Jury selection in intellectual property cases - part 2
In part 1 of this topic, we laid the groundwork that two different sets of profile characteristics were needed to reliably identify plaintiff and defendant juror types: Those who would tend to find (non)infringement and those who would tend to find (in)validity. Part 1 included an analysis of the problem-solving process jurors used for IP cases. Read on for the final part of this topic.
To large extent, we already had our answer from other cases. Cynicism, as a stable temperament dimension, refers to a person’s tendency to view the world as inherently predatory, sinister or malevolent (it should not be confused with skepticism, which is defined as a person’s need for unambiguous proof of a statement, principle or proposition). People with above average levels of cynicism are more likely to view corporate conduct as oriented toward targeting less powerful businesses or seizing an opportunity to steal something of value.
More generally, if there is a fact pattern that suggests the possibility of greedy or rapacious conduct, a cynical person will relentlessly adhere to an ominous interpretation of it. Thus people with high levels of cynicism tend to “resonate” with a complaint and are found in disproportionately high percentages among plaintiff jurors across a wide variety of cases, including antitrust, fraud, employment cases, toxic cases – and intellectual property. In short, one of the leading predictors of plaintiff verdicts and high damages that had been noted in other types of cases was now being confirmed in patent cases as well – because these cases were being construed as misappropriation (theft) disputes.
Completing the Picture
Elements of the initial research using the 2-dimensional framework described at the outset were considered for their applicability in finalizing juror profiles. It was considered particularly important to account for cognitive sophistication, namely the extent to which jurors used fine detail in categorizing perceptual experiences – a juror characteristic that had been identified early in the game as being highly relevant to IP litigation. Psychologists refer to this cognitive trait generally as “information need:” That is, how much data, evidence and information do people generally need in order to make a decision or come to a conclusion?
Prior research in a number of different types of cases has revealed that plaintiff jurors tend to be low in information need, and to reach decisions comparatively quickly, resulting in more extreme or strongly committed response patterns. This tendency exists not only in their reactions to Juror Questionnaire items (they tend to check the extreme endpoints of measurement scale items) but also in their reactions to the case itself (which explains why such individuals tend to “shut down” during the plaintiff case-in-chief and adhere to decisions made in the early phases of trial, before the defendant gets a chance to put on its case).
Defense jurors, on the other hand, typically give more neutral or equivocal (“It depends…”) type responses, and are less committed to their opinions and attitudes, because they tend to need more information before they can finalize a firm decision or position on a matter. These are also the types of jurors that are still listening when the defense case-in-chief begins later, midway through trial – because they need more information.
Using specially designed measurements of cynicism and information need in Supplemental Juror Questionnaires during jury selection has demonstrably improved outcomes in cases. In a sample of fourteen trials in the Eastern Division of Texas, working for defendants, seven defense verdicts were obtained, with average damages of $1.2 million for the group as a whole. It is important to note, however, that specific items need to be built into the Supplemental Juror Questionnaires in advance in order to effectively use research results associated with the previously described analyses. This requires a proactive approach well before the trial date in formulating and advocating Juror Questionnaire items with the Court and opposing counsel.
At the outset it was stated that initial cases were considered in which inventors sued defendants or alternatively, corporations were suing corporations. Later cases involved NPE’s (non-practicing entities, or “patent trolls”) as plaintiffs – but this shift did not have an effect on the previously considered juror profile dynamic related to misappropriation. Plaintiff jurors tended to interpret the cases in terms of misappropriation even when the plaintiff itself was not an inventor or manufacturer – at least until very recently.
In small, rural venues in which patent cases have been repeatedly filed over a period of decades by “trolls,” the populace has started to become aware of the trend and the result has been a growing skepticism toward NPE’s that was previously non-existent. This growing skepticism in the population in turn has further altered the dynamic in identifying effective juror profiles, such that individuals who are wary of excessive litigation become stronger defense jurors. By the same token, the flip side of the coin is that some people (plaintiff jurors) believe that “litigation is necessary to keep corporations honest.”
Thus, sociological and historical changes in the litigation arena and society more generally will continue to shape and alter juror profiling characteristics. It is therefore necessary to continually adjust juror profiling databases through ongoing research efforts in order to have a maximally effective jury selection strategy – and associated measurement instruments in the form of Supplemental Juror Questionnaires.
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Juror Confirmation Bias