Evaluating a case calls for a deep understanding of the law, access to appropriate archival data, financial and statistical analyses, and a heavy dose of real world experience and good judgment. But in any given matter there can be issues that are so unique that the case is simply not amenable to a rational analysis of archival data. In these circumstances there is no substitute for asking mock jurors to weigh in through some form of trial research, be it a mock trial, a cost-effective online study, an issues-targeted focus group, or simply an evaluation of a witness’s mock testimony. Many research designs and methods exist at multiple price points, any one of which is likely to be less costly than a wrong prediction. But what if there simply are not enough resources for any kind of research? Our answer is that you can still enhance your case valuation by thinking about your case from a juror perspective.
Understanding how jurors think begins with acknowledging what jurors want. Thousands of post-trial interviews have confirmed for us that jurors are principally motivated to make the “right” decision – a moral decision that creates a more just world. But jurors don’t know the law, and they don’t trust the parties or their attorneys or expert witnesses, so how are they going to make the right decision? They fall back on the methods they use to deal with uncertainty when making decisions in everyday life. They make moralistic, rather than legalistic, evaluations of individuals’ conduct in order to identify who to trust, who to support, and who “needs to be taught a lesson”.
Jurors go about evaluating the conduct of any given party by examining the choices made in light of the duties and obligations that were owed, and what was either known, or should have been known at the time. Were their choices reasonable, or at least understandable? Or were those choices motivated by selfishness, or were they simply the result of carelessness? Jurors use these moralistic evaluations of conduct as a foundation upon which to construct their own story line, or narrative framework, within which the key “actors” in the story of the lawsuit play out their good or bad intentions. These narrative frameworks provide a context within which the evidence is interpreted and stored in their memory. As such, identifying and understanding what narratives a fact pattern is likely to inspire in the minds of jurors is central to evaluating a case from a juror perspective.
2 This goal is best achieved through research involving mock juror respondents; however, it can also be addressed and discussed by counsel and the claims professionals evaluating a case. Remember that jurors are making moral evaluations of the motives and choices of the key actors in the story of the lawsuit. They feel their job is to find someone who needs to be taught a lesson. If you cannot construct a reasonable story wherein your opponent is the one who needs to be taught the lesson, you may be the one who the jury “teaches”.
2 For more on Narrative Theory see Routledge Encyclopedia of Narrative Theory by David Herman, Narratology: An Introduction to Narrative Theory by Mieke Bal, What Stories Are: Narrative Theory and Interpretation by Thomas M. Leitch.