Identifying the plaintiff juror: part 1 of 2
A psychological analysis
The amount of pre-trial effort, preparation, and thought that litigators devote to jury selection typically pales in comparison to the amount devoted to other trial preparation activities. Yet, the importance of having the right – and avoiding the wrong – people in the jury box is difficult to overestimate. One or two intractable jurors who are adversely predisposed can nullify millions in expenses and thousands of hours of work devoted to preparing for trial.
Repeated observations from mock trials and actual jury panels reveal commonalities in psychological characteristics among plaintiff jurors that are robust and persist across case types and venues throughout the country. Identification of these general traits and commonalities can assist defense trial counsel in spotting those who would be desirable jurors and those who would be undesirable. This knowledge will be helpful during jury selection in most types of civil trials.
The optimal strategy to prepare for trial is to design research to investigate particular experiences, lifestyles, and other specific characteristics associated with verdict preferences. Nonetheless, awareness of general personality and temperament characteristics associated with a plaintiff's verdict can aid defense counsel when more explicit indicators are vague, controvertible, or unavailable. This inquiry therefore addresses the general questions of "What are plaintiff jurors like? What are they made of? How are they different?" After we consider the traits of plaintiff jurors that help answer these questions, techniques for inferring such traits in the courtroom environment are considered.
Personality psychology investigates the stable individual differences that account for consistency in different situations. At the most fundamental level, the characteristics of the plaintiff juror may be the same as basic personality traits that differentiate this juror from others. Reviews of databases for mock trials and actual post-trial interviews have indicated the following personality constructs or traits as "markers" for the plaintiff juror.
· Cynicism. A generalized tendency to view the world as sinister, oppressive, or malevolent.
· Vulnerability. A characteristic associated with heightened sensitivity, for example, sensitivity to rejection.
· Arousability. A predisposition toward nervousness, distractibility, jitters, hysteria, mania, and other excessively aroused states.
· Depression. A trait ranging from mild dysphoria ("the blues") to clinical depression. In the general population; it is usually observed as a sluggish, withdrawn, or sullen demeanor.
These personality traits are often intercorrelated. For example, a correlation between cynicism and depression would appear to be self-evident in many individuals. The present analysis concentrates chiefly on the traits of cynicism and arousability, although others are also considered.
One way of looking at the psychological make-up of the plaintiff juror is to consider the question, "What is it that makes one receptive to a complaint?" After all, the juror who resonates strongly with the plaintiff's message is in fact, responding to a complaint. Clinical assessment instruments that measure cynicism as a personality trait find that cynical people respond strongly to the following statements.
· "People pretend to care about one another more than they really do:”
· "Most people make friends only because friends are likely to be useful to them:”
· "Given the chance, most people will take advantage of you:”
Strong endorsement of these clinical assessment statements is indicative of high degrees of cynicism. Obviously, then, it is not surprising that individuals characterized by this temperament would be biased toward the plaintiff in cases for which claims include fraud, unfair competition, tortious interference, misappropriation, unjust enrichment, sexual harassment, or even product liability in which corporate misconduct is alleged. So, it is more or less self-evident that cynicism would be one pivotal characteristic that causes a juror to be sympathetic to a complaint by an allegedly victimized party.
Working with trial counsel in actual jury selection settings, it is apparent that many litigators confuse skepticism with cynicism. Skepticism is, in many respects, the opposite of cynicism. A skeptical individual is hesitant to accept a given proposition and demands proof before adopting a belief or premise. This type of person is typically a defendant juror in a civil case. A cynical person, on the other hand, readily accepts the notion that someone has been victimized, since he already views the world as being inherently predatory, and sides quickly with the plaintiff.
The Arousable Juror
A noteworthy characteristic of many plaintiff jurors is the psychological trait of arousability. In the courtroom, a high degree of arousability is often linked to a cognitive or information-processing style in which large amounts of evidence are stored in the mind during the plaintiff's case-in-chief, with less and less information being assimilated later when the defendant has a chance to put on evidence. In essence, this juror becomes excessively "heated up" by the plaintiff's case to the point where the juror's cognitive (information-storing) facilities "melt down:” Post-trial interviews of such jurors reveal that they have retained only traces of evidence from the defense, later in the case, although their recall of information from early in the case is quite vivid, thorough, and accurate.
A good example of this type of juror can be found in the antitrust case of ETSI v. Burlington Northern, Inc., in which the plaintiffs were suing various railroad companies for preventing the construction of a coal slurry pipeline. See 822 F.2d 518 (5th Cir. 1987). The defendants sought to demonstrate that there was no causation between their actions and the failure to construct the pipeline, since ETSI (Energy Transportation Systems, Inc.) had not even obtained approval for the project from the Interstate Commerce Commission. The former head of the ICC was the last witness in the trial and spent the entire day on the stand. Notably, however, a handful of jurors - all comparatively energetic and arousable individuals - could not even state, during the post-trial interviews, what the initials ICC signify. By contrast, these jurors recalled, with great clarity, the videotaped depositions of railroad executives that the plaintiffs had presented during their casein-chief, weeks earlier.
The overt characteristics of the highly arousable juror resemble very closely those of a less sophisticated person with limited information-processing abilities. However, closer examination reveals an individual who is of at least average intelligence yet fails to store and assimilate later-presented information that would provide alternative explanations or a more refined and detailed fact scenario benefiting the defense.
In short, the propensity of being highly arousable controls the information-processing style of this special class of plaintiff juror. To illuminate the relationship between arousability and ‘cognitive meltdown;’ it is helpful to consider "strong" versus "weak" nervous systems in different individuals. Those with strong nervous systems react less intensely to sensory input and are therefore able to withstand greater amounts of impinging stimulation over long periods of time. A weak nervous system, on the other hand, responds more energetically at the outset, but then quickly exceeds its capacity to absorb or process new information - the pattern of the plaintiff juror who is subject to cognitive meltdown. In other words, persons with strong nervous systems are less arousable; they tend to remain calm and continue to process incoming information longer. Those with weak nervous systems (highly arousable people) become excited quickly, have more extreme reactions, and block subsequent input after a comparatively short time.
Another point for defense trial lawyers to keep in mind when selecting a jury is the relationship between arousability and "emotional empathic tendency" - the predisposition to empathize on an emotional level with another person. More arousable people are more likely to react in kind to an emotional appeal. They are more likely to store in memory and recall only the emotional portion of a message or communication. As a result, it is clear that the plaintiff message will stand out in the memory of an arousable juror not only as a result of ‘cognitive meltdown;' but also because of a generalized bias toward emotional messages.
There is also a positive correlation between arousability and distractibility, which is in turn positively correlated with neurotic tendencies. High levels of arousability have also been linked to temperament characteristics such as impulsivity, lack of endurance, anxiety, mood disturbance, and sensitivity. These are not the types of characteristics that the defense trial lawyer typically hopes to find in a panel of jurors. The fact that these traits are intercorrelated helps explain why plaintiff jurors frequently do not even recall evidence from the defense. Anecdotal observations from mock trials and real trials suggest that plaintiff jurors are often more unstable, emotional, sensitive and selective in their memories than their more defense-oriented counterparts.
CONCLUDES IN PART 2 NEXT WEEK
The Role of Cognitive Fatigue on Witness Performance