For the last couple of days, I took part in a mock jury exercise. I’m talking about the sort of thing that jury consultants do to help law firms shape trial strategy in high-stakes cases.
Make no mistake about it: this is expensive stuff. Thirty-six research subjects participated. We were all paid for our time and fed pricey hotel food. Half a dozen lawyers, at high hourly rates, were present for the duration, as were another half a dozen employees of the research firm. My back-of-the-envelope guesstimate is that the client is going to be billed about $150,000 for the two days of work. But compared to the amount at stake in the lawsuit we were looking at, this is a small price to pay if it makes the difference between winning and losing the case.
We sat through a day and a half of videotaped depositions, presentations by attorneys, and quizzes, recording our responses on questionnaires and by clicking numbers on a remote-control-like unit every few seconds. Based on our individual responses, matched to our individual demographic profiles, we were then sorted into three jury rooms to discuss the case for the last half-day session.
What I learned on my summer vacation
Although this was very much a mock jury, not a real one, the experience was fascinating.
From fairly early in the case presentation, I was convinced to a moral certainty that the plaintiff was a predatory company trying to exploit a legal technicality to steal a business from the defendant. It was as clear to me as black type on white paper, and I could not understand how such a case would ever make it to trial. Judge Judy would have thrown the case out rather than hearing it. Every word that the plaintiff’s witnesses or attorneys said seemed like another nail in their own coffin. Every word that the defendant’s witnesses or attorneys said seemed to further vindicate their position.
When our mock jury began to consider the case, though, I learned that I was pretty much alone in the room in my conviction and that several others were just as firmly convinced that the defendant was a snake who deserved to lose not only the case but also his home, his car, and the shirt off his back. Huh? What’s going on here?
Well, we did the jury thing, and eventually I persuaded a few of the less firmly decided members to lean my way. In the end, we were pretty evenly split. This was fine from the researchers’ point of view; that is, they were not pushing us toward a unanimous verdict.
But I’ve been thinking about how people could come to such divergent and strongly held opinions after looking at the same facts. I’m reminded of the dispute over the Florida vote count in the 2000 presidential election. The country was divided between people who saw how obvious it was that the election was stolen from Gore and people who saw how obvious it was that Gore was trying to steal the election from Bush. There was no common ground at all, despite everyone’s having the same facts in front of their noses.
Brain researchers have started to tease out the process by which we quickly shift from having an open mind about an issue to forming an emotional attachment to one side or the other. After we make that switch, it takes a lot to persuade us to change our minds. And that’s the phenomenon I saw played out in the jury room. It’s actually a wonder that any jury ever reaches a verdict in any case whatsoever, when you think about it.
But what made me decide so quickly in favor of the defendant and what made others decide so quickly in favor of the plaintiff? I think it’s the sum of our life experiences. When I watched the videotaped depositions, I saw each of the witnesses as matching an archetype that represented people I’ve encountered in my own life. I have opinions of those people’s character based on working closely with them—positive opinions or negative opinions—and I transferred those opinions to the witnesses in the case. Other jurors may have encountered similar personality types in their lives and reacted to them differently. Or they may have had the kinds of life experiences that did not include working with such people at all and may therefore have been more open-minded toward them.
Had an attorney called me in as a consultant and presented the case, I’d have charged a lot less than $150,000 for my opinion that it was a slam dunk for the defendant. But I’d have been wrong. The market research firm conducting the jury study is going to return a report that aligns demographics (profession, income, education, age, sex, race) with which way people tended to see the case. Facts, in other words, that the attorneys can use to shape their case, choose their witnesses, and budget their peremptory jury challenges.
When you think about the audience for your book, you can rely on your own opinions about that audience. Or you can rely on my opinions about that audience. Or you can spend the time to do some research on the audience. The choice depends on how serious you are about wanting your book to succeed commercially.
Were you asked to sign any kind of confidentiality form or contract in exchange for payment for your participation in this project?
How would you rate the authenticity of the case presentations? Was one side clearly better presented than the other side? If yes, how so?
I don't recall signing a confidentiality agreement, but we were asked not to disclose anything material about the case (the parties, the arguments, etc.). I'm comfortable that I haven't revealed any details that would identify the parties. A calls B a liar and a thief. B calls A a liar and a thief. That description fits about ninety-nine and forty-four one hundredths percent of all civil cases.
As for the authenticity, I have no idea. The researchers told us that we were presented deliberately distorted information because doing so served the purpose of the research. It would not surprise me, in reading about the case if it ever does go to trial and make the news (not terribly likely, in my opinion, that it will do either) to find out that the facts are very different from those presented to us.
As to whether one side was clearly better than the other, obviously not, or the mock jury would not have been so evenly split. If you mean to ask whether I know which side funded the study, there were some subtle clues to that, and I have my opinion; but we were not told overtly.
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