Overcoming Jury Bias

OVERCOMING JURY BIAS The purpose of this paper is to examine various approaches to coping with biases, beliefs and preloaded conceptions, particularly regarding the civil justice system, which citizens bring to the courthouse when called for jury duty. We overlay modern forensic psychological principles which have emerged from numerous studies of the decision-making processes of jurors onto persuasive techniques which have been used successfully for centuries. Finally, we examine twelve suggested methods to cope with jury bias. We also examine methods of creating, struc- turing and testing messages and themes as well as techniques for effective delivery of themes as a means of assisting jurors in setting aside bias. However, we begin where all persuasion begins: with Aristotle. I. ARISTOTLE'S PRINCIPLES OF PERSUASION 2300 years ago, Aristotle, in his Discourse on Rhetoric reduced the principles of argu- ment to four major points. Examination of these four points reveals that they serve those of us who labor in the vineyards of litigation as well today as they have served Aristotelian scholars for 23 centuries. Aristotle's first principle: Well dispose your audience to you and ill dispose them to your enemy. It is not sufficient to make your own case but it is also necessary to affirmatively attack your opponent's position, particularly on their most salient points. We often win the battle on the case in chief and lose the war through ignoring the opponent's case. Ideally, co-counsel in your office should be assigned the task of preparing fully the other side's case from their perspective. In doing so, they will peruse the strengths and weaknesses of the opponent's case while viewing your case from an adverse perspective. This will afford you the opportunity to analyze your opponent's viewpoint in exploiting your weaknesses and launching attacks on your strengths. This leads to Aristotle's second principle. Aristotle's second principle: Maximize your salient points and minimize your weaknesses. It is necessary to determine the thrust of your case early in the evaluation process and design your evidentiary presentation around a few well defined points, i.e., develop a theme. With respect to the weaknesses in your case, deal with them directly. Either dispel them, distinguish them or be the first to confront and minimize them prior to your opponent's positive use of them against you. Most importantly, don't ignore them. The principle of inoculation applies here. By directly addressing your weaknesses before the opponent gets the opportunity to do so, you are able to weaken the attack and choose the language with which the weaknesses will be first discussed to the jury. This will convey the important and accurate impression that you are being straightforward and honest with the jury which enhances your own most important characteristic, i.e., credibility. By openly revealing weaknesses in your case and carefully couching your discussion of them, you may successfully inoculate the jury against the inevitable attacks by your opponent. With respect to maximizing your salient points, this is simply done through the development of themes in your case which convey your well-defined messages in simple, easily understood and memorable language which embraces the facts and provides motivation for the desired verdict. Your theme should be based upon common sense which is the hallmark of the collective wisdom of the jury. Your themes should be delivered through the use of repetition throughout the trial, which brings us to Aristotle's third principle. Aristotle's third principle: Refresh the memory of your audience frequently. Napoleon Bonaparte, who was a great orator as well as a military genius said that only one rhetorical device was needed to persuade: "repetition, repetition and repetition". Repetition as used in the context of litigation means developing themes, and the messages inherent in the themes, and embedding the themes and messages throughout the trial through thematic repetitions from various evidentiary directions. Consistency and repetition are the hallmark of persuasive presentation of themes. Build thematic repetition by threads of consistency running throughout lay testimony, expert testimony, demonstrative evidence and documentary evidence, which are totally consistent with counsel's comments on voir dire, opening statement and summation. Proper thematic development through repetition achieves a coherent presentation which coalesces in the evidence and culminates in persuasive presentation of the thematic arguments during summation. Themes and messages should be introduced during voir dire and opening statement and developed fully in a combination logical and emotional appeal by counsel during summation. This brings us to Aristotle's fourth principle of persuasion. Aristotle's fourth principle: Execute the required level of emotion. This is probably the area in which juries are most disappointed by trial attorneys. Forensic psychologists tell us that the one word which would be most often used by jurors to describe jury service is "boring". Advocates fail to execute the required level of emotion by adequately involving jurors in the trial of the case. All too often, jurors sit as mere spectators to occurrences in the courtroom without being reminded that they are an integral part of the system. Counsel should strive to empower the jury with the early understanding that they are the sole judges of the factual disputes, the credibility of the witnesses and the amount of damages to be awarded in the case. Very early in the voir dire examination, make jurors understand the extremely important role which they are playing in the adversary system so that they do not view the trial as a spectator, but rather appreciate the importance of their position. Jurors get less than they expect from advocates and when we disappoint jurors, they will return the favor in kind. There is a major place for emotion as a persuasive tool in the trial and that time is during summation. However, this is not emotion for the sake of emotion and must be distinguished from an appeal for sympathy. One of the purposes of this paper is to discuss how to get jurors to confront the plaintiff's physical pain and suffering and mental anguish and how to involve the jury viscerally in the trial. II. MODERN FORENSIC PRINCIPLES A. Jurors Decide Cases on Perceptions Jurors do not decide cases based upon reality. Why? Because unless the juror was standing on the corner and witnessed the collision and color of the traffic signal, the juror does not know what reality is. Jurors base their decisions upon their perceptions of reality. Therefore, it is relevant for advocates to consider at least six broad based sources which affect jurors' perceptions upon which they base their decision. These include the beliefs which the jurors have before entering the courtroom, i.e., biases; everything that they observe during the course of the trial, in and out of the courtroom; the evidence presented and the credibility of the witnesses; persuasion by counsel; the court's charge; and persuasion by other jurors. 1. Jury Bias: Preloaded Perceptions While theoretically, the perceptions of reality are created in the minds of the jurors through evidence elicited from the witness stand and through the documentary and demonstrative evidence which the court allows into evidence, we must never underestimate the importance of the biases and preloaded perceptions which the jurors have in their minds as they enter the courtroom for the first time and how important these biases and perceptions are to the decision- making process. For example, many jurors who are called to be the decision-makers in a case involving medical negligence will begin the decision-making process simply upon learning that this is a "medical malpractice" case. According to Dr. Ellen Leggett of the Leggett Jury Research, their database reflects that one-third of jurors nationally believe that the people who file medical malpractice cases are looking for easy money; two-thirds believe that plaintiff lawyers pressured patients into filing malpractice suits; many believe that malpractice cases are driving up their medical insurance rates, and half of the jurors believe that malpractice cases are ruining the health care system in this country.1 The initial juror assumption upon hearing about a medical malpractice case is that it is a frivolous lawsuit and the health care provider who is the defendant is assumed to be the “victim” in the case. Therefore, the skilled advocate will give careful consideration both to the biases, i.e., preloaded perceptions with which jurors enter the jury box in their particular case and to the advocate's role in coping with the biases and in creating new perceptions upon which the jury will decide the case at bar. Perception is really each person's own vision or version of reality. Perceptions have effect on the conscious mind. When we communicate we take action based on what we perceive to be the facts or the truth. Perception is each individual's picture of reality. When we talk to people we communicate from the vantage point of the other person's perceptions of reality - his or her own model of the world. The skilled trial lawyer understands that each juror sees the world not as it is but as he or she is. Understanding the biases which each individual juror brings with them to the jury box is an important element in effectively framing the story which the attorney will tell through the evidence to influence the juror’s perceptions of the case. Magicians understand the principle of clinging to perceptions. They use this principle to create miracles. They know that if they can fool our senses into perceiving that something is so, we will believe it. Once we believe that something is so, even though it is not, we accept it.

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