an attorney is eliciting evidence through testimony, especially in cross but also in direct, the bottom line is that questioning means control. In voir dire, however, the maxim is different: Questioning means learning. It means learning about the potential sources of bias that would justify a strike or cause challenge. And it also means learning about the thoughts and themes that the panelists themselves have on their minds. Good voir dire requires both learning about risk and laying out themes, and doing so in a way that makes those in the panel relaxed enough to reveal their biases. 

In the first post in this series, I shared a model for structuring the questions. In the second post, I discussed its application in trickier situations and shared a list of good oral voir dire habits. In this final post, all that’s left is to show what it looks like. 

Here’s the demonstration (and if the embed below doesn’t play, just go to this link in order to watch it on YouTube).   


The Series: 


Other Posts on Voir Dire: 


Photo Credit: Jason Bullinger, Edited by David Carter, Persuasion Strategies


March 28, 2013

Practice the Pivot in Oral Voir Dire (Part Two): Good Habits and Tricky Situations

By Dr. Ken Broda-Bahm: 

If, by the end of oral voir dire, you’ve broken the ice, earned some credibility and rapport, learned the basis for at least a handful of cause challenges and strikes, and spent the balance of your time eliciting themes from jurors that help your case, then you’ve done your job. In part one of this series, I shared one approach for balancing these goals that I call the “pivot” approach. The basic idea is that, instead of simply opening up the forum to let jurors voice thoughts good and bad, or asking leading questions that just prompt jurors to agree or disagree with your words, you start with an open-ended question, then pivot off a juror’s answer in order to divide the group so as to know who is higher risk and who is a safe bet for sharing helpful themes. In theory, it comes down to loosely following the six steps discussed in part one. But in practice, the situation is not always smooth or simple. That is because people aren’t fully predictable (if they were, voir dire would be less necessary). 

Because the large group discussions in oral voir dire aren’t fully predictable and individual comments can sometimes go in unexpected directions, there is a need to follow a plan, but also to stay loose in order to deal with surprises. The most important thing to be doing in voir dire is to be carefully listening to what the candidates are saying. And when those comments take you off script and into a tricky situation, what saves you is the ability to fall back on some good habits. In this post, I step beyond the basic model to add a discussion of what to do in trickier situations, and also share my own list of good habits in questioning. 

One Tricky Situation: How Do You Protect Your ‘Good Minority’ Jurors?

It’s good to have friends, especially when they’re in the jury box. But sometimes a particular panelist’s experience or attitude can end up being so friendly that your main concern is that they’re just offering themselves up for a strike by the other side. We call these “good minority” jurors in the sense that they’re good for you, but the views they hold are likely to be held by just a minority of potential jurors, and it is that minority status that makes them strikeable. For example, if they had their way, most defendants would probably prefer a full panel who believes there are too many lawsuits. And when that view is held by as many as nine in ten people, anyone expressing that view is within a safe and unstrikeable majority. On the other hand, if a plaintiff’s attorney asks that question and one or two panelists exclaim that America’s problem is that there aren’t enough lawsuits, that person is good, and probably too good for the plaintiff since anyone expressing that view will be exactly the person the defense will want to strike, and they won’t be protected by being in the majority.

It’s for that reason that an important goal in oral voir dire is to protect your good minority jurors. If the other side is doing their job, of course, at least some of them will be discovered, but there’s no reason to help them by shining a spotlight on these favorable panelists during your own questioning. To return to the example used in part one of this series, when an employment defense attorney is seeking to voir dire on attitudes toward “at will” employment, the majority viewpoint will probably be that an employer’s ability to terminate without having cause is generally common and legal. But someone who goes beyond that to say “a company has no obligation to answer when the employee asks why,” has probably just crossed the line from safe majority to strikeable minority. 

When that happens to one of your own “too favorable” potential jurors, there are two options. One, if you think they’ve opened themselves up to a potential cause challenge by the other side, you can quickly rehabilitate them (“But you would use the law and the judge’s instructions to decide what the company’s obligations are, wouldn’t you?”). Or two, in the more likely case that the panelist has simply flagged themselves for a strike by opposing counsel, you need to take a different tack. One thing you shouldn’t do is just ask how many agree. If a couple more raise their hands, then you’ve just handed more friends to your adversary’s strike list. Instead, it is necessary to tweak the question a bit before you pivot off of it. In this case, the venire member who believes “a company has no obligation to answer when employees ask why they’re terminated,” has expressed what is most likely a minority viewpoint. So in order to divide the group in a meaningful way (a way that highlights your potential strikes while keeping those likely to say good things about you in a safe majority), you’ll want to adjust the question. For example:

Thanks, but when a company does give a reason, would you expect that the reason would have to be for some kind of failure or misconduct on the employee’s part, or could it be for the company’s own business reasons? How many of you agree that terminations generally shouldn’t happen unless the employee does something wrong? And how many of you disagree? Why? 

So at this point, you probably have a few who would usually expect terminations to only happen when it is the employee’s fault (those are the high-risk jurors for your employment defense) and you have a larger group who feel that businesses can have lots of reasons for termination and don’t always need to show the employee did something wrong. After noting the first group, the second group is the one you want to follow up with in order to get them speaking the themes of your case. 

The same principle applies when someone expresses a “bad majority” opinion (like “companies don’t always appreciate their employee’s contribution”) because those who would disagree would be that same “good minority” that the other side wants to strike. So in this case as well, you would want to adjust before you divide the group. 

Six Good Habits that Maximize Usefulness and Minimize Danger in Voir Dire

I’ll end with some ‘rules of the road’ that will typically serve the questioner well in a variety of situations. 

1. Model Self-Disclosure

Think about it as a potential juror might. It isn’t a very natural situation to be in a room full of strangers and being asked to disclose personal experiences and attitudes. And it doesn’t help to know that the entire purpose of the exercise is to disqualify you from doing your civic duty. It doesn’t come naturally. For that reason, it helps for counsel to disclose something of their own in order to set the tone. For example, “I’m from Cleveland…and I hate, hate, hate the Baltimore Ravens football team, because they used to be the Cleveland Browns before they betrayed the city. So, if I were being considered as a juror for a case involving the Ravens, I would not be the right juror for that case.” 

2. Get Those Hands Up

You generally won’t have time to ask each important question to each individual. And even if you did have time, there are often strategic reasons for eliciting fewer statements from the higher risk jurors (see part one of this series). For that reason, you’ll often want a show of hands in response to a question. Since its typically been a long time since your panelists have been in school, they won’t be used to raising their hands: Ask for a show of hands, and some people will just quickly or ambiguously move their hand. In order to allow yourself or your assistants to properly track the responses of each individual, you will want those hands up high, and left there for a moment. To encourage them to do that, show them what to do. As you ask, “How many of you…” raise your own hand high and straight, and keep it up until you are done. 

3. Force a Choice

Frequently, you can pivot off an individual panelist’s answer and easily divide the group by asking “who agrees” and “who disagrees.” But sometimes, it will help to structure the choice more than that. My colleague, Karen Lisko, has pioneered this method of creating questions that will reliably split a group in a way that reveals the strike candidates while still keeping a majority on your side. For example, “Some feel that in order to face a termination, an employee really needs to have done something wrong or failed in some way. Others would say that terminations can be fair even if they’re just for the company’s own reasons. If you had to say which of those two views you are closer to, how many would be closer to the first? And how many would be closer to the second? Why?” When you’re not likely to get a clear enough juror response to pivot off, the structured response provides more predictability and safety. 

4. Hear From Everyone

This isn’t always possible once you consider the time allowed, the panel size, and the judge’s process, but whenever it is possible, make sure that you spend time really hearing from each panelist: not just a raised hand, but an open-ended comment from everyone. That will help you get to know them and get a glimpse of their analytical style. In addition, when you are getting responses through raised hands, you need to make sure that everyone is responding one way or the other. That is a reason for softening the options (e.g., “How many are closer to…” or “How many are more likely to…“), for giving both options (that is, after asking how many agree, don’t assume that everyone else must disagree, ask), and for following up on non-responses (“Mr. Smith, I noticed you didn’t raise your hand…”). 

5. Appreciate Every Opinion (But Only Repeat the Good Ones)

When a potential juror tells you they don’t like companies like your client or you, and shares hostile attitudes on any number of broad issues that will affect your case, the proper answer is “thank you.” That’s because all opinions are good opinions (good to know, at least). Because you want to encourage disclosure, it helps to be both verbally (yes, thank you) and nonverbally (positive facial expressions, head-nodding) affirming all contributions. At the same time, when you follow up (Why do you feel that way? Please tell me more about that? Can you think of any examples?) it should be mostly from individuals who are on your side of an issue. Remember, note the unfavorable jurors, but talk to the more favorable jurors, especially when they’re on a safe and strike-proof majority. 

6. Lead Only When You Don’t Need to Learn

Think about why you ask leading quesitons in cross: because you want to control the response. You only want to do that in a few cases in oral voir dire. One of those situations would be when you are supporting or staving off a cause challenge. Another situation is when you are wrapping up a topic and you want to leave a final helpful impression on that subject. When you lead, you are interested in getting support for a conclusion you’ve already reached (e.g., this juror should or should not be dismissed for cause), and you’re less interested in actually learning something new from the panelist. 

Of course, it would be possible to keep going, but those are the best habits that go along with the pivot appraoch. For general rules, there is probably no better comprehensive list than Mark Bennett’s 16 Simple Rules for Better Jury Selection. Through a combination of a plan that works with your style, and some good commonsense practices, jury selection should be a rich and engaging opportunity to learn and determine the qualities of those who will judge your case. 


The Series: 


Other Posts on Jury Selection: 


Photo Credit: Pen Volkmann, Persuasion Strategies

March 25, 2013

Practice the Pivot in Oral Voir Dire (Part One): The Basic Model

By Dr. Ken Broda-Bahm: 

When voir dire goes well, it creates a balance between the goals of spotting the high-risk jurors and safely drawing themes from the more favorable jurors. At the same time, the questioning process should build rapport and feel natural to both the attorney and the panelists. When voir dire goes wrong, it is often in one of two ways. On the one hand, some attorneys will ask only tightly controlled questions (yes/no, or cross-examination style) that are designed to lead and minimize the risk that prospective jurors will taint the panel by sharing opinions and experiences that run counter to your messages in the case. On the other hand, some attorneys will simply ask jurors what they think on topics relating to the case, giving equal voice to those whose views would help and those whose views would harm your message. The first approach errs in learning too little: constraining the discovery of relevant information on those who will judge your case. But the second approach errs in potentially learning too much: creating the real risk that unfavorable jurors will not only be discovered, but given a soapbox as well.

The right balance is to identify the bad jurors, but talk to the good jurors. In other words, your questions should create a context in which less favorable jurors are comfortable admitting to a bias (often, by simply raising a hand to agree or disagree with a statement made by another panelist), while eliciting the greater balance of thematic statements from favorable jurors when they are in a safe and strike-proof majority. Even as you try to limit the soapbox opportunities offered to less favorable jurors, you also need to ensure that the panelists believe that you are genuinely interested in hearing all they have to say. 

In this post, the first of a three-part series, I will be introducing an approach to question structure that I call the “pivot.” The basic approach is to ask open-ended questions (so panelists don’t feel hemmed in or led), but then strategically pivoting off those answers in order to focus discussion in ways that reveal the higher- risk jurors while talking to the lower-risk jurors. In this post I’ll describe the basic model, in the next post I’ll discuss some adaptions to make when the conditions get tricky, and in the final post I’ll share a short video demonstrating the process. 

Like a good witness examination, your voir dire should be neither off-the-cuff, nor unalterably scripted. It is essential to have a plan, but equally essential to stay loose enough that you can react to what you’re learning and choose follow-up questions that aren’t in your notes. Unlike good witness examination, the goal is to genuinely discover what the target is thinking. That is where the pivot comes in: You need to control and focus discussion while still showing genuine interest in what they have to say. In exercising this kind of soft control, the fundamentals are to avoid overexposing favorable jurors, or overcommunicating with unfavorable jurors. 

To do that, my model breaks down into a series of steps. It helps to keep the broad structure in mind so you mentally know where you are in the process instead of just marching through a list of questions. Using a running example of voir dire in an employment defense, let’s look at the sequence you would follow within each major topic. 

1. The Warm Up

When taking a deposition or examining a witness in trial, you have a right to expect that the witness is ready to answer as of the first question. But you can’t expect that with your potential jurors. Because you are expecting them to not just answer questions, but feel comfortable enough to share their own attitudes and experiences, they need to be warmed up, or in psychological terms, “primed” to think about and share their feelings. As you introduce each topic, start with a softball that brings the issue to mind. You can pose the question to the whole group or you can select a potential juror that you haven’t heard from yet. 

Attorney: How many of you have had a job where someone else is deciding if you’re hired and fired — In other words, not the boss at the top, and not your own boss either? By a show of hands, who has or has had that job? Okay, that is pretty much everyone. Mr. M, what was the most recent job like that for you? Ms. J, how about you? 

 2. The Open-Ended

Once the topic has been introduced and panelists have drawn on their own experiences and thoughts on the subject, it is time to ask an open-ended question. The goal is to get a potential juror to express an opinion, but you don’t need to (and won’t have time to) ask each one individually. Initially, you can chose someone you haven’t heard from, or someone at random.  As you learn more about the likely opinions they hold, however, you can select panelists who are more likely to give a helpful response. If time permits, ask each member of the panel at least one open-ended question. If a potential juror is neutral or has no real opinion they can articulate, simply select another member of the panel and ask the same question.  

 Attorney: How many of you have heard of something called “at will” employment, or the idea that an employer or an employee can end the employment relationship at any time, with or without cause, just by giving notice? What do you think about that idea? Do you think it is fair or unfair? 

3. The Pivot

This step is obviously the key to the approach. Instead of asking each of the venire members in sequence what they think, the trick is to turn an individual answer into a group answer by pivoting off the first panelist’s response. It can be as simple as asking, “how many of you agree?” or “how many of you disagree?” and calling for a show of hands. Keep two questions in mind as you transition from the prior answer: One, “Does the response help or hurt my case?” and two, “Is the response likely to be a majority or a minority point of view?” I’ll cover this more fully in part two of this series, but there will be some situations where you’ll want to recast the question a bit as you pivot in order to reduce the chances of putting a spotlight on potential jurors that are favorable to you, but in the minority on the panel (as doing that just helps the other side identify their strikes). Ultimately, you want to pivot with the goal of dividing the group and having a safe and unstrikeable majority on your side of the question. For now, let’s focus on the simplest illustration in response to the open-ended question above. 

Mr. A:  “At will” employment is just the reality these days, it’s inevitable.

Attorney: Why do you think so, Mr. A?

Mr. A: Companies need to be flexible, so sometimes they just need to reduce their work force, and sometimes it just isn’t working out.

Attorney: Thank you, so you think “at will” employment is something companies need? By a show of hands, who disagrees with Mr. A? And who agrees

Note that in response to that question, most groups will divide themselves so that a majority ends up supporting “at will” employment, at least in theory. If it breaks that way, you can take note of who the worse potential jurors are (those who disagreed with Mr. A), while also noting the better potential jurors within the safe majority (those who agree). 

4. The Low Risk Follow-up 

There is always some risk when you follow up – since you never truly know what a potential juror will say. But after the group has been divided based on a question like the one above, it is decidedly more predictable to follow up with the group that is likely to be lower risk and more favorable to your side of the case. Remember the two questions to keep in mind when you hear the open-ended response: Is it helpful or harmful to my side, and is it likely to be a majority or a minority point of view? Your expected answers to those questions will guide how you follow up. When a potential juror responds with a helpful majority opinion, you will want to amplify that response by spreading the theme to others on the panel, asking for more on that opinion from the same jurors and others. When jurors respond with a harmful minority opinion, flip the statement by asking about the opposite opinion.  

Attorney: Ms. S, you raised your hand indicating that you agree that “at will” employment is necessary. Why do you think so? Tell me more about that. 

Ms. S: Its never nice to let someone go, but the business has its first obligation to the customer. 

Attorney: Thank you. Mr. D, you also agreed with Mr. A. Can you think of any examples where a business would need that kind of flexibility? 

Mr. D: Sure, a company may need to close a location or they may need to address a productivity problem. Bottom line, they need to build the best team they can, and that’s their right. 

Attorney: Thank you. 

5. The Wrap

As a final step before you leave a topic, it is often necessary to wrap things up by getting a commitment, correcting any misimpressions that your question may have left, or countering any bad messages that may have come out of juror comments. Note that the wrap up can be one of the few times where you will want to ask a leading question. And in that case, you lead for the same reason you lead in cross: because your goal is more focused on making a point than on gaining information.

Attorney: Thank you all. So knowing that there are different views on whether “at will” employment is fair, does anyone doubt that in many cases, it is perfectly legal?

Following that series of questions during a typical employment defense voir dire can be expected to fulfill all of the goals. You build rapport by demonstrating interest in what the panelists think and by asking open-ended questions. You learn about the higher risk jurors by pivoting off a response in order to divide the group. And you allow panelists to reinforce your case’s positive themes by following up with the lower-risk members of the venire. Of course, in the real world the questioning is not always that clean. I’ll follow up with a discussion of some of the difficulties in part two of this series and provide a video of a demonstration in part three. 

There are naturally many approaches to oral voir dire, and the pivot model is just one approach.  Whatever approach you choose, your goals in conducting oral voir dire should be to build rapport, learn about high-risk attitudes, and get jurors talking in ways that reinforce your themes. 


The Series: 


Other Posts on Oral Voir Dire: 


Image Credit: Jason Bullinger, Persuasion Strategies

October 29, 2012

Appeal to Your Juror’s “Temporary Identity”

By Dr. Ken Broda-Bahm: 


It is Halloween time again, and everyone who is a kid or young enough to party like a kid, is preparing their temporary identity for the night: a pirate, a witch, a vampire. This year, apparently, the trending looks are less traditional, including “Angry Birds” and costumes for this year’s angriest bird of all, Big Bird, are flying off the shelves. Of course, the idea of temporary identity, of being something else for a short period of time, isn’t limited to October 31st. It is something that sets the stage for human communication in every context. In different situations, we adopt different personas. There is overlap, of course, but when you think about it, there are probably some pretty clear distinctions between the “work-you,” “friends-you,” and “family-you.” 

There is also a “juror-you.” That is, there are differences between the identity a juror assumes during trial and the identities that person may hold in any of their other life contexts. While we might think of attitudes and personalities as something fixed and immutable — something that a person “has” — it is more accurate to see them as highly changeable and sensitive to the situation — something that a person “does,” and does differently in different contexts. We’ve raised the issue previously of jurors being in different “decisional mindsets” at different stages in the trial. In this post, I’d like to take that point a little further and discuss ways to get jurors into a preferred role or identity during trial. I’ll be choosing two early moments in trial, voir dire and opening statement, where a juror’s understanding of her role can be critical, and providing suggested language on ways to encourage and adapt to a juror’s temporary identity at that stage. 

Identity Matters

I got to thinking about the importance of a juror’s temporary identify after reading a recent piece by Maggie Koerth-Baker in The New York Times Magazine. In that essay, “The Mind of a Flip-Flopper,” she explores the idea of changing minds, initially in the political “Romney-Obama” sense of revising political positions, but then ranges into a diverse body of research on how we decide and redecide. Much of it, she writes, has to do with flexibility in identities: “Our identities, of course, are also stories we tell ourselves about ourselves. In some cases — if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping.” Drawing a parallel to juries, she also draws from research on an unusual setting for deliberation known as the Oregon Citizens Initiative Review. As part of the state’s “Healthy Democracy” program, Oregon addresses popular ballot initiatives by pulling together “a panel of randomly-selected and demographically-balanced voters,” who then hear from the campaigns for and against the measure prior to drafting a “Citizen’s Statement” that is published in the voters’ guide: a kind of mini-verdict from an unbiased group that has looked closely at the measure.

If that sounds a little like a jury, it is meant to. Like a jury, it can sometimes lead to decisions one wouldn’t expect from looking at popular attitudes alone. Koerth-Baker quotes Penn State professor John Gastil who shared the example of Oregon Measure 73 focusing on mandatory sentencing. To those who gave it only a little thought — the majority of the population —  the idea of strict and fixed criminal sentences held widespread appeal. To the panel, though, the negative consequences far outweighed the positives and the panel voted 21 to 3 to oppose it. According to Gastil, that finding played an important role: “You got a shift from two-thirds in favor to two-thirds against just by reading the report.” 

The point is that a working group can end up assuming an identity where “facts suddenly matter.” A jury is such a group. Rather than simply importing and applying the baseline attitudes they brought in the courthouse door, those individuals who are selected become “jurors” and that role can mark them internally as surely as the sticky badge marks them externally. The trick for litigators is to adapt to and cultivate the best aspects of that special identity as you prepare and present your case. 

Create and Speak to a Preferred Juror Identity…

Addressing the juror in their appropriate role matters in all phases of trial, but let me speak more specifically to two of the early stages. 

During Voir Dire

During voir dire, especially attorney-conducted oral voir dire, attorneys have an early opportunity to put a frame around the venire members and help them see their activity and their statements in an appropriate light. That role is not to be “auditioning” for a part, and it is neither to be in a contest with the court or counsel. Rather, the identity you most want panelists to embrace is the identity of one who is openly and honestly sharing views in a context that makes those views critically important.  

It is also not, at least from a juror’s perspective, about admitting to something called “bias.” By that name, bias is a bad thing that no panelist is comfortable admitting. Instead, voir dire is about the kinds of knowledge, attitudes and experiences that everyone has. 

Here is one example of how counsel might appeal to a juror’s temporary identity in voir dire: 

My part in this process requires that I ask you some questions about your experiences and your views on several issues. It isn’t my goal to single you out or to embarrass you, but our jury trial system is based on the idea that cases need to be decided by people who have no strong attitudes at the start of the case that would influence how they understand and use the evidence. We all go through life forming opinions based on our experiences.That is normal. But it means that not every juror is right for every case. For example, I live in Denver and I’m a big football fan, and a big John Elway fan. So I wouldn’t be the right kind of juror for a case against the Denver Broncos. There isn’t anything wrong with that, it just wouldn’t be the case for me.

By framing the questions in that fashion, you can help a potential juror understand that admitting to a strongly-held attitude doesn’t mean failing some kind of test, but instead means helping a worthwhile process. 

During Opening Statement

After jury selection, the next opportunity to encourage jurors to embrace a particular identity is opening statement. That is typically the time when attorneys talk about how grateful they and their clients are that the jurors are sacrificing their time, how important jury service is, and how it is second only to military service in the good it does the country. That can be an important message, but the lesson for counsel is that a little goes a long way, and it is often a message that sounds best coming from a judge. Too much from an attorney, and it sounds like flattery and ingratiation. 

The better message is to reinforce and empower jurors’ identity. Tell them what they are there for. At the stage of opening statement, they are there to hear what the story is about. But they don’t want to be in the passive role of an audience, or just consumers of information. And they also aren’t there to be a judge of which attorney has the better persuasive skills. Instead, the opening is an ideal time to tell jurors that they are there in order to be active, to be investigators of the facts, to try and find answers. One way to introduce that role might be as follows:

As both sides begin this case, we are given the opportunity to speak to you directly. That is an opportunity we won’t have while we are presenting the evidence. In fact, we won’t have it again until closing argument. We aren’t given this opportunity to provide an opening statement so that we can argue to you. We aren’t given it so that we can tell you a story. And we aren’t given it so that we can show off our persuasive skills. No, we are given this precious opportunity in order to help you in your role. To assist you in working with the testimony you are about to hear, to help you to be investigators. Because that is what you are. Not passive listeners, not critics, but active determiners of what is and is not factual in this case. To help you in that investigation, I want to share what I expect the evidence to show in this case. 

That message can precede an opening that is strong, and an opening that does indeed tell a story while staying on the right side of the “argumentativeness” line. The most important theme is that the jury is in control: They’re the ones reaching their own conclusions based on the evidence and facts, the arguments, and their own process. 

Rather than being a mask or anything false, this temporary identity we are asking jurors to assume is something that helps your case as long as you take care in shaping it and in strategically appealing to it. If jurors see the verdict as their own unique product, they are empowered. If they see trial as merely a persuasive contest between two sides, however, they can easily see it as all trick and no treat.


Other Posts on Mindset and Persuasion: 


Photo Credit: Mags20_eb, Flickr Creative Commons

July 6, 2012

Don’t “Narrow Bracket” Your Choices in Jury Selection

By Dr. Ken Broda-Bahm: 

Imagine you are in a grocery store standing in the cereal aisle in front of a dizzying variety of choices. You pick up one box, and being the healthy person that you are, you check the nutritional information on the label. Then you pick up another box. The second cereal has a little less sugar. So, into the cart it goes and you’re off feeling like you’ve made the wise and responsible choice. But realistically, you have no idea how your cereal compares to all of the many dozens of cereals still on the shelf. Instead, you engaged in a restricted comparison and felt as though your comparison was broader than it actually was. The same phenomena occurs in nearly all shopping situations, and in most other contexts of human evaluation as well. This includes jury selection. A successful selection depends on seeing how an individual panelist stacks up against the rest of the panel, but there is a strong tendency to default to the individualized comparisons of “this potential juror is better than that one.”

The social psychologists call the process “narrow bracketing,” or the tendency to simplify decision making by relying on artificially restricted choices, while failing to account for the effect of the restricted subset in your ultimate decision. This post takes a look at a recent study focusing on interviews of 9,323 MBA applicants (Simonshohn & Gino, May 2012) and provides some recommendations on broadening your bracketing in order to make your jury selection decisions as rational as possible. 

We Narrow the Brackets When Making Choices

Confirming a human tendency to base choices on smaller subsets, the study published in Psychological Science looks at MBA interviews in which candidates arrived in daily sets. The data over the years shows that if you were one of those interviewees, evaluators based your ratings on the arbitrary factor of who else was being interviewed that same day. Instead of being compared to the full panel of applicants, you were compared to those in the subset that came before and after you. Specifically, there was a reluctance to evaluate applicants in too similar a fashion (e.g., I rated the last person as a ‘4’ … so this one is a ‘5’), creating more variety in the evaluations than a more ‘sequentially unbiased’ rating of the applicants would warrant. We might also expect a contrast effect, suggesting that it is better to be the average applicant on a day of otherwise poor interviewees, than it is to be the average applicant on a day of otherwise great interviewees. 

But We Shouldn’t Do That During Jury Selection

When you are tied to daily sets of school applicants, it may be impractical or even impossible to step outside of one’s subset in order to reach a fair assessment. When choosing your strikes from a single venire, however, you do have the opportunity to make sure you are comparing each potential juror to all potential jurors. Despite that, many informal practices in jury selection can contribute to a choice that is narrower than it should be. Here are three pieces of advice for avoiding that.  

1. Ask the Key Questions of the Entire Panel

At its best, attorney-conducted voir dire should feel relaxed and unthreatening, and should encourage jurors to open up. Following that line of advice, some attorneys’ preference is to conduct voir dire in what I call a “serial interview” mode. In other words, you talk to one juror, then move on and talk to another, and so on. In the end, the attorney has a confident choice to strike the panelist, for example, who said “Products aren’t tested enough” in a product defense. But the problem I often see in that method is that this is the only panelist who specifically commented on the topic — we have no idea what all the other panelists would have said if they had been asked about product testing. Some might have even more extreme views. Instead of basing your strikes on the subset that happened to volunteer their views on a specific topic, you should consciously escape that narrowed bracket by asking the key questions of the entire panel: “If you had to choose between two options, who would say that there is too much product testing…and who would say that there is not enough?” After dividing the group, you can then follow up individually and conversationally with those least likely to identify themselves as strikes for the other side. 

2. Wherever Possible, Use Scoring

Experienced trial lawyers and consultants often have a gut feeling about a potential juror. There is nothing wrong with that – it is both human and useful. But the problem with relying chiefly on gut is that, in many to most cases, that “bad feeling” that motivates a strike can stem from a single feature or from a single specific comment the panelist made. On the flip side of the coin, the jury candidate who has said seven bad things for you, and then added one good thing, might be irrationally rehabilitated if what is left ringing in counsel’s ears is the one good thing. To avoid the problem of giving disproportionate influence to one factor, we always encourage using some kind of scoring system on jurors. Identify the variables that create higher risk (e.g., in a products defense that might be anti-corporate bias, high expectations for product testing, and low consumer responsibility), and assign a numeric value to responses. This helps you account for the full spectrum of what you’ve learned about a panelist and allows you to compare each individual to the rest of the panel. The downside to scoring, if you allow it to happen, is a false precision. You should remember that in a loose and subjective scoring system, someone with a “24” isn’t necessarily worse than someone with a “23,” but the score itself serves as a useful starting point. For example, when someone you like nonetheless has a high-risk score, it is a reason to look again and to check where those numbers are coming from. Without some sort of benchmark, you risk giving too much weight to impulse and to the last piece of information that you learned.

3. Adapt Your Scoring Method to the Amount of Time You Have

Sometimes you have time for a sophisticated scoring system, but many times you don’t. It depends on the judge’s process and the amount of time allocated for voir dire. But there is always time for some sort of systematic approach. In the most rushed and constrained selection situation, for example, I use a five-point method. Everyone starts at “3,” and throughout questioning by attorneys and/or the judge, you are continuously revising those scores: If you learn negative things about the potential juror, they move toward “5,” and if you learn positive things, they move toward “1.” Then when it is time to strike, you start with your attention on the “5’s.” 

When you have more time and more information, use a more comprehensive method. For example, we’ve long followed the practice of identifying the variables of interest, then deciding which questions contribute to which variable, then assigning a weight to a given answer. For example, if anti-corporate bias is the variable, then a lack of management experience might be one question that contributes, and that might be, subjectively, a “3” on a scale of “1” to “10.” Sometimes those weights are based on mock trial or survey data, sometimes they are just based on our experience and judgment. When factored all together using a program like Jury Box, you can end up with a remarkably precise and robust measure of a potential juror’s risk. Again, the score isn’t carved in stone, and you should never make your strikes blindly based on the numbers, but it is a very powerful place to start. 

Once, for example, I worked on a week long death penalty defense jury selection which included a comprehensive juror questionnaire and individualized voir dire. Because the great majority of removals were for cause, and because we had to decide whether to strike on the spot if the cause challenge failed, we continually needed to know not only how good or bad a particular panelist was, but how they stacked up against those waiting in the hall. To answer that question, we continually recalculated scores as the pool shrank so that we were always able to know for each candidate whether they were better or worse than the average of what was coming up. 

Of course, it is possible to exaggerate the importance of jury selection: The case hasn’t ended with the empaneling of the jury, but it has started. And it has started with a unique set of unalterable experiences and attitudes that can be nearly impossible to change in a short trial. For that reason, you want to be as systematic and thorough as the circumstances allow you to be. Instead of a narrow bracket, you need a broad mind. 


Other Posts on Jury Selection Methodology: 


Simonsohn, U. & Francesca, G. (May, 2012). Daily Horizons: Evidence of Narrow Bracketing in Judgment from 10 Years of MBA-Admission Interviews. Psychological Science (Forthcoming). URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2070623

Photo Credit: Kokopinto, Flickr Creative Commons


April 30, 2012

Jury Selection: Probe But Don’t Embarrass

By Dr. Ken Broda-Bahm: 


In a new law journal article, University of Kansas law professor Melanie Wilson asks us to consider a situation in which a stranger approaches us on the street and politely asks us whether we've ever been a victim of sexual assault or abuse, whether we've ever been investigated by the police, what we think about abortion, what our sexual orientation is, what we watch on television, and what political groups we support. Portraying voir dire as a similarly unexpected intrusion on jurors' private lives, the professor advocates a fundamental change to the selection process: a "juror peremptory strike" that would allow any member of a venire to opt out of invasive questioning by simply removing themselves from the case.

The motive behind the article in the current Utah Law Review (Wilson, 2012) is a good one: Jurors will not respect a process that they believe invades their privacy. But the proposed solution of jurors striking themselves could discourage legitimate questions about bias and create an easy opt out for potential jurors. The analogy notwithstanding, potential jurors are not strangers accosted on the street, they're participants in a legal role that is one of the duties of citizenship. Subject to a judge's review, members of the venire should answer questions that are reasonably calculated to reveal possible bias in the case. There are also many ways to ensure that voir dire serves its purpose without being an unwelcome intrusion. Questionnaires and in camera voir dire are ways to balance the parties' interests with the panelist's privacy. There are ways to question which are sensitive and effective, and there are ways to question which are clumsy and insulting. One implication of the article is that it helps to have someone on the team who specializes, not just in the law or in the art of advocacy, but in the task of eliciting important attitudes and experiences: a social scientist. 

The Exposed Venire? 

Commenting on the article to the Wichita Eagle, the KU professor and associate dean conveys a sense of rapidly eroding juror privacy. "It’s ironic that most people have fewer rights when they’re in the courtroom than they had before they went inside," she notes. "We're getting more and more jurors that aren't disclosing information or withholding it. If we put enough pressure on these ordinary folks, they're almost bound to lie." While juror honesty is a real concern, there are means of respecting privacy short of giving jurors the ability to remove themselves from service on a case. "There is no reason to be insensitive to their rights while also compelling truthful answers about their ability to serve without undue prejudice or bias," argues trial consultant Charli Morris. "This is not an 'us' versus 'them' proposition: The work in our courtrooms is serious business and it should be fair to everyone in the process, including criminal defendants." 

Wilson's argument is that even when answers are provided on a questionnaire or delivered in sequestered voir dire, those answers are still potentially part of the public record, and jurors should not enjoy fewer rights than a criminal defendant when it comes to a refusal to answer questions. As much as litigators on both sides may not favor Wilson's solution, it springs from a real concern. If the jury trial is to make a comeback, then those of us who work in that system need to be sensitive to any factor that increases juror cynicism about the process, and intrusive or clumsy questioning may be one such factor.  

Short of Wilson's solution of a juror peremptory strike, though, there are several steps that attorneys conducting voir dire should take in order to preserve its value while minimizing the chances of offense. 

How Do You Get What You Need While Respecting Privacy?

1. Select Questions Carefully. Question selection ought to begin with the critical issue of whether it is directly related to the case. There are some standard questions, for example, which I've typically found to be of little value: "What bumper stickers if any are on your car?" or "What television programs do you tend to watch?" Yes, the responses to those kinds of questions can sometimes give a little insight into the type of person they are, but less often is there a clear idea of how that information matters to your case. Instead, to the juror, questions like that can feel like an irrelevant fishing expedition, because that is often what they are. When a question focuses on an issue with more obvious relevance to a legal issue they'll be deciding (e.g., "Do you believe that false claims of sexual harassment are common or uncommon?") then the panelists are most likely to appreciate your reason for asking. In voir dire, you should engage in targeted and selective digging, not a wholesale excavation. 

2. Use a Privacy-Based Rationale for a Supplemental Questionnaire. One of the best reasons for using a written questionnaire as part of voir dire is that it leads to greater honesty (Chang & Krosnick, 2010). Potential jurors are more likely to disclose relevant attitudes and experiences and are less likely to clothe their responses in "social desirability bias" when they're providing those answers in writing instead of delivering them orally in open court. When your case touches on very sensitive issues – for example a sexual harassment suit – jurors will be far more likely to provide relevant information on the form. While judges who want to streamline voir dire are often unsympathetic to an attorney's wish to simply gather more information, they tend to be more responsive to a request based on consideration for jurors.

3. Allow a Privacy Condition. Wilson's article notes some high profile cases where juror questionnaire responses associated with names have become part of the public record, but there is also a strong legal argument for keeping that information private where there isn't a compelling public need for it. In any event, responses delivered only to the judge and the parties are more private than responses delivered in front of other jurors in open court. When using a questionnaire or conducting voir dire, be sure to include an instruction that jurors may request the opportunity to provide a response in a more private setting if the answer would touch on information that is sensitive or embarrassing. 

4. Conduct a Mock Voir Dire. One challenge in handling sensitive topics in voir dire can also come down to attorney style. The setting in which most lawyers are used to asking questions is deposition, and in a deposition the approach to asking awkward questions is often something like, "I know that this might be embarrassing, and I apologize for that, …but here goes." While necessity is the driver during discovery, in voir dire the approach requires attention to more than the record. Litigators need not only tact but a knowledge of what leads to a comfortable and honest response. On that score, it is helpful to rely on someone who studies public opinion, and not just the law. We will also generally conduct a mock voir dire in order to try the questions out first on a volunteer audience. When we're done, we're not only able to gauge the usefulness of the level of information obtained, but we are also able to ask the volunteers themselves, "Were there any areas of questioning that made you uncomfortable?  Were there any topics that led you to wonder why the lawyer was asking?" 

Ultimately the goal is to balance the litigant's right to necessary information with a potential juror's expectation of privacy. The answer is probably not to allow the panelist to end the process whenever they choose. Instead, the answer is to commit ourselves to sensitive and effective questioning. 


Other Posts on Juror Disclosure: 


ResearchBlogging.org Melanie D. Wilson (2012). Juror Privacy in the Sixth Amendment Balance Utah Law Review (April 3)



Photo Credit: Opensourceway, Flickr Creative Commons

April 19, 2012

Take a Lesson from the John Edwards Trial: With Sensitive Facts at the Heart of Your Case, Aim for a Desensitized Jury

By Dr. Ken Broda-Bahm: 

The case of The United States versus John Edwards has everything:  politics, sex, life, and death. The former vice-presidential and presidential candidate acquired a mistress and fathered a child during the campaign, behind the back of his cancer-stricken wife, then called upon a couple of key supporters to pay vast sums of undocumented money in order to hide mother and child from the eyes of the media. Those of us who have read The Politician, a tell-all account by former aid Andrew Young, have been waiting for the other shoe to drop, and now it has. Edwards faces trial in federal court this week in North Carolina. While many of the former Senator’s constituents might want him tried for reckless political judgment, infidelity, dishonesty, and just for being a cad, he is actually being tried for campaign finance law violations. He seems to have no strong case on the cad issue, though he probably has a reasonable shot at the campaign finance defense. 

But the critical question is which will be important to the jury. The court has been in the process of winnowing down a pool of 185 potential jurors to a panel of 40 today, so that on Monday morning, the prosecution and Defense can exercise strikes to impanel 12 before starting opening statements. With a story like this, you might think that politics or morality would drive jury selection. But a realistic view of the challenges faced by this defense suggests that one other factor is far more important: desensitization. In other words, without knowing the minds of those working on the case, what the Defense should be looking for are those who aren’t particularly shocked, mortified, disturbed, or surprised by the story. If you can’t expect jurors who’ll be favorable, then the next best thing is to select jurors who’ll be numb. To anyone who faces the harsh knowledge that their case, at least in part, involves the defense of the indefensible, this concept of desensitization is a vital tool. 

In its early coverage of the trial, the media and some commentators may be missing the mark on what matters for jury selection. Focusing on the role of political affiliation, for example, the News & Observer asked Valerie Hans whether the parties should prefer Democrats or Republicans. “I am not sure I know who would be a good juror in this case for either side,” the Cornell law professor replied, “This might be a case where the Republicans assumed everything all along, but there are Democrats who feel betrayed.” The New York Post similarly asked a consultant who the defense might want, and Kenneth Pangborn replied, “I’d want to look for a young guy with swagger, a chick magnet, with hair” on the theory that similarity would breed sympathy. We’ve often found that the opposite is true, and that similarity can breed contempt because of the decision makers’ desire to distance themselves from a bad outcome:  “I’d never let myself get into that mess.” I think I’d side with consultant Marshall Hennington, also quoted in the New York Post article, that in this case, “its a little too much to ask them to be sympathetic to your case.” One thing that seems reliable is that if Edwards wins, it won’t be because the jury agrees with his politics, identifies with him, or supports what he did. It will be because jurors were able to look beyond all of that to apply a narrow version of campaign finance law and a high burden of proof. 

The same dynamic can apply in all kinds of cases. When your case includes core facts that are likely to smell bad even after the application of your best cologne, you need to face the hard question:  How do I select my decision makers and try my case in a way that doesn’t allow these bad facts to take over? I have two recommendations.  

Select With an Eye Toward Desensitization

What the Edwards team should be focusing on is not the issue of approval or disapproval of Edwards and his actions, but the degree of disapproval and especially the feeling behind it. The questions in their arsenal should be along these lines:  

  • How surprised or unsurprised were you to learn about about the claims at issue in this case?
  • How common or uncommon do you feel it is for people (politicians, husbands, etc.) to act in this way? 
  • How typical or atypical would you see it if you learned that others had acted similarly? 

Those questions would be fine-tuned, of course, but the key is to target and strike those who are most highly sensitized to the events and their underlying ethical issues. Highly sensitized jurors will find the back story distracting, while desensitized jurors, while still disapproving, are more likely to be able to focus on the law. The same principle applies in other litigation contexts. For example, if a company has been dishonest in its financial reporting, then it might want to be judged by a panel who considers this dishonesty to be “business as usual,” rather than something highly shocking and surprising. 

Then Make Your Case With an Effort to Desensitize Further 

When your case includes some ugly facts, the natural impulse is to avoid them and downplay them. The impulse is understandable, but generally wrong. As we’ve noted before, “steering into the skid” by acknowledging and even embracing your greatest case weakness is often the better strategy. Desensitization can play an important role, and repetition and emphasis on a negative fact can actually be an advantage. Take for example, the 1992 trial of the four Los Angeles police officers for the beating of Rodney King. The video of the event was played so often before and during trial that it was described as “wallpaper.” That may have actually helped the defense in the criminal trial by transforming a video that was shocking on first viewing into something that became progressively less shocking with repeated viewings. 

In John Edwards’ case, the Defense should probably begin opening statement with a pointed list of everything that the politician did wrong. Set it on the table, acknowledge it, and demonstrate that you understand jurors’ feelings about it. Pointing out the elephant in the room helps in letting jurors know what to do with that elephant, and helps them put the case in perspective:  The trial is not about all of that, it is about the meaning and the detail of campaign finance law. A strong admission at the start can desensitize jurors and drain away any remaining anger or disgust they might feel toward the Defendant. That helps them focus on the law and their role. 

Those who are cynical about the role of consultants and psychology in the legal process might point to this advice as an example of what is wrong with the system. After all, if we’re choosing desensitized jurors, and emphasizing desensitization in the message, then isn’t that bamboozling and distracting the fact finders? No, I’d argue that it is doing the opposite. Trials are supposed to be decided, not on sensation, but on facts and law. In the Edwards case the proper focus isn’t on politics, infidelity, or even dishonesty per se, it is on the much narrower question of whether money to hide an illegitimate child counts as a “campaign expense.” Really, that’s it. As the Defense has pointed out, “there are obvious noncampaign-related reasons for friends of Mr. Edwards to want to shield the affair to protect his family and to assist Ms. Hunter during her pregnancy.” The central difficulty of the prosecution is to paint this intensely private and secretive expense as part of a national campaign, and many feel that prosecutors have overplayed their hand in these charges. But for jurors to focus on that, they need to focus on the charges and not on the broad story, and that is where it helps to have a little desensitization in the hopes that it puts the focus back where it is supposed to be. 


Other Posts on Overcoming Bias: 


Photo Credit:  JohnEdwards2008, Flickr Creative Commons. 


April 16, 2012

Complex Case? Beware of “Low Effort Thinkers”

By Dr. Ken BrodaBahm

For once, a social science concept that comes with an easy to understand label! “Low effort thinking” refers to a mental approach or habit that serves as a short-cut in lieu of a more systematic or careful analysis. In the spirit of full disclosure, though, the concept is sometimes dressed up in the fancier name of “heuristics” (it is a job protection for us social scientists not to make the ideas too clear). In a courtroom, though, low effort thinking can play a very clear role. Relying on a stereotype, for example, requires less effort than analyzing the specific case. The juror who doesn’t delve into details and relies instead on a belief that “big companies are dishonest” is engaged in low effort thinking. It can be a boon if you represent the side that benefits more from these short-cuts. But more often, and particularly in the complicated case, low effort thinking is a barrier between your jury and a full understanding of your case.  

So where do we find these low effort thinkers? According to a study released last month (Eidelman et al., 2012), the answer is political: Those engaged in low effort thinking are more likely to report conservative political views. Now, before any right-leaning readers get their dander up, its important to note the direction of the relationship. The researchers did not test conservatives and discover low effort thinking. Instead, they did the reverse: They created circumstances designed to “disengage effortful, deliberative thought” — for example through instructions, time pressure, manipulations to cognitive load, and even alcohol impairment — and found that under these circumstances, the study participants tended to favor and express more conservative attitudes. “Political conservatism,” the authors conclude, “may be a process consequence of low effort thought.”

So when your case requires high effort thought, is it wise to apply a political litmus test?  As much as that would be simple, I’m afraid that would itself constitute low effort thought (as would the whole strain of jury selection based on demographics). Striking simply on the basis of politics can also be impractical in the courtroom since party affiliation and voting behavior can be factors that you don’t know and are unable to ask. Better to target the condition of fostering low effort thinking itself.  

The Legal Risks of Low Effort Thinking

The gist of the Eidelman study is to point out that when individuals are in circumstances that encourage easy and quick thinking, they prefer more simplistic and formulaic opinions. So the question for litigators is, “what circumstances in trial lead jurors to short-cut thinking?” The complexity of the case itself can be a problem. The law, the facts, and the entire process is complicated to jurors, and lawyers can often overestimate both the jurors’ ability and motivation to understand the case. 

After a mistrial in a recent New York ballot fraud case, one of the deadlocked jurors commented, “It was too much,” referring to the volume and complexity of counts, “and made it less likely we could all agree. If they do it again, they may want to think about that.” It is only natural for legal cases to be complex, and oversimplifying can be as much a problem as overcomplicating:  A jury won’t forgive you for omitting important detail or for condescending. Necessary complexity obviously needs to be part of the case. But in that context, the challenge is to identify the potential juror who is just looking for an easy route to a quick conclusion. For some cases – more often for defendants I think, but also for plaintiffs – you need to gear your selection process in a way that finds and favors those who are willing to set aside the quick and easy answer, and to instead roll up their sleeves and dig into the facts.  

Voir Dire for a Potential Juror’s “Need for Cognition” 

Need for cognition (Cacioppo & Petty, 1982) is the opposite of low effort thinking. It targets “the tendency for an individual to engage in and enjoy thinking.” Lawyers might like to think that should include everyone, but there are pretty big differences within the population. Some people like to work through an issue, while others like the simplicity and the order of a snap judgment. Those in the gallery who are carrying mystery novels or crossword and sudoku puzzles may well have a higher than average need for cognition. Or drawing from the Eidelman study, we could think that those with conservative bumper stickers might be lower in that department. Occupation and education might also tell you something about the individual juror’s experience and approach to detail. However, it is always more direct and reliable if you can actually go after the attitude itself.

Thankfully, there is a widely used and validated Need for Cognition Scale. It is an 18-item measure, but here are ten agree/disagree items drawn from the scale that I’ve included in juror questionnaires when facing a particularly complicated case: 

  1. I would prefer complex to simple problems.
  2. I like to have the responsibility of handling a situation that requires a lot of thinking.
  3. I try to anticipate and avoid situations where there is likely a chance I will have to think in depth.
  4. I prefer to think about small, daily projects to long-term ones.
  5. I like tasks that require little thought once I’ve learned them.
  6. I really enjoy a task that involves coming up with new solutions to problems.
  7. Learning new ways to think doesn’t excite me very much.
  8. I would prefer a task that is intellectual, difficult, and important to one that is somewhat important, but does not require much thought.
  9. I feel relief rather than satisfaction after completing a task that required a lot of mental effort.
  10. I usually end up deliberating about issues even when they do not affect me personally. 

When using these items to target low effort thinkers, you want to focus strikes on those who disagree with 1, 2, 6, 8, and 10 and agree with the rest. Assessing your pool though a scale like this isn’t necessarily “low effort” but it can be very effective in helping you shape your panel. 


Other Posts on Juror Comprehension: 


ResearchBlogging.org Eidelman, S., Crandall, C., Goodman, J., & Blanchar, J. (2012). Low-Effort Thought Promotes Political Conservatism Personality and Social Psychology Bulletin DOI: 10.1177/0146167212439213



Photo Credit: hslo, Flickr Creative Commons (Auguste Rodin’s The Thinker at the Musée Rodin in Paris)


March 5, 2012

Voir Dire at the Intersection of Your Case and Their Life: For Energy Litigation, that Means Gas Prices

By Dr. Ken BrodaBahm

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It is a reliable maxim that your voir dire should target the experiences of your panel that bear most closely on your case, because that will be the source of the most relevant attitudes.  That seems obvious, but I find that litigators often focus on a level that is more specific to the case and more distant from common experience:  for example, asking in a construction case what they think about “design/build contracts,” instead of asking what they think of the guy who comes to fix their deck.  With the recent almost-trial in the BP gulf spill litigation, along with increasing attention to rising gas prices, this maxim reminds us of an important area for voir dire in oil, gas, and other energy cases.  Generally, your case will have little to nothing to do with the price of gas, but that is still the way that “big oil” intersects with the common life experiences of your panel. 

Jurors can act as though the prices they pay are set using a large dial that is either on the President’s desk (during campaign season) or in the “big oil” headquarters — you know, the common office that they all share.  That may be a wee bit of an exaggeration, but having watched a great many hours of mock jurors deliberating on energy cases, it isn’t too far off the mark.  The idea that the market sets prices, influenced by events like the recent conflict with Iran, takes quite a bit of explanation.  But, true or false, that perception of control plays an important role in determining how jurors view the power and the responsibility of the company in a variety of contexts.  This post looks at gas pricing as an illustration of daily life’s influence on litigation attitudes and provides a recommended series of questions for oral voir dire on the topic. 

What Do Jurors Conclude From Gas Prices? 

The President gave a speech a couple of days ago in New Hampshire in which he gamely tried to convince people that he doesn’t set gas prices, and also stressed that there are no magic bullet solutions on fuel prices from either industry or government.  Still, perhaps as part of the Republican candidates’ search for an issue, other than jobs and contraception, gas prices have dominated the discussion leading up to tomorrow’s Super Tuesday primaries.  Though these attitudes rise to the top whenever there is a geopolitical or seasonal price increase, the concern over industry power is always there.  Usually, a legal case involving an energy company is sufficient to cue those attitudes. 

The attitudes we most often see are: 

  • Gas prices are too high and corporations and governments don’t understand the strain this places on average people.
  • Gas prices are too high due to greed.  They are consciously set by some entity just to make more money. 
  • Even when obvious events like a hurricane or an international crisis might explain the price of fuel, companies are still presumed to be taking advantage of events in order to pile on the profit.
  • All are guilty, with few distinctions being made between big, mid-sized, and small energy companies.  

Potential jurors with these attitudes can easily apply them to issues that extend far beyond pricing.  For example, a company committed to that kind of greed is more likely to break a contract, renege on a royalty, apply lax safety standards, and allow environmental contamination to persist.  For that reason, in many cases it will be a good idea to voir dire on attitudes toward gas prices as a way of easily accessing their deeper attitudes on the power of the companies themselves.  The following is one example of how to broach the subject in attorney-conduct oral voir dire on behalf of an energy company.  

Sample Voir Dire

My client is not Exxon or BP or Shell, but it is a big company that finds, extracts, and sells petroleum products.  It is what some people might call “Big Oil.”  So with gas prices where they are, I have some questions about how you might view an oil and gas company.

How many of you have paid attention to gas prices over the past few months?  (This is just a warm- up question, expect most to raise their hands). 

What is your reaction to gas prices?  Why do you think prices are high?  (This open-ended question might elicit some of the more specific themes below, allowing you to bridge off of a panelist-supplied comment).

People may be closer to one of two different points of view on the honesty and responsibility of big oil and gas companies.  Some people would be closer to the view that oil and gas businesses are more likely than other companies to be dishonest or irresponsible.  Other people would disagree, believing that while any business can be irresponsible, oil and gas companies are not necessarily better or worse than any other company.  Knowing that you may be somewhere in between, which of the two views is closer to your own?  (This question is designed to divide the group and create a strikeable minority of those who are a greater risk). 

How many of you would be closer to the view that oil and gas companies are more likely than other companies to be dishonest or irresponsible?  (Note, but don’t follow up:  These are your strike candidates).

And how many of you would be closer to the view that oil and gas companies are not necessarily better or worse than any other company?  (As long as these panelists are more than a strikeable number, it is safe to follow up). 

Mr. X, why would you say that?

Mrs. Y, do you agree with that?

Let me ask some additional questions on oil and gas prices.  

How do you believe that oil, natural gas, or gasoline prices are determined?  (Again, the open-ended question might allow you to follow up naturally on a panelist’s answer). 

People tend to believe that they are either set by companies acting together, or that they are determined through supply and demand and other market forces.  How many of you are more likely to say that prices are simply set by the companies?  (Note, but don’t follow up:  These are your strike candidates).

And how many of you are more likely to say that they are determined through supply, demand and other market forces?   (Again, as long as there is an unstrikeable number responding, it is safe to follow up with, why do you say that? or how do you know?)

Is anyone here so opposed to oil and gas companies that it would affect your consideration of this case which is between an individual and an oil company?  What effect would it have?  How difficult would it be for you to set aside these views on oil and gas companies? 


Other Posts on Energy Litigation: 


Photo Credit:  bitmask, Flickr Creative Commons

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