Is fear of science costing your firm? - part 1
After spending thirty years working with trial teams, the same types of questions seem to continually surface: “How much will a jury award?” “Will this theme be persuasive?” “What kinds of jurors will be most receptive to my case?” Scrutiny of the underlying factual issues underlying these questions points to (at least one) issue common to them all: Prediction of behavior.
In every instance, a trial team wants to know what a juror, or group of jurors, will conclude or what behavior they will undertake (e.g., answers to verdict form interrogatories) at some point in the future. Inferences regarding future conduct by definition entail prediction of behavior.
As a scientific endeavor, prediction rests at the highest level of achievement. Recalling basic science classes with the image of Newton sitting under the apple tree, he sees the apple fall (observation), derives an initial explanation to be tested (hypothesis) and then, once the initial idea is tested sufficiently, it evolves to the status of theory. A good theory will then predict accurately, which is the ultimate goal of science. But prediction is the holy grail, the final objective, because from prediction comes control (the desirability of which need not be explicated). When research does generate results that predict accurately, we say that the results have predictive validity.
Prediction of behavior, being the ultimate objective of jury research, happens to be a highly specialized field of study in psychology. Application of proven scientific methodology in this field might therefore be referred as “psychological technology,” defined as the use of psychological research methods to solve real world problems, in this case, obtaining answers to the questions posed at the outset connected with juror behavior.
Rather than drifting off into a realm that appears to be unnecessarily arcane, it is helpful to conceptualize science as simply a means to reliably ascertain what can be known. Therefore, the use of science, or more precisely psychological technology (the application of science) to predict behavior of jurors is nothing other than an all-out assault on the question of exactly what jurors are going to do with a case.
It would seem reasonable, therefore, given the stakes involved in litigation, that such an “all-out assault” would be rather commonplace. Millions of dollars can rest in the balance based on juror behavior, and the only route to obtain information on this behavior in advance is jury research. In many cases, post-trial jury interviews are impossible, and the only way to know what jurors are thinking, and how they make decisions, is through jury research.
As stated previously, science is merely an attempt to confirm reliability of what is thought to be “knowledge.” One would think that such a simple and eminently desirable goal as wanting to confirm the reliability of knowledge with regard to the conduct of a jury would be a top priority – yet even with millions at stake, emphasis on obtaining scientific expertise in jury research is virtually nonexistent.
Opinions have been rendered that the legal industry actively avoids science (www.ims-expertservices.com/bullseye-blog/november-2013/7th-circuit-excoriates-lawyers,-judges-for-fear-of-science/). The 7th Circuit, in a remarkable statement, charged the legal industry with “fear and loathing of science.” Fear and loathing of that which separates fiction from truth, or clever from correct. What implications could possibly be drawn from the cost-effectiveness of litigation efforts that would be, in any way, positive?
There is more:
Ø Peter Lee in the Yale Law Journal, wrote “as a general matter, lawyers and science don’t mix.”
Ø David L. Faigman, in his books, has stated, “the average lawyer is not merely ignorant of science, he or she has an affirmative aversion to it” and “law students, as a group, seem peculiarly averse to math and science.”
Ø Henry Friendly in the Federal Jurisdiction wrote in 1973, “How long shall we continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some advance.”
Lawyers are skilled in the legal realm but are not taught research methodologies and should leverage the appropriate scientific expertise in their cases in order to achieve predictive results.
The Jury Research Industry
Paradoxically, while jury research is aimed at the highest level of scientific achievement (prediction of behavior), its practitioners frequently lack the requisite scientific expertise. The jury research field has no barriers to entry whatsoever – even hair salons have more stringent credentialing requirements. For example, the American Society of Trial Consultants (ASTC) held a vote on whether its members should have credentials and the vote was defeated. Compounding the problem, many trial teams do not look for scientific expertise when hiring jury research practitioners. The result has been research often entrusted to erstwhile pre-school teachers, receptionists, paralegals, acting coaches, and even cooks in many cases, none of which have an understanding, background, or expertise in the scientific method.
As stated previously, the present emphasis is on prediction, and the tactical benefits of predictive validity to litigation strategy. Without science – an ability to confirm the reliability of what can be known – “prediction” is simply another opinion. Opinions are fine, of course, as long as that is all that they are purported to be. Once there exists a need to establish the reliability of an opinion, however, then one enters the realm of science, and it is this question of reliability that is the core issue.
Many who use jury research are content with
simply having a person that is liked and trusted assemble a group of test
respondents and put together the A/V equipment, taking research design and
methodology into their own hands.
Psychology as a field has a beguiling “anyone can do that” quality that
can lead to erroneous conclusions as a result of the nature of the research
itself. Psychological research is a
highly sensitive matter, wherein research efforts are exceedingly vulnerable to
subtle biases that can and do generate misleading results. Consequently, in high-stakes matters such as
litigation, where inferences must be made regarding nuances of juror
decision-making, accuracy – and
therefore scientific rigor – is not an esoteric or pedantic issue. Rather, understanding exactly what jurors
will do has real consequences both financially and with regard to litigation