Understanding How Jurors Would Value Your Matter

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10. Copyright 2014 Litigation Psychology, LLC. All Rights Reserved.

1. Adam Boesen Best Practices in Case Research Understanding How Jurors Would Value Your Matter

2. 2 2 W hen 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 atypical issues. This article 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 in order 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 sensemaking, 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,

6. 6 When queried about the lower damages, jurors in southern states noted the need to repair the harm done but not hurt the oil industry because of friends and family members connected to the industry. On the East and West coast, jurors specifically noted the need to “punish” the oil and gas industry for its failures. Similarly, jurors on the East coast in New York, New Jersey and Connecticut, voiced little anger about Wall Street’s connection to the Great Recession, while jurors in other parts of the country proved much more willing to punish businesses connected to banking, finance, and investments. Considering how a local industry impacts a venire or the distance from a venire can play a critical role in jurors’ willingness to offer large damages. In addition to local industry impacting a venire, the frequency of a particular issue, the number of comparable cases, or the number of plaintiffs can all impact the culpability jurors ascribe to defendants. When plaintiffs advertise heavily about the potential misconduct related to a practice or hospital, or when the news media provides skewed coverage of a local issue, the defendants often face a substantial burden in overcoming the prejudices created by the plaintiffs. Trial consultants call these juror prejudices the “priming factor,” because various sources have primed jurors to view a case or issue in a specific light. Because these beliefs have been generated prior to or as a result of a lawsuit, jurors already hold a belief about the issue and also subsequently reduce the credibility of defendants because they view them as trying to avoid the “truth.” The priming factor can powerfully hamstring a defendant. Evaluating whether the media or the plaintiffs have been priming jurors is a vital step to considering whether jurors may already be inclined to offer large damages. Research We pride ourselves on accommodating our clients’ needs, and it is not uncommon for clients to call or meet for lunch and simply chat about a case because they do not have the resources for research but would like a strategic assessment of their case. As discussed, when evaluating a case from a jury perspective, our focus is on identifying and evaluating the case narratives jurors are most likely to construct from the fact pattern. Traditional mock trials involving juror deliberations can be particularly useful in this endeavor, but they are not always necessary and in fact are often not realistic, especially when engaging in very early case valuation. A rule of thumb we follow is that if it is far easier to imagine a simple pro-opposition narrative than it is to construct one for your own case, you may be facing an uphill battle. Thinking about a case from a juror’s perspective can be immensely valuable, but if questions remain, some form of research employing mock jurors should be considered. Even low budget research can still be useful to expose unanticipated case vulnerabilities, value the case, and inform settlement analyses. Online mock trials are increasingly cost effective and offer an excellent opportunity to gain basic juror feedback on a case that can identify case vulnerabilities. Unfortunately they lack the realism of live mock trial, and while informative for existing valuation methods, they are not in and of themselves predictive of trial outcomes. Issues-

7. 7 based focus groups are capable of narrowing in on specific case issues or key witnesses and can also be cost effective because they reduce counsel’s involvement. However, they lack a juror deliberative process, which is essential for the higher levels of predictive validity. Simulative mock trials provide the highest reliable prediction rate because a “judge” instructs jurors that the exercise is a step in the settlement process, and the research simulates the courtroom experience in both its structure and the content of attorney presentations. The downside of course, is cost. We encourage using the results of research not only for valuation, or to strengthen a case for trial, but also for mediation and settlement. Roger Fisher’s Getting to Yes specifically notes the importance of “objective data” for early settlement/mediation purposes. Data from online mock trials or live mock trials presented by a litigation consultant with research experience can offer mediators “objective data” to push opposing counsel toward settlement. The benefits associated with research far outweigh an errant case valuation. Conclusion This article has been dedicated to case valuation, but that is only part of the value in conducting trial research. Often our goal is not to predict whether we will win rather to learn how to win. In other words, is there a path to victory? If not, what is our best case scenario, and how do we work toward that path? A recent case experience illustrates the point: We were retained on a case involving a widowed plaintiff whose husband had been horribly burned in a natural gas explosion while attempting to re- light the pilot light on their furnace. The deceased lingered in the hospital for a month, going through five full body debridement treatments before eventually passing away. The case was at great risk as there had been a series of bad depositions of both management and service providers from the defendant energy company, with many glaring inconsistencies, and dangerous omissions. The case was evaluated as highly unlikely of a defense verdict, but plaintiff would not settle. At trial, deliberations were brief. When polled, every juror said the defense had never been at risk for of a finding of liability. What happened? During the research exercise, mock jurors had keyed in on several photographs of the pilot relay from plaintiffs’ furnace. They noted that several of the screw heads had been stripped out. As one juror said, “That looks like it’s been opened up and not by a professional.” From that simple insight the trial team developed a completely new strategy, narrative, and themes wherein the theory became that the plaintiff had serviced their own unit, and was therefore personally responsible for the explosion. The case was reworked and retested. Within the new narrative, juror evaluations of the deposition testimony from the service technicians that had previously been some form of, “All those guys are lying” became, “Those guys didn’t do anything wrong and are just scared of being blamed.” When the case narrative changes, so too does the case valuation. Utilizing research to discover a new narrative that will result in a defense verdict is of course not always possible. What we do know is that thinking through the case from a juror perspective and gathering the best quality feedback

9. 9 About the Authors Mr. Boesen is the Managing Director of Litigation Psychology at Courtroom Sciences, Inc., a national litigation support firm providing a complete menu of trial science and litigation support services. Adam has over ten years experience consulting to both trial counsel and litigation risk managers on cases in venues across the U.S. He is proficient in all aspects of litigation research and consulting. Adam specializes in the “story model” of jury persuasion, which focuses on how jurors construct narrative frameworks to help them receive and process large amounts of information, evaluate the credibility of witnesses, and determine which evidence should be most central to their decision making. His unique ability to understand a case from the jury’s perspective makes him an invaluable part of any trial team, especially when dealing with complex or emotional subject matter. Adam also specializes in training witnesses for deposition and trial testimony. His ability to help witnesses understand their role in communicating the key case themes allows Adam to consistently transform even the most difficult witnesses. Adam’s clients seek him out for liability risk assessment, case valuation, and strategy consultation as well as the more traditional jury consulting services such as the crafting of case themes, the development of voir dire and the selection of jurors, and the training of key witnesses for testimony.

4. 4 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. Motive matters 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. Witness demeanor Our research shows repeatedly that non-verbal communication plays the most significant role in determining ratings of witness credibility, which is vitally important because witness credibility is the primary factor driving jurors’ decisions to support one party or another. Because the foreign environment and process of a lawsuit confuses jurors, they often rely on their intuitive process of decision-making, which greatly impacts their decision to accept or reject information. Whether jurors accept or reject information often depends upon whether they deem a witness credible. Credibility involves a complex interplay of other attitudinal dispositions such as professionalism, emotional poise, confidence, knowledge, honesty, likeability, and genuineness. When jurors observe a defendant whose demeanor instills trust, it becomes far more difficult for them to believe that what the plaintiff is claiming is true. However, if that defendant witness’s demeanor on the stand appears disinterested, self-serving, frightened, or angry, it can actually shift the burden of proof onto the defense because jurors find themselves thinking, “I can see him doing exactly what the plaintiff said he did.” For witnesses, testifying in either a deposition or at trial creates one of the greatest psychological and communication challenges they have ever encountered. Because of the challenging nature of attorney’s questioning, a witness must apply forced systematic cognition to properly evaluate and respond to the questions asked to him or her—a process which is quite different than everyday conversations. In addition to managing the psychological and communication process, witnesses must also manage the emotional stresses related to the case and attorney manipulation techniques (e.g., anger, shock, repeating issues, silent pauses, requesting assistance/understanding) commonly found during questioning that may cause the witness to lose focus. The emotional state of a witness, the initial impression a witness makes, and opposing counsel’s typical questioning tactics can all impact whether jurors deem witnesses credible.

5. 5 Demonstrative exhibits Trial outcomes often hinge on how jurors receive and react to key demonstratives and exhibits. In our research we have seen graphic photos have no impact on a jury and we have also seen them drastically elevate the damages awarded. In one case, jurors initially believed the plaintiff, a young widowed mother, would eventually marry again and go on to live a happy life, which during deliberations resulted in lower awards for lost future earnings. After deliberating, however, jurors viewed the photos of the plaintiff’s deceased husband immediately after the accident and reported whether the images impacted their damage awards. Remarkably, damage awards more than tripled. When jurors explained why, it wasn’t the graphic nature of the photos that disturbed them. They cited one photo in particular of his face, which appeared angelic and as if he were sleeping rather than deceased. As one juror said, “His wife saw these photos, right? She will never get over that. Never. She will need therapy the rest of her life, and I can’t ever see her being happy ever again.” Damages Requests for large damages often offend jurors if either gross negligence is not apparent or the plaintiff is seen as sharing some culpability. Jurors see themselves as having a duty to make moral decisions, and few want to see a plaintiff enriched as a result of their own carelessness or misconduct. If jurors sense that the plaintiff chose to sue out of greed rather than out of a desire to be made whole, or to protect others, they can come to the view that the most wrongful act in the case was the filing of the lawsuit. The issue of damages is of course quite complex, but we wish to note that jurors do not simply throw out numbers; instead, they discuss and develop a rationale for their awards. In a recent case involving two plaintiffs, attorneys and the claim adjuster refused to believe that jurors would award the young ambulatory plaintiff more than they would award for the life-sustaining costs to the other plaintiff with paraplegia. Jurors noted that the ambulatory individual requires an even greater level of care and attention precisely because she could move around and accidentally encounter dangerous situations. In our view it is critical to identify the various arguments jurors construct when pushing for higher and lower damages. Insight into their thinking is essential not only when valuing the case, but also at trial. Venire location Claims adjusters and attorneys regularly apply values to cases taking place throughout the country, but in some cases, the venire location plays a particularly important role because of local industry and priming factors. If a suit potentially impacts a local industry that significantly supports employment in a venire, jurors are often reluctant to award large damages against this industry for fear of hurting friends or families who may have connections to that industry. However, if the suit occurs in a venire unconnected to a local industry, then jurors are much more willing to punish and offer large damages. During the Deep Water Horizon Oil, mock jurors in the gulf coast states offered much lower damages than jurors on the East and West coasts.

3. 3 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 particular 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

8. 8 your resources allow will increase the accuracy of your valuation methodology. 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.

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