Litigation Tips Archive

Avoiding Stereotypes in Voir Dire

Most people use stereotypes as quick and easy ways of judging other people. Social psychological research on stereotypes has been conducted for almost 80 years and in general, has revealed that stereotypes often lead to bad decisions. Although, by definition, stereotypes contain a “kernel of truth,” they are conducive to producing judgmental errors because of their reliance on generalizations. Many attorneys rely on generalizations about certain types of people based on gender, race, occupation, and other demographic characteristics. These generalizations, in turn, lead to stereotypic decisions about the type of person who would or would not be a good juror for a particular case. Given that decades of social psychological research have revealed little predictability of jury verdicts based on juror demographics, it should come as no surprise that jury selection based on demographics and stereotypes is likely to be inaccurate. The dangers associated with demographically and stereotype based jury selection are due to: (1) reliance on information that has little basis for predicting verdict; (2) likelihood of failing to exercise a peremptory challenge on someone who should be excused because challenges have been used to strike other jurors based on stereotyping; (3) inability to ask probing questions that allow the attorney to get to know the prospective jurors’ personalities, attitudes, values, beliefs, and life experiences, all of which are more related to verdict than generalities based on stereotypes; and (4) a general tendency to prefer jury selection decisions that are “good enough” instead of accurate. Each prospective juror is a unique person who deserves the attorneys’ and court’s time in finding out whether he or she will be well suited for the case at trial. A “good enough” strategy in jury selection is likely to backfire when important voir dire questions, designed to obtain crucial information, are discounted in favor of finishing jury selection as quickly as possible.

Interestingly, there have been research studies that reveal lawyers’ experience in selecting juries does not necessarily lead to accuracy. In fact, lawyers are accurate in predicting which jurors are favorable to their side of the case 50% of the time, meaning they are performing this important task at chance level, much like the accuracy of predicting the outcome of a coin toss. In addition, research has shown lay persons are as accurate as lawyers when it comes to selecting juries. The primary reason lawyers perform poorly on jury selection decisions is their use of demographics and stereotypes. Avoiding stereotypes requires a major shift in thinking on the part of trial counsel. Asking though provoking questions, most important, open ended questions that require the venire members to do most of the talking, is a skill that must be fine tuned in order to lead to accurate decision making. Selecting the people who will decide the case demands accuracy over “good enough,” or “that one will do,” decisions. Overall, there is more to conducting an excellent voir dire than asking simple questions that demand socially desirable answers.

Contact Magnus for instruction in voir dire techniques that will enhance your accuracy in selecting juries.

People are NOT Reptiles and Reptiles are NOT People

The latest fad among plaintiffs’ lawyers is viewing the people who decide their case, that is, the jury, as comprised of individuals with brains that function in reptilian ways. This fad would be humorous if it was nothing more than an interesting way of describing a certain type of person, in much the same way as members of certain professions are referred to as “sharks” or “snakes,” however, the reptilian view of jurors goes much deeper than that, leading to an erroneous view of the way in which juries make decisions, not to mention human nature as a whole. Magnus Research Consultants does not endorse any view of jurors that does not hold them in high esteem and we have chosen to write a brief overview of our reasons for opposing the premises behind this latest fad in litigation. First, just as there is no scientific basis for the view, held by many attorneys, that demographics predict verdict, there is no scientific basis that the human brain is similar to the reptilian brain. The reptile enthusiasts are touting the validity of their “theory” on outdated neuroscience research from the 1960s. Those of us who have conducted scientific research on the ways in which people make decisions know we humans are far more complex than reptiles and we are not even closely related on the phylogenetic tree! Second, there is no “one size fits all” approach to jury selection and jury persuasion. Adopting an overly simplistic view of people and the decisions they make is likely to lead to mistakes. The “safety” themes endorsed by reptile fans may appeal to some people, but certainly, they are not for everyone. It seems as if some attorneys have jumped on the latest bandwagon out of a desire to make decisions about jurors that are “good enough,” when their decisions should be based on a desire for accuracy.

Magnus’ Director of Research, Dr. Melissa Pigott, has spent decades in the scientific study of human behavior. As a psychologist who works with attorneys on complex cases throughout the U.S.A., Dr. Pigott guarantees her opinions about jurors are based on actual psychological research, not the latest “pop” psychology fiction that is being sold to attorneys.

Contact Magnus for help in understanding that people are people; people are not reptiles.

Background Checks of the Venire

There are a wide variety of methods that can be utilized to obtain information about potential jurors during jury selection. Gone are the days when the trial attorney merely asked voir dire questions then, based on the potential jurors’ answers to the questions, exercised challenges for cause and peremptory strikes. Oral voir dire questioning is, of course, still used during most jury trials and written questions in the form of supplemental juror questionnaires are also used in an increasing number of cases, however, these methods are rarely used absent other forms of investigations into the jurors’ backgrounds. The services of private investigators and others who perform background checks are a valuable supplement to the information provided in the venire members’ answers to the attorneys’ voir dire questions. It is also relatively easy for someone who works for the trial attorneys to conduct searches of potential jurors’ backgrounds by purchasing information readily available on the Internet. Even simpler are in house searches of potential jurors’ social media accounts and GoogleTM or similar databases of public information. Obtaining information from sources other than the jurors’ answers to voir dire questions is essential. This information may yield one or more of the following results: (1) the attorney may find one or more jurors have omitted important details in their answers to voir dire questions; (2) the attorney may obtain information that, although not case specific in nature, may reveal a source of potential bias on the part of one or more jurors; (3) the attorney may uncover dishonesty on the part of one or more jurors in the answers to voir dire questions; (4) the attorney may obtain useful information that enables him/her to inquire about issues of interest to the potential juror; and (5) the attorney may discover that one or more venire members has been blogging or otherwise engaging in outside communications prohibited by the court. Although background searches should be performed prior to seating the jury, it is also important to monitor the jury’s Internet use once the trial is in progress. Even though the jury will have received the court’s admonishment to refrain from using the Internet during the course of the trial, it is unrealistic to expect all of the jurors to comply with the court’s instruction. Therefore, in an abundance of caution, particularly when the trial involves high profile or controversial issues, the jurors should be monitored daily for the duration of the trial. Today’s jurors are more informed than ever before. It is essential for attorneys to embrace the challenges of trying cases to today’s jurors using every tool available. Traditional means of obtaining information about the venire will stop short of providing the attorney with all of the information needed to decide the suitability of potential jurors.

Contact Magnus for information on how to “really get to know” your jury.

There is More to Jury Selection than Demographics

Numerous scientific studies, including one recently reviewed in the ABA Journal, conclude that juror demographics do not predict verdict. Demographics include easily observable characteristics, such as gender, age, and race, plus factors such as occupation, income, education, and residence. Reliance on demographics in voir dire often leads to utilization of stereotypes in deciding who to strike.

Instead of relying on demographics and, ultimately stereotypes, the attorney should base jury selection strategy on jurors’ case specific attitudes, values, and beliefs and their underlying personality dispositions. Case specific questions are the most reliable predictors of how jurors will decide a case.

Call the experts at Magnus for voir dire questions that reveal jurors’ case specific attitudes.

Identifying Stealth Jurors During Voir Dire

There has been recent publicity concerning the issue of “stealth jurors,” that is, jurors who provide socially desirable answers to attorneys’ voir dire questions as a way to be chosen for the jury on a particular case. Stealth jurors are typically people who have a special interest in the outcome of a trial because they have strong political, religious, or moral views about the content of a case, the attorneys who are involved, and/or the litigants; they want to be part of history in a high profile case, including providing information to the media and obtaining a book publishing contract; or they want to right a wrong, even a score, or engage in another form of retribution against the court system. Because stealth jurors have a hidden agenda and are usually adept at keeping their true beliefs a secret, it is usually difficult to identify them, particularly when there are time limits on voir dire imposed by the court. As discussed in Magnus’ February, 2012 postcard, it is imperative for all attorneys to conduct background searches of all potential jurors prior to the jury being sworn. Background searches are the first tool in uncovering information regarding a stealth juror. Often, a relatively simple Internet search can reveal information that reveals a venire person has been less than truthful during oral questioning. Other times, a background search will yield important information about a potential juror related to group affiliations, criminal records, occupational licenses, etc. that, because they are unrelated to the case at issue, will never be inquired about by either the court or the attorneys who are trying the case. Background searches are an absolute requirement in the courtroom of today. The second most valuable tool in uncovering information a stealth juror would prefer to keep to himself/herself is a Supplemental Juror Questionnaire (SJQ). A carefully worded SJQ will ask important background questions in a nonthreatening manner, often imbedded within nonessential questions, that elicits honest answers, as opposed to socially desirable responses.

 

Another function of an SJQ is in the validation of jurors’ answers to oral questions posed by counsel, in a written format, to determine whether there is consistency across the responses. Considerable social psychological research has revealed a tendency on the part of most people to answer written questions (as long as they are properly constructed), posed on an individual basis, in a more open and honest fashion than oral questions that must be answered in front of other people. The third way to uncover stealth jurors is to retain the services of a professional jury consultant, preferably a consultant with a Ph.D. in psychology, sociology, or communications, and who is an expert in interpreting human behavior. In particular, psychologists are trained listeners who are skilled in interpreting what a person “really means” based on both what is said  as well as what is not said. Attorneys have extremely valuable trial skills, but not included among their skill set is knowing the nuances of human behavior. If a professional jury consultant is part of the trial team, it is important for the consultant to be permitted by the attorneys who have retained him/her to express opinions about the prospective jurors without the attorney “leading” the consultant to draw a conclusion the attorney wants to hear. Attorneys’ personalities often over power psychologists, who can be dissuaded from expressing an honest opinion about a stealth juror. In conclusion, there are no simple answers regarding the identification of stealth jurors, who are becoming increasingly common and problematic in both civil and criminal trials. Using a variety of tools is the best way to ferret out a stealth juror before he/she destroys your case.

 

Contact Magnus for our expertise in the psychology of understanding human behavior.

Juror Demographics: Attorneys Versus Psychologists

Substantial debate has persisted for many years between attorneys and psychologists on the issue of juror demographics. For over 100 years, attorneys have received advice from other attorneys suggesting that demographic factors (such as gender, race, age, etc.) are predictive of verdict. This type of jury selection advice, focusing on notions which are often sexist, racist, and ageist, has attained a “folklore” status by virtue of being passed along across generations of attorneys. Psychological research, in contrast, has largely been ignored by teachers of trial advocacy. It is a commonly accepted fact within psychology, and other social sciences, that demographic characteristics are not predictive of verdict. Focusing on demographics produces stereotypical judgments which, in turn, lead to erroneous decision making. Jurors’ case specific attitudes, rather than demographics, ultimately determine how they will decide a case.

Call the experts at Magnus to change your focus from demographics to case specific attitudes.

A Surprising Effect of Similarity

In general, people like those who are similar to themselves due to perceived familiarity. There is a major exception to this rule, however. A process known by psychologists as defensive attribution recognizes a tendency for people to hold victims of misfortune responsible for their fate; this tendency is pronounced when the victim is similar to the observer and when the consequences are severe. Defensive attribution occurs because, the more one is personally threatened by an injustice, the more one needs to protect oneself from believing one could suffer the same misfortune. Defensive attribution has obvious implications for jury selection strategy: favorable jurors may not be who you think they are!

Call Magnus to learn more about the science of jury selection.

Voir Dire and the “Problem Client”

Just as there are no perfect people (or attorneys!), rarely does an attorney encounter a “perfect” client. Many clients, in fact, have serious problems that negatively impact the way they are perceived by juries. These problems include psychological disorders (including those related to the stress resulting from the event leading to the lawsuit), to prior criminal convictions, to I.R.S. disputes. Many attorneys attempt to ignore problem issues during voir dire, instead preferring to educate the jury in later parts of the trial. This strategy can backfire because jurors have not been questioned on their attitudes about the problem area(s). Asking potential jurors about their attitudes toward a client’s problems not only allows the attorney to de-select jurors with negative attitudes; it can help desensitize jurors to repeated mentions of the problem after voir dire.

Ask the experts at Magnus for more information on voir dire and the “problem” client.

Judge’s Expectations During Voir Dire

Voir dire is a difficult process. It is made even more difficult by attorneys’ reluctance in inquiring about the judge’s expectations. All judges have expectations about important issues such as: the time each attorney has to ask questions; the seating arrangement of the venire; the movement of jurors within the panel once a strike is exercised; whether a written juror questionnaire will be permitted; where the attorneys may stand during voir dire; and how the striking process will be conducted. The most effective litigators know that asking the judge about his/her expectations regarding the voir dire process makes jury selection considerably more efficient and effective.

Contact Magnus to learn more about streamlining your voir dire.

Case Specific Voir Dire

Over the past decade, social scientists and legal scholars have conducted considerable research on the ability of jurors’ answers to voir dire questions to predict verdict. This research has consistently revealed that jurors’ answers to case specific questions are the best indications of jurors’ predispositions. The next best predictor of jurors’ predispositions are personality based questions that provide a view into jurors’ underlying characteristics. Research has also shown jurors’ demographic characteristics to be the worst predictors of verdict. The reason demographics are poor predictors of verdict is obvious: people who share demographic traits are fundamentally different as individuals. Nothing, including using sophisticated computer software designed to profile jurors based on their demographic characteristics, can replace a thoughtful voir dire approach that assesses how jurors respond to the key case issues.

Contact Magnus to obtain a complimentary publication on voir dire mistakes and how to avoid them.