Best practices in case research - part 1 of 2
Understanding how jurors would value your matter
When managing litigation, every decision should be made with as deep an understanding as possible of what a future jury would do. But few things are as complex as trying to predict jury decisions. Valuing a case requires 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.
In a jury trial there is no crystal ball, and there is no substitute for asking mock jurors to weigh in through some form of trial research, be it a full blown mock trial, a cost-effective online study, an issue-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. Nevertheless, time and resources are often limited, rendering research unfeasible. As trial consultants, a common question we often hear is, “I don’t have the budget to conduct research on every case I manage, so how do I know which to test?” Our answer is that you can still enhance your case valuation by thinking like a juror, and in deciding whether to conduct jury research, you should prioritize not only the large cases, but also the unique ones. Matters can quickly grow from small to large, and there is simply no way for archival data from past cases to tell you how jurors are likely to respond to cases with a typical issues.
This two-part blog offers a primer on analyzing a case from a juror perspective, identifies the factors that most impact jurors’ decisions, and discusses a variety of research solutions to enhance your existing case valuation methodology. The research may be archival, internet based, or live. It may consist of a multiple-day mock trial or entail simply showing a witness clip to non-attorneys. Well-designed, well-executed research offers opportunities to gain deeper insight into the factors that influence your existing case valuation. It also identifies previously hidden vulnerabilities and provides reliable data for settlement purposes.
A Primer on Juror Psychology
The courtroom is a foreign environment that often proves confusing and intimidating to jurors. It is disorienting because jurors are asked to take part in a legal decision without knowing the law before hearing the case. They receive evidence from adversarial parties who have a clear motive to obfuscate, withhold, spin, or even misconstrue. How do jurors deal with such a disorienting, even Kafkaesque environment? They fall back on the tools they use to deal with uncertainty when making decisions in everyday life. They apply cognitive shortcuts to reduce the complexity of the information they must process, and they make moralistic, rather than legalistic, evaluations of individuals’ choices and conduct to identify the “right”decisions.
Jurors need a way to deal with the often-overwhelming uncertainty and complexity of the information they receive. They accomplish this by employing heuristic shortcuts, a process researchers call sensemaking1, which occurs not only in jury trials, but anytime people face an environment of uncertainty. Sensemaking proposes that in order to understand how humans “make sense” of the world, we should focus on how they selectively construct solutions. During the process of sensemaking in a trial, jurors impose their own personal view of the world onto the evidence and filter case information through cognitive shortcuts by relying on their prior experiences, personal commitments, and interpretations.
Jurors go about evaluating the conduct of any given party by examining the choices made in light of the duties and obligations owed, and what was known or should have been know at the time. Were the choices understandable, or even reasonable? Were they motivated by recklessness or selfishness?Jurors use these moralistic evaluations of conduct, as well as the results of the heuristic shortcuts employed during process of sensemaking, 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. As such, identifying and understanding what narratives a fact pattern is likely to inspire in the minds of jurors is essential to evaluating a case from a juror perspective.2 This goal is best achieved through research involving mock juror respondents; however, we have encountered a number of factors associated with case strengths or vulnerabilities that should be considered in the absence of such research.
Key Factors Affecting Juror Case Evaluations
When assessing a case’s potential value from a jury perspective, it is important to keep in mind typical case factors that may dramatically shift the value of a case either up or down. Over the course of years of research, we have gained insight into some of the vulnerabilities common to most cases.
Plaintiff culpability or innocence
Jurors have difficulty returning defense verdicts when the plaintiff’s chosen path through life and likely future has been irrevocably altered for the worse, through no fault of their own. In these instances, jurors will often come to believe that it is a lesser evil to take money from a defendant who did nothing wrong than it is to award nothing to the innocent victim. In contrast, if jurors come to believe that the plaintiff played even a small role in bringing about their own harms, it becomes far less likely that a jury will unanimously agree to take money from a defendant who they generally agree has done nothing wrong.
Contextualizing questionable decisions
Jurors will evaluate each party within the context of their own personal experiences, attitudes, and beliefs. The choices the parties made are well documented in the record and there for all to see, but how will those choices be evaluated? Fundamentally, if a juror looks at a party’s choices and says to themselves, “I can imagine myself having made the same choice,” then they will evaluate that party’s conduct as understandable or even reasonable. However, if a juror cannot see themselves as having made similar choices, they will evaluate that same conduct as careless, reckless, or selfish. Are there contextual elements capable of transforming the seemingly careless or reckless choices made by your client into decisions that were understandable or reasonable? If that is a stretch, your case is probably more at risk than if such contextual elements exist.
The perceived credibility of either the plaintiff or defendant plays a key role in jurors’ evaluations of a party’s earlier conduct and their assumptions about what motivated their decisions. Motive matters to jurors. In a recent case, jurors awarded no money to the plaintiff because they learned of his prior business failures, which led them to conclude he was desperate for money and used litigation to generate an income for himself and his family. In another recent suit, a foreign-born doctor left the country fearing he would lose everything as a result of a lawsuit. Jurors were unable to see past these issues and viewed the doctor’s flight as evidence of wrongdoing. Asking questions about the plaintiff, defendant, and their subsequent actions following the suit could expose significant case elements that heavily influence jurors’ view of a case.
1 Sensemaking, as a theory of decision-making, has been widely employed by scholars across a variety of fields, such as Communication, Psychology, and Business management studies. The Department of Defense employs Sensemaking strategies within high risk environments. On the influence and widespread use of Sensemaking see Rhetoric and Discourse in Supreme Court Oral Arguments by Ryan Malphurs, Dennis Gioia and Kumar Chittipeddi, “Sensemaking and Sensegiving in Strategic Change Initiation,” Strategic Management Journal 12 433- 448; Maryl Louis, “Surprise and Sensemaking: What newcomers experience in entering unfamiliar organizational settings,” Administrative Science Quarterly 25 226-251; Maryl Louis and Robert Sutton, “Switching Cognitive Gears: from habits of mind to active thinking,” Human Relations 44 55-76; William Starbuck and Frances Milliken, “Executives personal filters: What they notice and how they make sense,” The Executive Effect by Donald Hambrick (ed); Making Sense of the Organization by Karl Weick, Making Sense of the Organization by Karl Weick; Sensemaking in Organizations by Karl Weick.
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.