Attorneys and Jurors: Do They Have Anything in Common?

Authors note:

David H. Fauss is co-owner and director of consulting services of Magnus Research Consultants, Inc. He coordinates the administration of all litigation, marketing, and organizational research for which Magnus is retained.

Melissa A. Pigott is co-owner and director of research of Magnus Research Consultants, Inc. She consults with clients across the U.S. on all types of jury and trial research.

I. Introduction

As consultants, we are frequently involved in situations in which our client, the trial attorney, has a very different opinion about the facts, and the conclusions to be drawn from the facts, than the conclusion drawn by our (mock) juries after hearing the case presentation. When this situation occurs, our clients turn to us for help in understanding why this “irrational” or “illogical” situation has developed. The attorney may say, “I don’t see why that juror (or jury) arrived at that decision”. Or, “Why can’t they see things my way?”. Or, “Didn’t they hear what I told them?”.
It appears that many attorneys believe that, if they, their colleagues, and their staff arrive at a particular conclusion when presented with a factual scenario about a case, then the same conclusion should be apparent to anyone and everyone, including a jury. Attorneys, like most people, tend to think their views are similar to others’ views. Social psychologists refer to the tendency to perceive false consensus as the egocentric bias.2 False consensus bias among attorneys leads to the erroneous belief that the jurors’ behavior is unusual, undesirable, or wrong, and can result in alienation between attorneys and their audience, the jury.
While it is true that there are some similarities between jurors and attorneys, generally speaking, the life experiences and values held by trial attorneys are within the context of all the experiences related to being a trial attorney. Research on stereotypes has demonstrated that stereotypes are based on an individual’s “in-group” membership.3 Thus, as a frame of reference, the trial attorney may rely on his/her own attitudes, values, and beliefs when evaluating case facts. However, it is important to recognize that the attitudes, values, and beliefs of attorneys are derived from life experiences which are, by societal definition, not typical or “normal”. Anthropologists might go as far as to say that attorneys exist in a sub-culture of their own!
To illuminate what we have observed as consultants, we undertook a study to compare attorneys and jurors on a variety of characteristics. Jurors were jury eligible citizens who participated in “mock trial” research conducted on behalf of our clients over the past three years. Responses of 363 mock jurors were randomly selected for inclusion in this analysis. In addition, 366 surveys were completed by attorneys. The attorney surveys contained questions identical to many questions completed by the mock jurors. (The attorney surveys did not contain case specific questions present in the juror surveys.) Attorney respondents included 130 plaintiff personal injury attorneys, 29 defense personal injury attorneys, 26 commercial attorneys, 83 criminal defense attorneys, and 98 criminal prosecution attorneys (state attorneys).
II. Archival Research

Prior to conducting our comparison study of attorneys and jurors, we reviewed the available literature on these two distinct populations. We searched psychological, sociological, and legal research databases to include all relevant findings regarding attorney – juror attitudes. We also evaluated general media reports on those topics. Our literature search revealed no studies similar to ours. The results of the literature search we conducted, did, however, yield relevant findings in several categories. In general, studies have researched various specific issues as they relate to juries. In only a few instances did the researchers compare the knowledge or attitudes of jurors and attorneys. Further, it should be noted that most research on juries involves criminal matters. Because civil and criminal cases are conceptually different, generalizations must be made with caution. (Additionally, some academic research has limitations due to the nature of the research, for example, use of college students as mock jurors. Studies with the greatest potential for external validity were included in this review.)

A. Eyewitness testimony

There has been a great deal of research in the area of eyewitness identification and testimony. Research has demonstrated that jurors may be over-believing of eyewitnesses.4 Because eyewitnesses are difficult to discredit, correct and careful procedures at the police level are critical. One study evaluated the idea, put forth by some courts, that eyewitness experts should not be allowed to testify because their expertise falls within the domain of jurors – that is, it is common sense.5 This study demonstrated that common sense assumptions regarding eyewitnesses, made by both jurors and attorneys, are often inaccurate, suggesting a need for experts to enlighten jurors regarding the fallacy of eyewitnesses. Survey research has demonstrated that prospective jurors overestimate the correct “hit rate” of eyewitnesses.6 In addition, it has been shown that judges and jurors are not aware of the extent to which eyewitness testimony is unreliable.7 This study found that prosecutors believed about 95% of eyewitness identifications were accurate, while defense attorneys believed 75% were accurate. A corollary study revealed that convenience store clerks were actually accurate in identifying a perpetrator between 34% and 47% of the time.8 The public falls between prosecutors and defense attorneys in their estimates of eyewitness identification accuracy.9

B. Juror Expectations

As you will note from our data, reported later in this paper, jurors are active in terms of leisure pursuits and obtaining sources of news and other information. Thus, it is no surprise that there is some research, though somewhat anecdotal, that jurors experience “entertainment overload”.10 This has implications for attorneys’ presentations, in that jurors expect to be entertained, or at least kept interested. According to this report, “the newest participants in the nation’s slug-paced judicial system switch off tedium with a remote control”.11

C. Demographics, Stereotypes, Verdicts, & Voir Dire

Considerable research has been conducted on the relationship (or lack thereof) between juror demographics and verdicts. Countless studies have shown that demographics account for only a small variance in jury verdicts.12 In a frequently cited article that explored the accuracy of attorneys in selecting favorable juries, it is noted that “Whatever skills attorneys have in their selection of jurors, their expectations appear to be heavily colored by stereotypic beliefs”13 (p. 432). These researchers found attorneys used only one to two items (e.g., occupation) to evaluate the desirability of prospective jurors. Part of their study demonstrated that attorneys and lay people (college students in this case) used the same stereotypes in making their choices; the results were that both students and attorneys were more in error than accurate in making their choices of favorable jurors. “We suggest that persistence of prior beliefs is a major impediment to selection accuracy. These beliefs often lead to incorrect and ineffective selection strategies,…14 (p. 448). It has been noted that, in some respects, attorneys are increasingly forced to rely on demographics when voir dire is conducted by judges in an effort to be more efficient.15 This means we can expect attorneys to become less, not more, accurate in judging jurors’ propensities.
D. Tort Crisis/Reform

Research has shown that jurors who favor tort reform favor the prosecution in criminal cases and the defendant in tort litigation.16 While this finding comes as no surprise, other findings from this study were noteworthy. For example, “tort reformers appear to be older, conventional, anti-civil libertarians who feel some what powerless and alienated. They do not believe in imminent justice and they do believe in taking legal action in their own self-interest”17 (p. 17, emphasis added).
In a study exploring tort crisis issues, it was noted that 46 states enacted 208 pieces of tort reform legislation in 1985.18 Evidence was cited that the “tort crisis” is widely overstated, that is, that median damage awards have not increased. The study found that 11% of all jurors believed that half of all damage awards exceed $1,000,000, while only 50% made estimates in line with Rand Corp. studies demonstrating that less than 6% of all damages awards are greater than $1,000,000. However, it was also found that, if jurors thought high awards were frequent, they awarded more in damages in a mock trial. It seemed that jurors used their estimates of high verdicts as a “benchmark” by which to make their own determinations. Other findings of this study were: 91% of jurors thought there were too many lawsuits, and 58% said lawyers encourage suits. The jurors agreed that as verdicts increase insurance premiums increase; 62% said verdicts are too high, and 48% said an insurance crisis exists. Jurors also agreed that people often underestimate pain and suffering.
Another study found evidence for a widespread perception that there is a litigation crisis.19 These researchers noted that the increase in litigation is: 1) a result of population growth, and 2) due to an increase in government actions. The study revealed that, in fact, some categories of litigation have decreased; studies of injuries show that only a small number of injuries result in litigation. Perceptions of the growth of suits and “excessive awards” create a phenomenon in which juries who believe a crisis exists award lower damages. Related perceptions included the belief that the civil justice system is in trouble. Public knowledge of courts was found to be low and to vary among demographic groups. Jurors who believed most strongly that there is a litigation crisis were more likely to have the following characteristics: low sense of political efficacy, low belief in a just world, a high degree of claims consciousness (i.e., tended to report consumer and other problems more frequently and/or consult lawyers more frequently), more likely to be white, protestant, and older. The authors suggested that over time, people have come to expect fair compensation and therefore younger people see current litigation trends as consistent with this belief.

E. Perception of Attorneys

Related to tort reform issues is the public’s perception of attorneys. Attorneys are aware that their public perception is, at best, poor. In fact, the membership of the Florida Bar rates “poor image/perception” as the “most serious problem faced by the law profession today”.20 This survey of attorneys demonstrates that attorneys perceive that public opinion of the legal profession has become less favorable in the last decade. In 1993 the membership study reported that 75% of the attorneys responding said that public opinion of lawyers had become less favorable over the past decade; two years later, the 1995 study reported that 87% of attorneys agreed with this statement.

Though no direct comparison exists, similar studies of jurors and citizens demonstrates that these attorneys are on target in their understanding of their public image.21 It was reported that only 12% of the surveyed respondents had a “positive” general feeling about lawyers, 40% were neutral, and 48% were negative or very negative. This study also reported similar findings regarding low public confidence in the legal/court system, with only 40% of the respondents rating Florida Courts as good to excellent; and 13% claiming to be extremely or very confident in Florida Courts (the news media, public schools, and local government were among those rated more favorably). (This study was conducted in May and June 1996 – respondents were also asked if the O.J. Simpson trial had changed attitudes about Florida’s Courts and 83% said “not at all”.) Finally, a recent study found that 25% of respondents would say that they trust lawyers more than they do the average person. At the same time, only 50% of the respondents were shown to have favorable impressions of lawyer honesty.22
F. Attorney Advertising

This hot button for attorneys has, as expected, generated some research. Attorneys and jurors were compared regarding their attitudes toward attorney advertising.23 Attorney attitudes varied with length of time in practice, firm size, and community of practice. Consumers were more favorable towards ads than were attorneys, as consumers found that ads were helpful in providing greater amounts of information with which to make decisions. Consumers, thus, did not agree with the majority of attorneys in thinking that advertising decreases the public’s image of attorneys. The Florida Bar’s 1995 member survey reports that 57% of Florida attorneys oppose attorney advertising.24

G. Perceptions of Jurors Regarding Jury Service

Attitudes of prospective jurors who had served on previous juries were compared with those of citizens who had not served.25 There was a perceptual difference in these dichotomous groups; jurors with prior service were more likely to see serving as a meaningful civic duty. However, there was a difference in the expectations of the jurors with regard to the use of their time; those jurors without prior service must be assured that their time will not be needlessly wasted.
The notion that less experienced jurors are less likely to convict was examined in another study.26 There was a modest, but significant, increase in probability of conviction as the number of jurors with prior experience increased on a given jury. Given that some research has shown that the first ballot determines final verdict 90% of the time,27 the finding regarding prior service may have a greater impact on trial results if this tendency increases.

H. Jurors’ Reliance on Attitudes or Schemas for Decision Making

Some studies have examined the relationship between jury instructions and trial outcome. One such study noted that pre-instructed juries in both civil and criminal trials seemed better able to make distinctions in the evidence.28 It was asserted that pre-instructions provide jurors with a legally relevant schema to make their decisions. These authors noted that “jurors tend to rely on heuristics when the evidentiary content or task is complicated” (p. 15).
Heuristics are common sense reasoning strategies employed by laypersons. Heuristics are often based on life experiences and may or may not be accurate. People have scenarios or inner-scripts (for example, experiences, good or bad, with police officers).29 These scripts cannot be re-written for them during voir dire or opening statements. Scripts may be personal, cultural, and may come from a combination of factors, which are not conscious. Some scripts, heuristics, and attitudes may be contradictory with one another, but given the uncertainties present at trial, they are a method for dealing with new, and possibly complex, information. Jurors focus on what is salient to them during the decision making process.30
Because attorneys think inductively (and assume others do as well), they present bits and pieces of evidence all the while expecting jurors to come to reasoned conclusions from these pieces.31 In contrast to what most attorneys believe, most people make an immediate judgment and seek evidence or information to confirm their position. “No one is ever unbiased and intellectually neutral. As human beings we bring into any situation an inventory of past experiences, attitudes, values, beliefs, and traditions learned at an early age and reinforced throughout our adult life.”32 (p.2) These beliefs form a “lens” through which we see and understand.

I. Personality Variables

Psychologists have spent considerable effort in the study of personality. As this relates to jurors, variables such as authoritarianism (specifically legal authoritarianism) have been shown to have a positive correlation with a tendency to convict.33 An empirical relationship has been found between acquittal proneness and liberalism and conviction proneness and conservatism.34 In this research, it was possible to distinguish between persons committed to procedural due process and due process/crime control. Mock jurors who were committed to procedural justice were more likely to judge a defendant equivalently in terms of conviction rate and were able to disregard illegal evidence.

III. Results of the Present Study

As stated previously, the present study was undertaken to reveal areas of similarity and areas of difference between attorneys and jury eligible citizens. A second goal of the research was to compare the five types of attorneys in our sample (plaintiff personal injury, defense personal injury, commercial, criminal prosecution and criminal defense) on the wide variety of areas which our survey assessed. This latter comparison allowed us to evaluate which type of attorneys are most closely aligned with jurors in life experiences, attitudes, values, and beliefs.

For purposes of simplification, the 57 items on the questionnaire were broken into the following categories: demographics; life experiences; lifestyle; health behavior; personality; tort/lawsuit issues; and locus of control. In addition, results were of two possible types: (1) statistically significant, with attorneys and jurors responding in different (often opposite) patterns; and (2) non-significant, reflecting similarity between attorneys and jurors. The results of our analyses demonstrated significant differences between attorneys and jurors on 49 out of the 57 survey questions (86% of the total number of questions). On only 8 items (14% of the total) were attorney and juror responses similar (these are the “non-significant” results).
The results are summarized in tabular form and presented below. Significant Results*
Demographics 35
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Age

54% between 25 &
24; all age categories represented approximately equally 93% between 25 & 54 93% between 25 & 54 96% between 25 & 54 98% between 25 & 54 97% between 25 & 54
Race
87% White 91% White 90% White 96% White 89% White 88% White
Gender 48% Male
52% Female 85% Male
15% Female 69% Male
31% Female 65% Male
35% Female 74% Male
26% Female 57% Male
43% Female
Marital Status 60% Married
14% Never Married
16% Divorced/Separated
10% Widowed 71% Married
22% Never Married
7% Divorced/Separated 66% Married
28% Never Married
6% Divorced/Separated 69% Married
19% Never Married 12% Divorced/Separated 53% Married
29% Never Married
16% Divorced/Separated
2% Widowed 62% Married
33% Never
Married
5% Divorced/
Separated
Income 54% earn less than $35K
73% earn more than $75K 59% earn more than $75K 54% earn more than $75K 62% earn more than $55K 59% earn more than 55K
*Attorneys and jurors significantly different in their responses Significant Results*
Demographics (con’t.)

Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution

Education Mostly High School Graduates or Some College
J.D. J.D. J.D. J.D. J.D.
Occupation Variety of occupations – mostly Business Owners, Clerical, Homemakers, Sales, & Teachers
Attorney Attorney Attorney Attorney Attorney
Spouse’s Occupation Variety – mostly Business Owners, Sales, Teachers

Healthcare, Homemaker, Legal, Teacher Homemaker, Legal, Teacher Legal Legal, Teacher Legal, Sales, Teacher
Children 44% have 2 or 3 children 39% no children 41% no children 54% no children 54% no children 47% no children
*Attorneys and jurors significantly different in their responses
Significant Results*
Life Experiences

Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Political
Philosophy
29% Conservative
56% Middle of road
15% Liberal 24% Conservative
53% Middle of road
23% Liberal 41% Conservative
52% Middle of road
7% Liberal 19% Conservative
73% Middle of road
8% Liberal 16% Conservative
44% Middle of Road
40% Liberal 41% Conservative
47% Middle of Road
12% Liberal
Jury
Experience 73% None 91% None 90% None 96% None 82% None 88% None
Lawsuit
Experience 81% Never been a party 54% Have been a party 72% Never been a party 54% Have been a party 47% Have been a party 62% Never been a party
Supervisory Experience 52% Have supervised 6 or more people 56% Have supervised 1-5 people 59% Have supervised
1-5 people 69% Have supervised 1-5 people 39% Have supervised 1-5 people 47% Have supervised 1-5 people

Specialized
Training Accounting, Banking, Bookkeeping, Communications, Computers Law Law Law Law Law
*Attorneys and jurors significantly different in their responses Significant Results*
Life Experiences (con’t.)
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Business Management Experience 50% Never managed
34% Used to manage
16% Currently manage
36% Never managed
11% Used to manage
53% Currently manage 45% Never managed
38% Used to manage
17% Currently manage 50% Never managed
23% Used to manage
27% Currently manage 55% Never managed
24% Used to manage
21% Currently manage 62% Never managed
34% Used to manage
4% Currently manage
Business Ownership Experience

Never owned 56%
Used to own 29%
Currently own 15% Never owned 36%
Used to own 9%
Currently own 55% Never owned 55%
Used to own 31%
Currently own 14% Never owned 50%
Used to own 15%
Currently own 35% Never owned 59%
Used to own 23%
Currently own 18% Never
owned 77%
Used to own 20%
Currently
own 3%
Crime Victimization Yes 53%
No 47% Yes 78%
No 22% Yes 79%
No 21% Yes 69%
No 31% Yes 86%
No 14% Yes 86%
No 14%
*Attorneys and jurors significantly different in their responses
Significant Results*
Lifestyle

Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Investments** 50% Bonds
50% CD’s
44% Real estate
42% Gems/Precious metals
42% Stocks
40% Mutual funds
35% Art/Antiques
30% Treasury bills 30% Art/Antiques
29% Treasury bills
25% Real estate
None None None None
Type of Residence Single family
home 61% Single family
home 83% Single family
home 69% Single family
home 69% Single family home 72% Single family home 68%
Length of Residence More than 10 to
20 Years 29%
More than 20 Years 24% More than 10 to 20 Years 24%
More than 20 Years 32% More than 10 to 20 Years 3%
More than 20 Years 44% More than 10 to 20 Years 15%
More than 20 Years 42% More than 10 to 20 Years 28%
More than 20 Years 22% More than 10 to 20 Years 20%
More than 20 Years 27%
Entertainment** Movies, Fine dining, Nightclubs/bars, Sporting events, Concerts, Plays, Theme parks, Museums Sporting Events None None None None
Hobbies** Fishing, Boating, Leisure, Sports, Gardening, Dancing, Exercising, Bicycling, Reading, Photography, Arts/music Scubadiving, Exercising, Skiing, Reading, Arts/Music None
None Exercising,
Reading, Arts/music Exercising, Skiing, Reading, Arts/music
*Attorneys and jurors significantly different in their responses
**25% or higher responses reported
Significant Results*
Lifestyle (Con’t.)
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Volunteering

Never 26%
Former 40%
Current 34% Never 9%
Former 45%
Current 46% Never 10%
Former 52%
Current 38% Never 0%
Former 42%
Current 58% Never 6%
Former 57%
Current 37% Never 9%
Former 42%
Current 49%
Organizations** Educational, Religious, Service, Social Educational, Fraternal, Professional, Religious None None Professional Educational, Professional, Religious, Service
Religious Activity Never 21%
Sometimes 24%
Often 55% Never 24%
Sometimes 45%
Often 31% Never 10%
Sometimes 65%
Often 25% Never 0%
Sometimes 66%
Often 34% Never 39%
Sometimes 40%
Often 21% Never 16%
Sometimes 55%
Often 39%

*Attorneys and jurors significantly different in their responses

**25% or higher responses reported

Significant Results*
Health Behavior

Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
General Health:
Excellent 56% Excellent 78% Excellent 72% Excellent 81% Excellent 64% Excellent 67%
Hospitalization: Never 7%
Childbirth or Minor illness 50%
Major illness 43% Never 14%
Childbirth or Minor illness 52%
Major illness 34% Never 14%
Childbirth or Minor illness 52%
Major illness 34% Never 12%
Childbirth or Minor illness 58%
Major illness 30% Never 19% Childbirth or Minor
illness 63%
Major illness 18% Never 17% Childbirth or Minor illness 63%
Major illness 20%
Seatbelt use:
Never 6%
Sometimes 32%
Always 62% Never 1%
Sometimes 28%
Always 71% Never 3%
Sometimes 31%
Always 66% Never 0%
Sometimes 24%
Always 76% Never 6%
Sometimes 45%
Always 49% Never 2%
Sometimes 24%
Always 74%
Smoking:
Never 36%
Former 37%
Current 27% Never 63%
Former 26%
Current 11% Never 79%
Former 14%
Current 7% Never 58%
Former 42%
Current 0% Never 41%
Former 37%
Current 22% Never 65%
Former 18%
Current 17%

*Attorneys and jurors significantly different in their responses
Significant Results*
Health Behavior (con’t.)
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Alcohol Consumption: Never/former 25%
Sometimes 59%
Often 16% Never/former 11%
Sometimes 56%
Often 33% Never/former 3%
Sometimes 72%
Often 25% Never/former 4%
Sometimes 58%
Often 38% Never/former 13%
Sometimes 55%
Often 32% Never/former 9%
Sometimes 72%
Often 19%
Traffic Accidents: Never 23%
Minor 58%
Serious 19% Never 7%
Minor 66%
Serious 27% Never 10%
Minor 65%
Serious 25% Never 4%
Minor 66%
Serious 30% Never 11%
Minor 65%
Serious 24% Never 10%
Minor 73%
Serious 17%
*Attorneys and jurors significantly different in their responses Significant Results*
Personality
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Focus on:
Details 60%
Big picture 40% Details 41%
Big picture 59% Details 38%
Big picture 62% Details 65%
Big picture 35% Details 38%
Big picture 62% Details 48%
Big picture 52%
Work preference
One thing at a
time 38%
Multi-task 62% One thing at a
time 20%
Multi-task 80% One thing at a
time 17%
Multi-task 83% One thing at a
time 27%
Multi-task 73% One thing at a
time 22%
Multi-task 78% One thing at a time 26%
Multi-task 74%
Decision making Quick 39%
Slow 61% Quick 53%
Slow 47% Quick 69%
Slow 31% Quick 42%
Slow 58% Quick 51%
Slow 49% Quick 54%
Slow 46%
Money philosophy
Free spender 46%
Tight with
money 54% Free spender 64%
Tight with
money 36% Free spender 66%
Tight with
money 34% Free spender 50%
Tight with
money 50% Free spender 50%
Tight with
money 50% Free spender 52%
Tight with
money 48%

*Attorneys and jurors significantly different in their responses Significant Results*
Lawsuit / Tort Issues
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Automobile manufacturers Hide product defects from public Agree 83%
Disagree 17%
Agree 95%
Disagree 5% Agree 53%
Disagree 47% Agree 62%
Disagree 38%
Agree 85%
Disagree 15% Agree 82%
Disagree 18%

There should be a cap on pain & suffering damages Agree 62%
Disagree 38% Agree 5%
Disagree 95% Agree 47%
Disagree 53% Agree 31%
Disagree 69% Agree 24%
Disagree 76% Agree 54%
Disagree 46%
Most eyewitness testimony is accurate Agree 53%
Disagree 47% Agree 48%
Disagree 52% Agree 46%
Disagree 54% Agree 50%
Disagree 50% Agree 24%
Disagree 76% Agree 67%
Disagree 33%
I give benefit of doubt to:
Plaintiff 39%
Defendant 61%
Plaintiff 91% Defendant 9%
Plaintiff 25%
Defendant 75% Plaintiff 48%
Defendant 52% Plaintiff 23%
Defendant 77% Plaintiff 47%
Defendant 53%
Government can pay what it wants when it takes land in eminent domain action Agree 9%
Disagree 91% Agree 6%
Disagree 94% Agree 3%
Disagree 97% Agree 8%
Disagree 92% Agree 4%
Disagree 96% Agree 4%
Disagree 96%
I would hesitate to turn a plaintiff’s misfortune into a fortune Agree 64%
Disagree 36% Agree 20%
Disagree 80% Agree 69%
Disagree 31% Agree 54%
Disagree 46%
Agree 31%
Disagree 69% Agree 62%
Disagree 38%

*Attorneys and jurors significantly different in their responses Significant Results*
Lawsuit / Tort Issues (con’t.)

Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Hospitals owe a greater duty to their patients than other organizations owe to their customers Agree 81%
Disagree 19% Agree 90%
Disagree 10% Agree 83%
Disagree 17% Agree 80%
Disagree 20% Agree 88%
Disagree 12% Agree 83%
Disagree 17%
Insurance companies care more about making money than taking care of policy holders Agree 79%
Disagree 21% Agree 98%
Disagree 2% Agree 75%
Disagree 25% Agree 84%
Disagree 16% Agree 95%
Disagree 5%
Agree 98%
Disagree 2%

Intent of the parties who sign contract more important than what is written Agree 45%
Disagree 55% Agree 57%
Disagree 43% Agree 45%
Disagree 55% Agree 35%
Disagree 65% Agree 49%
Disagree 51% Agree 58%
Disagree 42%
Most medical malpractice lawsuits arise from an honest mistake made by a doctor Agree 69%
Disagree 31% Agree 54%
Disagree 46% Agree 68%
Disagree 32% Agree 69%
Disagree 31% Agree 53%
Disagree 47% Agree 61%
Disagree 39%
Jury verdicts have the effect of rewarding injured party Agree 73%
Disagree 27% Agree 61%
Disagree 39% Agree 72%
Disagree 28% Agree 70%
Disagree 30%
Agree 74%
Disagree 26% Agree 69%
Disagree 31%

*Attorneys and jurors significantly different in their responses
Significant Results*
Lawsuit / Tort Issues (con’t.)
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
I am suspicious of citizens who sue in eminent domain cases Agree 10%
Disagree 90%
Agree 1%
Disagree 99% Agree 3%
Disagree 97%
Agree 0%
Disagree 100% Agree 2%
Disagree 98%
Agree 5%
Disagree 95%

Most personal injury suits are worthwhile Agree 44%
Disagree 56% Agree 95%
Disagree 5% Agree 39%
Disagree 61% Agree 48%
Disagree 52% Agree 64%
Disagree 36% Agree 38%
Disagree 62%
Most medical malpractice suits are worthwhile Agree 53%
Disagree 47% Agree 97%
Disagree 3% Agree 43%
Disagree 57% Agree 60%
Disagree 40% Agree 71%
Disagree 29% Agree 50%
Disagree 50%
*Attorneys and jurors significantly different in their responses Non-Significant Results***
Life Experiences
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Military experience Never served 72%
Have served 28% Never served 77%
Have served 23% Never served 83%
Have served 17% Never served 89%
Have served 11% Never served 86%
Have served 14% Never served 88%
Have served 12%
Lifestyle
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution

Neighborhood
Urban 47%
Rural 11%
Suburban 42% Urban 39%
Rural 10%
Suburban 51% Urban 41%
Rural 0%
Suburban 59% Urban 46%
Rural 4%
Suburban 50% Urban 33%
Rural 14%
Suburban 53% Urban 35%
Rural 9%
Suburban 56%

News Sources
TV,
Radio,
Newspaper, Magazines,
Talking to Friends TV,
Radio,
Newspaper, Magazines,
Talking to Friends
TV,
Radio,
Newspaper, Magazines,
Talking to Friends TV,
Radio,
Newspaper, Magazines,
Talking to Friends TV,
Radio,
Newspaper, Magazines,
Talking to Friends TV,
Radio,
Newspaper, Magazines,
Talking to Friends

***Attorneys and jurors similar in their responses

Non-Significant Results***
Personality
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Decision making
Logical 91%
Emotional 9% Logical 87%
Emotional 13% Logical 90%
Emotional 10% Logical 100%
Emotional 0% Logical 84%
Emotional 16%
Logical 86%
Emotional 14%
Planning
Long range 75%
Spur of moment 25% Long range 70%
Spur of moment 30% Long range 76%
Spur of moment 24% Long range 77%
Spur of moment 23% Long range 63%
Spur of moment 37% Long range 74%
Spur of moment 26%

Locus of Control
Jurors Plaintiff PI Defense PI Commercial Criminal
Defense Criminal Prosecution
Success depends more on: Skill/hard
work 93%
Luck/fate 7% Skill/hard
work 97%
Luck/fate 3% Skill/hard
work 93% Luck/fate 7% Skill/hard
work 89%
Luck/fate 11% Skill/hard
work 88%
Luck/fate 12% Skill/hard
work 88%
Luck/fate 12%
My success depends on:
What I do to control life 93%
Fate/destiny 7% What I do to control life 92%
Fate/destiny 8% What I do to control life 97%
Fate/destiny 3% What I do to control life 89%
Fate/destiny 11% What I do to control life 89%
Fate/destiny 11% What I do to
control life 88%
Fate/destiny 12%
I usually:
Get what I want
easily 40%
Have to work hard to succeed 60% Get what I want
easily 43%
Have to work hard to succeed 57% Get what I want easily 35%
Have to work hard to succeed 65% Get what I want
easily 58%
Have to work hard to succeed 42% Get what I want easily 50%
Have to work hard to succeed 50% Get what I want
easily 52%
Have to work hard to succeed 48%
***Attorneys and jurors similar in responses
IV. Discussion of the Findings

The results of the present study reveal that jurors are more representative than attorneys of the population as a whole in terms of age, race, gender, marital status, education, income, occupations (including spouse’s), and children.36 Mock jurors are more likely to have been a juror on a real case than attorneys, however, attorneys are more likely to have been personally involved as party to a lawsuit. Perhaps, due to the extensive travel demands attorneys face, attorneys are considerably more likely to have been in automobile accidents and victims of crime. These findings demonstrate the familiarity of attorneys with many aspects of the legal system outside of those directly related to working as an attorney and well beyond the experiences of average jurors. Many of the findings demonstrate that jurors’ experiences are more wide ranging than attorney’s experiences. Comparisons of jurors and attorneys on factors such as investments, entertainment, hobbies, community involvement, and religious activities are illustrative in this regard. While attorneys report to be in better health overall than the jurors, and they are less likely to smoke, and are more likely to wear their seatbelts, they are more likely than jurors to consume alcohol.
The results were examined to determine which attorney types most closely resembled the profile of our prototypical juror. There was no single type of attorney – plaintiff personal injury, defense personal injury, commercial, criminal defense, or criminal prosecution – that closely matched jurors. In some instances, jurors shared traits in common with prosecutors; in others, commercial litigators; in still others, defense personal injury attorneys (jurors appeared to have the least in common with plaintiff personal injury attorneys and criminal defense attorneys) thus, a ramification of our findings is that no one type of attorney appears better able to relate to the jurors in terms of demographics, life experiences, lifestyle, health, personality, or attitudes pertaining to the legal system. Our study lends credibility to the commonsense assumption that jurors and attorneys represent two distinct populations, sharing little in common. It appears, then, that attorneys really do exist in a unique subculture within our society, one which, for the most part, is impenetrable by the average citizen.
In addition to the comparing attorneys and jurors on a variety of characteristics, our analysis allowed us to look at differences among types of attorneys. Examination of the preceding tables yields a general picture of the range of similarities and differences among the various categories of attorneys who participated in our survey. Just as in the attorney to juror comparison, the comparison among attorneys indicates that, in some respects, plaintiffs personal injury attorneys are similar to criminal defense attorneys; in others, defense personal injury attorneys are similar to commercial attorneys; and in others, prosecutors are similar to defense personal injury attorneys. Because no clear pattern emerged when attorneys were examined in this detail, it appears that each subgroup of attorneys is unique in its own right. In fact, in some ways, attorneys are as varied among themselves as they are different from the citizens they represent in Court.

V. Application

This paper has increased your knowledge of past and current research on attorney/juror attitudes and characteristics. In the event that your reaction to this knowledge is “so what?”; or, “why should I, the trial attorney, care about these results?”; or “why are psychologists and other consultants more interested in scientific research than war stories of past cases?”; this portion of the paper will help you in applying our findings to the practice of law.
We believe that it is important for the trial attorney to understand that jurors are not “irrational” or “illogical” in their decisions, rather, they arrive at decisions using different “filters” in the form of life experiences and attitudes. These filters result in variations in the way information is processed and decisions are made. The reflection of the self as seen in the mirror is different for trial attorneys and jurors, especially when it comes to decisions in the legal arena. While the legal arena is comfortable and familiar for attorneys, it is not for jurors, and, as noted earlier, the “system” is viewed by jurors with suspicion. Jurors, therefore, rely on experiences which are not related to the knowledge of law, to make decisions which ultimately affect you and your client. The jurors aren’t simplistic; in fact, they have wide-ranging experiences that provide a solid foundation for their decisions. Our study revealed that attorneys’ life experiences are far more narrow in comparison to jurors’ experiences. On the other hand, while attorneys excel in their knowledge of all things legal, jurors’ knowledge of the law and legal proceedings is limited. They will rely on attorneys to provide them with the proper foundation in the law, but, if it is not provided to their satisfaction, they will draw upon their considerable experiences to arrive at a verdict.
Knowledge gleaned from the current study can be put to use when designing trial strategy. Although you certainly grasp the nuances of your case, and you use inductive reasoning and other forms of logic to arrive at the “only possible solution”, and you isolate extraneous information to paint the big picture, it is important to keep in mind that jurors cannot do any of these things without great difficulty. You must be flexible in your approach to trial, because the jurors are, for the most part, inflexible in their view of the world. Stated another way, it is easier to change or modify the attitudes and behavior of one person, yourself, than to change the opinions of six to twelve jurors. It is highly unlikely, over the course of even the longest trials, that you will change the long held attitudes of the jurors. Because these attitudes are derived from life experiences, you must understand these experiences and make the most out of an imperfect situation.
Trial strategy, of course, includes communication with the jurors. A recent article stated that “the language of a case – words, metaphors, analogies, and other rhetorical devices that could be used with different types of juries should be established before trial, reviewed after voir dire, and changed, if necessary, to reflect what you have learned about the jurors.”37 (p. 64) These outstanding lawyers go on to say “your aim, always, is to use the language that will be most readily accepted, understood, retained, and recalled by the jurors assigned to your case.” (p. 64) The bottom line, then, is to know your audience and, to communicate effectively with the audience – the jury – you must understand the source of their perceptions of the world, the community, and the case; that is, their frame of reference. Understanding the jurors’ frame of reference will allow you to come up with meaningful analogies and not appear out of touch or aloof. Your ability to persuade will increase exponentially!
Because jury eligible citizens appear uninformed and/or misinformed about certain aspects of the law and the legal system, there is merit in educating the general public through “advertising” (of the public service variety), community involvement and other means of reducing the gap of knowledge between attorneys and potential jurors. With regard to perceptions on such issues as tort reform, the effectiveness of the jury system, and the like, there is a wide chasm between public perceptions and what can be demonstrated as “truth”.38 Reducing this gap will lead to better jury decisions, made with full information, instead of media driven misperceptions. It is critical that you evaluate your case, before trial or mediation, with the realities of the differences in yourself and your jury in mind. Pre-trial jury research can be a tremendous aid in this regard because it allows you to understand the issues and to develop the most effective trial presentation based on jurors’ views of the case. Jury research should be case specific, because “generalizing about jurors from case to case is not just inadvisable, it is downright hazardous”39 (p. 17). Moving away from stereotypic decision making and into the realm of scientific understanding will help you focus your lens!
This study represents a first of its kind attempt to compare and contrast two key components of our legal system, the attorneys who try cases and the jurors who ultimately decide them. It is our goal to provide the trial attorney with a different kind of tool, resulting form a new perspective, that will yield more effective courtroom techniques. We consider our efforts a starting point, rather than the final word, in raising the awareness of attorneys regarding the realities they face.
ENDNOTES

1 A preliminary version of this paper, involving a reduced number of attorney and juror participants, was presented at the Academy of Florida Trial Lawyers Spring Ski seminar, Steamboat Springs, Colorado, in February, 1996.

2 L. Ross, D. Green & P. House, The “False Consensus Effect”: An Egocentric Bias in Social Perception and Attribution Processes, 13 Journal of Experimental Social Psychology 279 (1977); J. Van der Plight, Attributions, False Consensus and Valance: Two Field Studies, 46 Journal of Personality and Social Psychology 57 (1984).

3 D.A. Wilder, Perceiving Persons as a Group: Categorization and Intergroup Relations. In D.L. Hamilton (Ed.), Cognitive Processes in Stereotyping and Intergroup Behavior 213 (1981); J.E. Dovidio, S.L. Gaerther, A.M. Isen, and R. Lowrance, Group Representations and Intergroup Bias: Positive Affect, Similarity, and Group Size, 21 Personality and Social Psychology Bulletin 856 (1995).

4 R.C.L. Lindsay, G.L. Wells, & F.J. O’Connor, Mock-Juror Belief of Accurate and Inaccurate Eyewitnesses. A Replication and Extension, 13 Law and Human Behavior 333 (1989).

5 G.L. Rahaim, & S.L. Brodsky, Empirical Evidence Versus Common Sense: Juror and Lawyer Knowledge of Eyewitness Accuracy, 7 Law and Psychology Review 1 (1982).

6 J.C. Brigham & R.K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law and Human Behavior, 19 (1983).

7 J.C. Brigham, The Accuracy for Eyewitness Evidence: How Do Attorneys See it? The Florida Bar Journal, 714 (1981).

8 J.C. Brigham, A. Maas, L.S. Snyder, & K. Spaulding, The Accuracy of Eyewitness Identification in a Field Setting, 42 Journal of Personality and Social Psychology 673 (1982).

9 J.C. Brigham & WolfsKeil, M.P., Opinions of Attorneys and Law Enforcement Personnel on the Accuracy of Eyewitness Memory, 7 Law and Human Behavior 337 (1983).

10 A. Stevens, As Generation X Joins Juries, Lawyers Try to Get Hip, Wall Street Journal, June 5, 1995, B1.

11 A. Stevens, As Generation X Joins Juries, Lawyers Try to Get Hip, Wall Street Journal, June 5, 1995, B1.

12 A. Gerlin, Jury Pickers May Rely Too Much on Demographics, Wall Street Journal, December 16, 1994, B1.

13 P.V. Olczak, M.F. Kaplan & S. Penrod, Attorneys’ Lay Psychology and its Effectiveness in Selecting Jurors: Three Empirical Studies, 6 Journal of Social Behavior and Personality 431 (1991).

14 P.V. Olczak, M.F. Kaplan & S. Penrod, Attorneys’ Lay Psychology and its Effectiveness in Selecting Jurors: Three Empirical Studies, 6 Journal of Social Behavior and Personality 431 (1991).

15 A. Gerlin, Jury Pickers May Rely Too Much on Demographics, Wall Street Journal, December 16, 1994, B1.

16 G. Moran, B.L. Cutler, & A. De Lisa, Attitudes Toward Tort Reform, Scientific Jury Selection, and Juror Bias: Verdict Inclination in Criminal and Civil Trials. 18 Law & Psychology Review 309 (1994).

17 G. Moran, B.L. Cutler, & A. De Lisa, Attitudes Toward Tort Reform, Scientific Jury Selection, and Juror Bias: Verdict Inclination in Criminal and Civil Trials. 18 Law & Psychology Review 309 (1994).

18 E. Greene, J. Goodman, & E.F. Loftus, Jurors’ Attitudes about Civil Litigation and the Size of Damage Awards, 40 The American University Law Review 805 (1991).

19 V.P. Hans, & W.S. Lofquist, Perceptions of Civil Justice: The Litigation Crisis Attitudes of Civil Jurors, 12 Behavioral Sciences and the Law 181 (1994).

20 M..J. Garcia, Membership Attitude Survey. The Florida Bar (1995).

21 The Florida Statewide Public Opinion Survey by the Judicial Management Council of Florida. Florida Statewide Public Opinion Survey, Executive Summary. Judicial Management Council, Committee on Communication and Public Information, (1996); J. Rayburn., Judicial Management Council Report of Focus Group Research (1996).

22 V.H. Starr, Perception of Lawyers, Paper Presented at the Academy of Florida Trial Lawyers Workhorse Seminar (1997).

23 P. Linenberger, & G.W. Murdock, Legal Service Advertising: Wyoming Attorney Attitudes Compared with Wyoming Consumer Attitudes, 17 Land and Water Law Review 209 (1982).

24 M..J. Garcia, Membership Attitude Survey. The Florida Bar (1995).

25 R.M. Durand, W.O. Bearden, & A.W. Gustafson, Previous Jury Service as a Moderating Influence on Jurors’ Beliefs and Attitudes, 42 Psychological Reports 567 (1978).

26 R.C. Dillehay, & M.T. Nietze, Juror Experience and Jury Verdicts, 9 Law and Human Behavior, 179 (1985).

27 R.C. Dillehay, & M.T. Nietze, Juror Experience and Jury Verdicts, 9 Law and Human Behavior, 179 (1985).

28 L. FosterLee, I.A. Horowitz, & M.J. Bourgeois, Juror Competence in Civil Trials: Effects of Preinstruction and Evidence Technicality, 78 Journal of Applied Psychology, 14 (1993).

29 J.W. McElhaney, Trial Lawyers Must Fit Their Cases to the Belief Patterns of Juries, ABA Journal (1995).

30 B.S. Swain, & D.R. Gallipeau, What They Bring to Court: Juror Attitudes in Antitrust Cases, Antitrust (1994).

31 D.E. Vinson, Psychological Anchors: Influencing the Jury, 8 Litigation (1982).

32 D.E. Vinson, Psychological Anchors: Influencing the Jury, 8 Litigation (1982).

33 D.J. Narby, B.L. Cutler, & G. Moran, A Meta-Analysis of the Association Between Authoritarianism and Jurors’ Perceptions of Defendant Culpability, 78 Journal of Applied Psychology, 34 (1993).

34 J.H. Liu, & G.H. Shure, Due Process Orientation Does Not Always Mean Political Liberalism, 17 Law and Human Behavior, 343 (1993).
35 Our demographic results resemble those reported in the Florida Bar’s 1995 membership survey. For example, the Bar’s survey reports its membership as 92% White and 76% Male, 24% Female. As our study consisted of trial attorneys, some variation occurs (see gender as an example). Age and other income variables are very similar to the Bar’s findings.

36 Similar to our survey findings, the 1995 Florida Statistical Abstract (A.C. Pierce (Ed.)) reports state median family income as $32,212. Other comparisons to the FSA show correspondence as well. Many of the percentage responses included in the charts are for the highest percentage response within a category; if you have specific questions about the compiled data, please contact the authors.

37 H. Nations, & L.J. Smith, Watch Your Language!, 32 Trial 64 (1996); L.J. Smith, Courtroom Communications, Paper Presented at the Academy of Florida Trial Lawyers Workhorse Seminar (1997).

38 D.S. Bailis, & R.J. MacCoun, Estimating Liability Risks with the Media as Your Guide: A Content Analysis of Media Coverage of Tort Litigation, 20 Law and Human Behavior 419 (1996).

39 F.G. Belote, Jury Research: Spotting Jurors Who Can Hurt, 12 Litigation (1986).

 

Acknowledgements
The authors would like to thank the following people, law firms, and organizations for their assistance throughout various stages of the research: Academy of Florida Trial Lawyers with special thanks to John Romano, Jeff Liggio, and Richard Slawson for their cooperation in arranging for the participation of 1996 AFTL Workhorse attendees and the 1995 Bad Faith Seminar participants; (with appreciation of the efforts of Jeanie Hinkle, Debbie Sapp, and Jackie Piche` at these conferences); Florida Public Defenders, with special thanks to Skip Babb for the cooperation of the 1996 Public Defenders Summer Conference attendees; Florida State Attorneys – 8th Judicial Circuit – with special thanks to Bill Cervone and Rod Smith – 15th Judicial Circuit – with special thanks to Ted Borris and Barry Krischer for cooperation of CLE program attendees; the Kubicki Draper law firm, with special thanks to Cliff Gorman for arranging the participation of Ft. Lauderdale litigators; the Conrad, Scherer and Jenne law firm, with special thanks to Vicki Grady and Vito Carcioppolo for arranging the participation of litigators; the Holland & Knight law firm – Jacksonville office – with special thanks to Larry Hamilton and Mark Alexander for arranging participation of CLE participants; Hispanic Bar Association of Palm Beach County; special thanks go to Mike Eriksen and Barney Salzberg, for serving as pre-test participants to establish completion parameters; and to Cindy Holloway for assistance throughout all phases of the research.