Best practices in case research - part 2 of 2
Understanding how jurors would value your matter
In the first part of this topic, we provided a primer on juror psychology and introduced the first three factors affecting juror case evaluations. In the final part of this topic, we continue the factors affecting juror case evaluations and discuss the importance of research in evaluating a case from the jury’s perspective.
Key Factors Affecting Juror Case Evaluations (continued)
Our research shows repeatedly that non-verbal communication plays the most significant role in determining ratings of witness credibility, which is vitally important because witness credibility is the primary factor driving jurors’ decisions to support one party or another. Because the foreign environment and process of a lawsuit confuses jurors, they often rely on their intuitive process of decision-making, which greatly impacts their decision to accept or reject information. Whether jurors accept or reject information often depends upon whether they deem a witness credible. Credibility involves a complex interplay of other attitudinal dispositions such as professionalism, emotional poise, confidence, knowledge, honesty, likeability, and genuineness. When jurors observe a defendant whose demeanor instills trust, it becomes far more difficult for them to believe that what the plaintiff is claiming is true. However, if that defendant witness’s demeanor on the stand appears disinterested, self-serving, frightened, or angry, it can actually shift the burden of proof onto the defense because jurors find themselves thinking, “I can see him doing exactly what the plaintiff said he did.”
For witnesses, testifying in either a deposition or at trial creates one of the greatest psychological and communication challenges they have ever encountered. Because of the challenging nature of attorney’s questioning, a witness must apply forced systematic cognition to properly evaluate and respond to the questions asked to him or her—a process which is quite different than everyday conversations. In addition to managing the psychological and communication process, witnesses must also manage the emotional stresses related to the case and attorney manipulation techniques (e.g., anger, shock, repeating issues, silent pauses, requesting assistance/understanding) commonly found during questioning that may cause the witness to lose focus. The emotional state of a witness, the initial impression a witness makes, and opposing counsel’s typical questioning tactics can all impact whether jurors deem witnesses credible.
Trial outcomes often hinge on how jurors receive and react to key demonstratives and exhibits. In our research we have seen graphic photos have no impact on a jury and we have also seen them drastically elevate the damages awarded. In one case, jurors initially believed the plaintiff, a young widowed mother, would eventually marry again and go on to live a happy life, which during deliberations resulted in lower awards for lost future earnings. After deliberating, however, jurors viewed the photos of the plaintiff’s deceased husband immediately after the accident and reported whether the images impacted their damage awards. Remarkably, damage awards more than tripled. When jurors explained why, it wasn’t the graphic nature of the photos that disturbed them. They cited one photo in particular of his face, which appeared angelic and as if he were sleeping rather than deceased. As one juror said, “His wife saw these photos, right? She will never get over that. Never. She will need therapy the rest of her life, and I can’t ever see her being happy ever again.”
Requests for large damages often offend jurors if either gross negligence is not apparent or the plaintiff is seen as sharing some culpability. Jurors see themselves as having a duty to make moral decisions, and few want to see a plaintiff enriched as a result of their own carelessness or misconduct. If jurors sense that the plaintiff chose to sue out of greed rather than out of a desire to be made whole, or to protect others, they can come to the view that the most wrongful act in the case was the filing of the lawsuit.
The issue of damages is of course quite complex, but we wish to note that jurors do not simply throw out numbers; instead, they discuss and develop a rationale for their awards. In a recent case involving two plaintiffs, attorneys and the claim adjuster refused to believe that jurors would award the young ambulatory plaintiff more than they would award for the life-sustaining costs to the other plaintiff with paraplegia. Jurors noted that the ambulatory individual requires an even greater level of care and attention precisely because she could move around and accidentally encounter dangerous situations. In our view it is critical to identify the various arguments jurors construct when pushing for higher and lower damages. Insight into their thinking is essential not only when valuing the case, but also at trial.
Claims adjusters and attorneys regularly apply values to cases taking place throughout the country, but in some cases, the venire location plays a particularly important role because of local industry and priming factors. If a suit potentially impacts a local industry that significantly supports employment in a venire, jurors are often reluctant to award large damages against this industry for fear of hurting friends or families who may have connections to that industry. However, if the suit occurs in a venire unconnected to a local industry, then jurors are much more willing to punish and offer large damages.
During the Deep Water Horizon Oil case, mock jurors in the gulf coast states offered much lower damages than jurors on the East and West coasts. When queried about the lower damages, jurors in southern states noted the need to repair the harm done but not hurt the oil industry because of friends and family members connected to the industry. On the East and West coast, jurors specifically noted the need to “punish” the oil and gas industry for its failures. Similarly, jurors on the East coast in New York, New Jersey and Connecticut, voiced little anger about Wall Street’s connection to the Great Recession, while jurors in other parts of the country proved much more willing to punish businesses connected to banking, finance, and investments. Considering how a local industry impacts a venire or the distance from a venire can play a critical role in jurors’ willingness to offer large damages.
In addition to local industry impacting a venire, the frequency of a particular issue, the number of comparable cases, or the number of plaintiffs can all impact the culpability jurors ascribe to defendants. When plaintiffs advertise heavily about the potential misconduct related to a practice or hospital, or when the news media provides skewed coverage of a local issue, the defendants often face a substantial burden in overcoming the prejudices created by the plaintiffs. Trial consultants call these juror prejudices the “priming factor,” because various sources have primed jurors to view a case or issue in a specific light. Because these beliefs have been generated prior to or because of a lawsuit, jurors already hold a belief about the issue and also subsequently reduce the credibility of defendants because they view them as trying to avoid the “truth.” The priming factor can powerfully hamstring a defendant. Evaluating whether the media or the plaintiffs have been priming jurors is a vital step to considering whether jurors may already be inclined to offer large damages.
We pride ourselves on accommodating our clients’ needs, and it is not uncommon for clients to call or meet for lunch and simply chat about a case because they do not have the resources for research but would like a strategic assessment of their case. As discussed, when evaluating a case from a jury perspective, our focus is on identifying and evaluating the case narratives jurors are most likely to construct from the fact pattern. Traditional mock trials involving juror deliberations can be particularly useful in this endeavor, but they are not always necessary and in fact are often not realistic, especially when engaging in very early case valuation. A rule of thumb we follow is that if it is far easier to imagine a simple pro-opposition narrative than it is to construct one for your own case, you may be facing an uphill battle.
Thinking about a case from a juror’s perspective can be immensely valuable, but if questions remain, some form of research employing mock jurors should be considered. Even low budget research can still be useful to expose unanticipated case vulnerabilities, value the case, and inform settlement analyses.
Online research is increasingly cost effective and offers an excellent opportunity to gain basic juror feedback on a case that can identify case vulnerabilities. Unfortunately, they lack the realism of a live mock trial, and while informative for existing valuation methods, they are not in and of themselves predictive of trial outcomes. Issues-based focus groups can narrow in on specific case issues or key witnesses and can also be cost effective because they reduce counsel’s involvement. However, they lack a juror deliberative process, which is essential for the higher levels of predictive validity. Simulative mock trials provide the highest reliable prediction rate because a “judge” instructs jurors that the exercise is a step in the settlement process, and the research simulates the courtroom experience in both its structure and the content of attorney presentations. The downside of course, is cost.
We encourage using the results of research not only for valuation, or to strengthen a case for trial, but also for mediation and settlement. Roger Fisher’s "Getting to Yes" specifically notes the importance of “objective data” for early settlement/mediation purposes. Data from online research or live mock trials presented by a litigation consultant with research experience can offer mediators “objective data” to push opposing counsel toward settlement. The benefits associated with research far outweigh an errant case valuation.
These posts have been dedicated to case valuation, but that is only part of the value in conducting trial research. Often our goal is not to predict whether we will win rather to learn how to win. In other words, is there a path to victory? If not, what is our best-case scenario, and how do we work toward that path? A recent case experience illustrates the point: We were retained on a case involving a widowed plaintiff whose husband had been horribly burned in a natural gas explosion while attempting to re- light the pilot light on their furnace. The deceased lingered in the hospital for a month, going through five full body debridement treatments before eventually passing away. The case was at great risk as there had been a series of bad depositions of both management and service providers from the defendant energy company, with many glaring inconsistencies, and dangerous omissions. The case was evaluated as highly unlikely of a defense verdict, but plaintiff would not settle. At mock trial, deliberations were brief.
When polled, every juror said the defense had never been at risk for of a finding of liability. What happened? During the research exercise, mock jurors had keyed in on several photographs of the pilot relay from plaintiffs’ furnace. They noted that several of the screw heads had been stripped out. As one juror said, “That looks like it’s been opened up and not by a professional.” From that simple insight the trial team developed a completely new strategy, narrative, and themes wherein the theory became that the plaintiff had serviced their own unit and was therefore personally responsible for the explosion. The case was reworked and retested. Within the new narrative, juror evaluations of the deposition testimony from the service technicians that had previously been some form of, “All those guys are lying” became, “Those guys didn’t do anything wrong and are just scared of being blamed.” When the case narrative changes, so too does the case valuation. Utilizing research to discover a new narrative that will result in a defense verdict is of course not always possible. What we do know is that thinking through the case from a juror perspective and gathering the best quality feedback your resources allow will increase the accuracy of your valuation methodology.
The Role of Cognitive Fatigue on Witness Performance