Litigation Tips Archive

Jurors’ Pre-existing Knowledge of Burdens of Proof

Due to the proliferation of television crime dramas and other media characterizations of the legal
arena, most of today’s jurors are familiar with the burden of proof in criminal cases. Magnus Research Consultants has worked on numerous criminal matters; overall, we have observed our mock jurors and other research participants taking the “beyond a reasonable doubt” burden of proof seriously during their deliberations. In addition, it appears most of the jury eligible citizens who participate in our mock trials, surveys, and focus groups have a reasonably good understanding of the reasonable doubt standard and its implications for both the prosecution and defendant in criminal cases.

On the other hand, the majority of mock jurors and other research participants do not understand there is a different standard of proof in criminal and civil cases; many of them believe the burden of proof in civil cases is “beyond a reasonable doubt.” This erroneous belief creates considerable confusion during their deliberations. It occurs despite the fact they have been instructed on how to apply the “greater weight of the evidence” standard prior to their deliberations and are provided with the jury instructions during their deliberations. Their confusion stems from the fact that it is difficult for most people to put aside long term beliefs and opinions when they are provided with information that disconfirms their (erroneous) ways of viewing the world. The consequence of jurors’ failure to understand the standard of proof in civil cases and the resulting misapplication of the standard of proof in criminal cases often leads them to hold the plaintiff in a civil case to a much higher standard than is required. In some instances, the jurors also improperly believe the defendant has to prove his/her/its case, in much the same way as the plaintiff must prove a case. Magnus has witnessed numerous mock jurors spending a substantial amount of time discussing the plaintiff’s burden of proof during their deliberations. And, although these mistakes can be corrected when they are made within the context of a mock trial or other type of jury research, they go unnoticed and, therefore, uncorrected, in the deliberations on actual trials because there is no one other than the members of the jury who is present during their deliberations. Given the close approximation of the composition of mock jurors to the actual jurors on the cases in which we are involved, it is with certainty that we believe trial jurors become as confused about the standard of proof as the mock jurors.

Attorneys who try civil cases, particularly on behalf of plaintiffs, are cautioned to instruct the jury on the greater weight of the evidence as well as to caution them about the misapplication of the beyond a reasonable doubt standard. Failure to provide a detailed explanation regarding the burden of proof is likely to create confusion during the deliberations and lead to an unanticipated outcome in the trial.

Contact Magnus to schedule your next mock trial, on a civil or criminal case.

Juror Differences in “Red” and “Blue” Counties

In recent years it has become customary to categorize Florida residents by “red” and “blue” voting patterns. Magnus has taken this analysis one step further by examining the views of jury eligible citizens in these two types of counties. Our analysis yielded the following results:

• As expected, jurors in red counties were more likely to identify themselves as politically conservative and jurors in blue counties were more likely to identify themselves as politically liberal.

• Although jurors in both red and blue counties indicate a tendency to give the benefit of the doubt to the defendant in a civil lawsuit, jurors in blue counties were less likely to do so than jurors in red counties.

• There were no statistically significant differences between jurors in red and blue counties in terms of their money orientation, with about half of the jurors indicating they are “tight with money” and half identifying themselves as “free spenders”.

The conclusion we draw from these results is that, although there are regional differences in jurors’ general attitudes, individual differences must be considered in their relationship to verdict.

Contact Magnus for more information on jurors’ attitudes.

Defendants Receive Benefit of Doubt

All of the jury eligible citizens who serve as mock jurors for Magnus complete extensive surveys prior to attorneys’ presentations of case facts. One survey question requires mock jurors to state an overall preference between plaintiffs and defendants in civil lawsuits.  Using our Venue DataLink software, we have found that, overwhelmingly, mock jurors give the benefit of the doubt to civil defendants.  While the percentage of mock jurors who give the benefit of the doubt to the defendants varies slightly depending on where they live, overall, approximately two thirds of those surveyed state that they give civil defendants the benefit of the doubt before they know anything about the case.  This preference has obvious implications for the way in which jurors view civil litigants.

Heuristical Decision Making

Magnus’ research reports have always contained a section titled “Heuristics” which provides a unique insight into jurors’ perceptions of our clients’ cases.  Heuristics are analogies, metaphors, and other commonsense ways of processing complex information.  When people, including jurors, perceive information for the first time, particularly unfamiliar and/or complex information, they use their life experiences to make sense of the new information.  Heuristics often involve shortcuts in the reasoning process, such as “this reminds me of the time…” and they may or may not be accurate representations of reality.  Magnus believes an understanding of jurors’ heuristical decision making is important for attorneys’ ability to present their case facts in a manner to have the widest appeal to the jury.

A recent book, entitled “On Second Thought,” authored by Wray Hebert, analyzes the way in which heuristics and other mental shortcuts can explain people’s decisions in a variety of situations.  Wray Hebert is a science writer with extensive experience in psychology and, as such, he has provided extensive scientific references to the heuristics phenomena he has included in his book.  He argues that even groups decisions such as jury verdicts can largely be understood via an awareness of heuristics. 

The publication of the book, “On Second Thought” largely confirms what Magnus Research Consultants’ Director of Research, Dr. Melissa Pigott, has been telling our clients for decades: Jurors’ decisions are based on far more than anything the attorneys say about the legal aspects of a lawsuit.   Often, our first time clients remark that they are surprised about how little time the mock jurors spend discussing the jury instructions, legal theories, etc. of the case but nonetheless seem to come to a decision (although not necessarily a logical one) that represents the essence of the case, in the best way possible for the particular group of jurors.  It is only through an understanding of the ways in which jurors make decisions, including their utilization of decision making shortcuts such as heuristics, that jury decisions can be appreciated for all they contain.
Contact Magnus to find out what heuristics the jury is likely to employ on your next case.

Defensive Attribution in Jury Selection

Attribution theory is one of the oldest social psychological theories. Attribution theory explains the way in which people explain their own, and others’, actions. According to attribution theory, most people explain their own actions (particularly those with a negative outcome) in terms of external causes, such as other people, the environment, etc. In contrast, most people attribute other people’s actions to internal forces within the other person, such as the other person’s personality, “character,” level of intelligence, etc. These types of attributions often lead to what social psychologists call “the fundamental attribution error,” because they lead to mistaken judgments about the causes of our own and others’ behavior. The contrast is something like, “the devil made me do it” versus “that person is stupid” (careless, reckless, etc.) in explaining own vs. others’ behaviors relative to similar situations.

A primary component in explaining the cause of others’ behavior, particularly when an outcome is negative for the actor, is defensive attribution. Defensive attribution occurs most often when the observer and the actor are share several key traits. On the surface, one might believe similarity would lead to more accurate attributions of the actor’s behavior by the observer, however, decades of social psychological research have revealed quite the opposite result. The process of defensive attribution leads an observer who is similar to the actor to judge the actor’s behavior in a more negative light than the same behavior of a dissimilar actor. The reason for this seemingly unusual result is that, because of the desire to protect oneself from the same negative fate as the actor, the observer will attribute the actor’s negative outcome as having been caused by something unique to the actor. The process of defensive attribution allows the actor to believe that he/she will never experience the same negative outcome because he/she lacks the fundamental trait of the actor that caused the negative outcome.

Applied to jury selection and the process of de-selecting jurors, many attorneys erroneously believe prospective jurors who are very similar to their client will empathize with the client or in other ways decide the case in a manner benefitting the person with whom they share important characteristics. In reality, the juror who shares many traits in common with a litigant is often the biggest critic of the litigant’s actions. Because of the strong effect of the attribution process, particularly defensive attribution in negative situations, the juror who is most similar to the litigant (particularly, an injured plaintiff in a case involving comparative fault) will judge the litigant’s behavior harshly in a concerted effort to maintain the belief that he/she will never experience the same injury, damages, or other negative outcome that forms the basis of the lawsuit. As counterintuitive as the process of defensive attribution appears to many attorneys, its powerful effects have been well known within the social psychological literature for over 50 years and as a result, should impact jury selection decisions.

Please contact Magnus to assist you with the human dynamics, such as defensive attribution, that are always a part of all of litigation.

Jury Opinion Leaders

Many attorneys believe the foreperson is the most influential member of the jury. A recent study confirmed that, according to other jurors, the foreperson has considerable influence on verdict. However, another juror also exerted influence on the jury’s decision. This juror was the opinion leader. While forepersons and opinion leaders share some characteristics in common, they are by no means similar types of people. The opinion leader may, in fact, be more influential than the foreperson.

Call the experts at Magnus to find out why voir dire efforts must focus on the opinion leader.

Jurors as Cognitive Misers

Jurors, like all human being, are cognitive misers. When jurors think about a trial, they do so while making the best of their mental capacities. Because jurors’ mental capacities are limited, important information presented by attorneys and witnesses is often misunderstood or ignored. Complex information is sometimes too much trouble, requiring too much time, for jurors to learn and remember. The best way to overcome jurors’ limitations is by imposing a structure on all aspects of your case. Social psychologists refer to mental structures as schemas. Schemas are categories about people, roles, and events that provide information on appropriate norms. Jurors’ judge new information based on its similarity to their schemas. Absent relevant schemas, jurors will have little basis to understand the case. It is up to you to provide the structure to help jurors understand your case.

Contact Magnus to learns ways to provide schemas for your trial.

Heuristical Illogic

Attorneys are trained in the use of logical reasoning. The average juror, however, has had little or no training on logical principles. Most people merely rely on their common sense as they attempt to solve complex problems. Heuristics are a frequent common sense method by which jurors reach decisions. Heuristics are judgmental shortcuts that allow people to make efficient, but not necessarily accurate, decisions. Heuristics include the use of analogies and metaphors, misapplication of personal experience, and overgeneralization of limited information. Heuristics are illogical and often lead to biased decisions. Recognizing that everyone uses heuristics to a greater or lesser extent, the attorney must strive to simplify the case to allow jurors to make more accurate decisions.

Contact Magnus to learn how to use heuristics to your advantage.

Cognitive Distortions

Cognitive distortions are mistakes that involve a faulty interpretation of information. Cognitive distortions occur from memory failure, misinterpretation of new information, or misapplication of old information to new situations. Jurors’ decisions often involve cognitive distortions due to jurors’ unfamiliarity with the law, as well as the complexities associated with a particular case. Jury research provides a valuable tool by which cognitive distortions can be identified. Some mistakes in jurors’ reasoning are serious enough to impact their verdict. Once cognitive distortions are identified, the case presentation can be restructured in a way that eliminates them from the decision making process. Recognizing the problem areas in the case in advance of mediation or trial is one of the primary benefits of utilizing psychological science in litigation.

Contact Magnus to learn how cognitive distortions are impacting jurors’ views of your case.

Jurors’ Attitude About Money

Magnus polls mock jurors about attitudes that may impact their views of a particular case. Jurors’ attitudes about money have obvious implications for their tendencies in awarding damages. Over the past ten years, Magnus has asked 5,198 mock jurors about their spending habits. We have found that 47% of mock jurors are self described “free spenders,” while 53% of mock jurors indicate they are “tight” with their money. It is interesting to note that, even in relatively lean economic times, almost half of the mock jurors polled reported liberal spending habits. This is an appropriate area for inquiry during voir dire that may be developed into a line of questioning that will ultimately determine whether a jurors’ attitudes toward money are beneficial for the plaintiff or the defendant.

Contact Magnus to learn more about the impact of jurors’ attitudes on their decisions.