Bargaining and negotiation

Bargaining is a social psychological phenomenon that I observe in every mock jury research project I conduct. Rarely do the mock jurors reach unanimity without considerable back and forth discussions. According to social psychological theory, bargaining involves situations with the following characteristics: (1) the parties involved have divergent interests; (2) some form of communication by the parties is possible; and (3) the parties are able to make concessions. When a group of citizens is formed to comprise a jury of 6, 12, or another size, the 3 conditions listed above converge and ultimately, a verdict is reached. (Of course, when 1 or more jurors refuse to negotiate with the others and instead, take a stance of “I will never change my mind,” unanimity is impossible and a hung jury is the result.) Usually, there are several mock jurors who are plaintiff oriented, several who are defense oriented, with most falling somewhere in between. The first challenge on the verdict form arises with the initial question regarding whether or not the defendant was negligent. Getting everyone in the group to agree on a vote of “yes” or “no” is difficult and almost always involves the recognition, on the part of at least 1 juror, that, unless someone changes his/her initial vote, consensus will not be possible. I have had the opportunity to observe thousands of mock jurors deliberate and, although the cases vary and the jurors are different wherever we work, the group dynamics of bargaining and negotiation are identical across all of the cases on which I have consulted. Concessions are eventually made in a “let’s make a deal” fashion. The discussion goes something like this: “Look, you are the only person who believes the defendant had no responsibility for causing these terrible injuries to the plaintiff. The rest of us believe the defendant is to blame for causing this horrendous accident. What will it take to convince you to change your mind and vote like the rest of us? We can’t move forward until everyone agrees.” After some period of time during which a discussion takes place and everyone has a chance to defend their initial position, more often than not, the person or persons who are in the minority will go along with the majority, but only if the other jurors agree to reciprocate when it comes to reaching an agreement on the remaining questions on the verdict form. This part of the negotiations process goes something like this: “Okay, you’ve convinced me that the defendant was a little bit negligent. So I will agree to say ‘yes’ to the first question if the rest of you will concede that the plaintiff was partly to blame for the accident.” This bargaining strategy usually works well due to the strong social pressures for reciprocity in our culture. Reciprocity is the norm by which we are supposed to treat others as they treat us. In most of the mock juries I have conducted in my career, the jurors want to reach a unanimous verdict; after all, that is the goal of their deliberative process. Reaching unanimity through bargaining and negotiation is an important factor that must be given due consideration by attorneys during the jury selection process as well as the trial as a whole.

Bargaining and negotiation involve give and take. And, some people will do all the taking, and little of the giving. We all observe this in many human interactions. In a jury scenario, this reality takes on a specific life of its own. We see it all the time in mock juries as the mock jurors attempt to reach a collective verdict. (As an aside, “first time” attorneys and their clients often ask whether mock jurors take the case seriously. It is when they are negotiating that we see how seriously they take their “job” – the answer is a definite yes. The discussions become heated, sometimes overheated, and there is as much back and forth as in any interaction – including the time I was on a jury. In fact, that experience was more collegial than many of the mock juries I’ve observed.) But, I digress. Given the way venire members become a jury, it is rare one side of the case or other will be “loaded” in favor of either side. Therefore, expecting that the jurors will be negotiating their way through the verdict form should be the norm. The question is, does a lawyer want them to get along and negotiate, or do they want to attempt to create a situation whereby negotiations are contentious or impossible? Will the jurors “get along” or not? Do you care? If you are an attorney, you should care, or, at least, you should think about whether it is relevant for a given case.

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