by Charlotte A. Morris, M.A.
Trial Consultant Advisor to the Civil Jury Project
The Civil Jury Project’s 2016 survey of more than 900 civil attorneys nationwide reveals that nearly one-third (30%) of those surveyed believe their cases never make it to a jury trial because of uncertainty about jury-decision-making and nearly half (46%) cite the uncertainty of their clients[1].
With all this uncertainty about jury decision making on liability, causation and damages – which combined is greater than any other single reason – it’s no wonder clients settle their cases instead of going to trial. After all, uncertainty is a risk so risk management practically demands it.
But jury decision making is no more arbitrary or capricious than any other human decision making task. In fact, the social science community has studied it closely and there is a lot we know about how juries reach their verdicts.
In addition to an enormous body of empirical research (type “jury decision making” in any database of peer-reviewed academic journals if you are curious), trial consultants have been conducting small group research for decades to help our attorney-clients learn about jury decision making in their own cases, so that together we can go to trial with greater confidence.[2]
After 25 years of conducting focus groups and mock trials on a wide variety of cases for plaintiffs and defendants – in venues across the country – I offer here a sample of just five basic truths that we hold to be self-evident about jury decision-making in civil trials:
- None of the most common or ordinary legal words and phrases are common or ordinary to most jurors. We hear “beyond a preponderance of the evidence” and “approximate cause” in a lot of mock jury deliberations. We cannot take any of the teaching for granted when preparing for jury trial, particularly when answers to the verdict form depend greatly on juror comprehension of legal instructions that are often repetitive, sound contradictory, and are riddled with terms of art.
- Apportionment is an easier decision-making task than simple yes or no questions on liability. We are all taught from the earliest ages to share. In states like North Carolina – where contributory negligence means a plaintiff cannot prevail if he or she has even 1% responsibility for causing or contributing to an injury – a defendant doesn’t have to do much to encourage the jury to share, and plaintiffs have everything to lose if they cannot explain why sharing is the wrong thing to do in some circumstances.
- The party that does the best job of meeting jurors’ earliest expectations for evidence is more likely to be ahead going into deliberations. Those early expectations form in response to even the most basic contentions and defenses described by a judge at the outset of a trial. This is the most important reason to pair case-specific and strategic voir dire questions with our plan for the opening statement, which occur when jurors’ attention is heightened.
- Speaking of opening statements: we know jurors will fill the gaps in any story we tell. Not because they are consciously ignoring legal instructions to base their decision on only the evidence presented, but because we all use stories to make sense of the world. In every case, there will be information that is not admitted into evidence; small group research allows us to discover the impact that will have on decision-making, so that we build explanations into our best narrative for the case to close those gaps.
- The more we talk specifically about damages and why (or why not) to award them, the more comfortable jurors are with making decisions about money. This is equally true for plaintiffs and defendants, and there are proven strategies on both sides for persuasive communication on a topic that is otherwise taboo talk among strangers.
Small group research does not predict trial outcomes so absolute certainty is not the goal. But there are predictable patterns in jury decision-making that we observe in our research. For every truth listed briefly above there are countless more, specific to each civil case type. Putting that knowledge and insight to work helps minimize uncertainty for attorneys and their clients, and it gives us greater confidence that the choice to go to trial (or not) is based on something other than our worst fears about jury decision making.
[1] http://civiljuryproject.law.nyu.edu/wp-content/uploads/2017/01/ASTC-CJP-Attorney-Survey-Report-2016.pdf
[2] Members of the American Society of Trial Consultants conform to its Code of Professional Standards, Practice Guidelines and Ethical Principles for Small Group Research (SGR), which can be found at: http://astcweb.org/astc-bylaws.