Dodger Stadium. I remember it like it was yesterday; I was 7 years old, and it was my first time ever stepping foot inside a major league baseball stadium.
The experience was surreal. I had no idea what to expect. I vividly recall walking out of the tunnel into the nosebleed section and I couldn't believe what I saw. It seemed like we were a mile high. The seating was so steep that I felt like I was going to fall forward and tumble out of the stands if I took another step forward. The grass was a deep shade of green and so far away - the place was enormous. The whole experience left an indelible impression on me that I will never forget. At that moment I became a Dodger fan.
What does this have to do with jury selection? Let's first start with a little Psych 101:
Everyone has biases, world views, ideologies, and deeply held beliefs that cause us to interpret incoming information in certain ways. Sometimes people are aware of these biases and other times they're not. In this regard, two cognitive fallacies operate together in powerful ways that make being objective almost impossible: one has to do with how we evaluate incoming information (confirmation bias), and the other has to do with how we justify or argue our positions to others (my side bias). A key feature of both cognitive fallacies is that evidence that supports our world view or belief system is accentuated, and evidence that contradicts it is discarded. In fact, these two biases cause people to dig their heels in deeper when confronted with evidence that contradicts/refutes their positions.
Baseball and Jury Selection
As I mentioned earlier that first experience at Dodger stadium made me a Dodger fan. In fact, I still remember how proud I was in 1977 (as a 9-year-old) that "my team," was the first team to ever have four players hit over 30 home runs in a season. Dusty Baker, Reggie Smith, Steve Garvey, and Ron Cey. As far as I was concerned, the Dodgers were the best team in all of major league baseball, and no one could convince me otherwise, not with stats, facts, history, or any sophisticated argument. Even though it might have been true on paper that other teams were technically better than the Dodgers, there's no way I could be convinced. And this turns out to be a perfect example of confirmation bias and my side bias at work.
As you can imagine, both cognitive fallacies play a powerful role in juror deliberations. As a jury consultant, I've seen it unfold more times than I can count over the last two decades. During deliberations, it never fails that people who watch the exact same plaintiff and defense presentations arrive at opposite conclusions. An important lesson I've learned in watching thousands of hours of mock jurors deliberate is that jurors' verdicts are heavily, and often unwittingly influenced by the two cognitive biases outlined above. Furthermore, it's often next to impossible to circumvent these biases with "persuasive evidence," "commitments to be fair," "savvy themes," "sophisticated arguments," "undisputed facts," or even jury instructions.
If you're someone who tries cases, you already know that one of the most important goals during voir dire and jury selection is to find and strike the people who will not, and even cannot be fair to your client. Imagine the impossible task of trying to convince me that I should root against the Dodgers... that's never going to happen. Likewise, imagine how difficult it would be to persuade an environmentalist to find in favor of a lawsuit against "Big Oil," (any type of case). It's going to be highly unlikely, if not impossible, not because the environmentalist isn't a fair person, but because the cognitive biases described above are so powerful.
So, in light of these unavoidable cognitive biases, what are some key takeaways for trial attorneys?
Ask the right questions during voir dire - E.g., know your strike profile and develop questions that will uncover biases against your client.
Ask the right questions in the right way - E.g., ask open ended questions that get people talking about their attitudes; experiences; beliefs; and feelings, and ask closed ended questions when you're about ready to move for a cause challenge.
Ask the right type of follow-up questions - E.g., if someone has had an experience you might think is a problem, find out what they learned from that experience, or how their behavior has changed because of that experience.
Conduct social media searches - People will tell the world on social media more than they'll tell you in a few minutes in open court.
Conduct social media searches even if you receive the names of the jurors the day of jury selection - With very few exceptions, a team of off-site social media searchers can comb the social media of the prospective jurors in real time and immediately report results to a jury consultant or the trial team via live document.
There are multiple factors that impact how jurors will ultimately decide a case (good lawyering, strong facts, good witness performance, etc.). However, it's vital not to underestimate the reality that jurors are not blank slates. In other words, there are powerful and often times hidden forces at play when it comes to the way people process (accept or reject) incoming information, and subsequently how they formulate arguments in support of their view points.
For more advice from a jury consultant, check out the following blog posts:
Jeff Dougherty, M.S.
President - Litigation IQ
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