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Jury Behavior – 2's Company – MagnusInsights.com https://magnusinsights.com Mon, 29 Aug 2022 13:50:00 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://magnusinsights.com/wp-content/uploads/cropped-2sCompanyLogov23-32x32.jpg Jury Behavior – 2's Company – MagnusInsights.com https://magnusinsights.com 32 32 Not Everyone in Purple Thinks the Same Way https://magnusinsights.com/not-everyone-in-purple-thinks-the-same-way/ Thu, 25 Aug 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3229 Maybe it wasn’t really purple, more like lavender. The polo style shirts by 2 male senior citizens on one of our mock jury panels were very similar. I wasn’t present to witness the events first hand, but I have seen the video of the deliberations many times. The venue was a community where many senior citizens have retired. Despite their mutual appreciation of lavender, these 2 gents nearly came to blows with one of the two mock jurors aggressively castigating the other mock juror in offensive terms. Melissa and our research assistant had to intervene to cool the situation down and remind everyone of the need for civility. The situation did not deteriorate further, fortunately. And, the mock jury group was able to reach a decision that allowed us, and our clients, to learn from the session. The lessons of the day were beyond the case specific results. An important lesson, or hopefully a reminder, was that just because there are outward appearing similarities in people, each person is an individual. Assuming otherwise is dangerous. One of these men in lavender was very conservative, a defense oriented juror. The other man was much more plaintiff oriented. While other things were known about the two individuals, we’ve long reflected on how dramatic their differences were. They were both “old white men” wearing lavender/purple. But that was it. The experience now serves as a reminder that what you can see on the outside is not indicative of what is on the inside, in the minds and hearts of potential jurors. This event became a lesson used in one of Magnus’/Melissa’s Continuing Legal Education (CLE) programs, “Jurors say the Darndest Things.” In addition to occasional live presentations, the CLE program is available at www.magnusce.com.

]]> Shortcuts https://magnusinsights.com/shortcuts/ Thu, 07 Jul 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3178 I recently read a newspaper article in a business/legal publication that prompted this post. The premise of the article was that women are more likely to be plaintiff prone on juries than men. Prominent and successful lawyers espoused their preference for having women on juries. A jury consultant (of whom I’ve never heard) reported research data to “prove” this point. While watching a mock jury deliberate recently, the most defense prone person on the panel was the youngest person, a 25-34 year old woman. She is tough, and, put another way, “very cheap.” She is a school teacher. Over the years, I’ve heard many lawyers, especially plaintiffs’ lawyers, say they never pick teachers for their juries. So, which is it? Juror #6 is not living up to the favorable plaintiff’s lawyer stereotype of women, but, she fits their stereotype of a teacher. Which stereotype to chose? NEITHER. It is not that simple. All women are not the same; all men are not the same. Even the reported jury consultant’s data demonstrated this to me. It stated that 53% of the time, women were more favorable for plaintiffs than men. That leaves 47% of the time when it wasn’t a woman who was favorable. A 6% difference means that, within the margin of error, even if the sample size was large, there were virtually no gender differences. Melissa has presented continuing legal education (CLE) programs to thousands of lawyers, most often, on the topic of jury selection. Countless times, the attorneys have asked questions seeking a shortcut, a magic bullet, or another easy way to decide who to reject on a jury panel. The message of this post is: get over it. Looking for the simple shortcut is a sure way to short change your client by not making optimal jury selection decisions.

]]> Commercial Litigation: Benefits of a Trial Consultant, Part 2 https://magnusinsights.com/commercial-litigation-benefits-of-a-trial-consultant-part-2/ Thu, 05 May 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3125 This is part 2 of the benefits of a jury or trial consultant in commercial litigation. As noted in the prior post, in commercial litigation, high powered people are often involved. We have been involved in many cases in which these parties were “out for blood.” Even though the cases were “only about money,” the litigation became personal. These parties wanted their “pound of flesh.” Commercial litigation can get ugly. The perspectives of the parties are often skewed by these factors. The longer the litigation takes, the “hotter” some of these people become because they want their day in court to prove their case. They want to have others confirm they were in the right. Many times in these scenarios, the lawyers have been unable to get the client to comprehend that not everyone will see things the way they, the client, does. In these situations, mock trials and focus groups help clients see (literally) what “real people” think about the case issues, and about them. At times, this is a painful lesson, one that the client may still want to debate. More often, when the sting fades, the client realizes that this “day in (mock) court” may not have worked out as they thought and as a result, they become more willing to listen to the attorney’s advice and direction for the case. Whether the trial verdict will be rendered by a jury or a judge (the latter in the event of a bench trial), hearing the decision makers’ decision process provides a reality check, which is something we’ve previously explained (https://magnus.lisawhitsell.com/2016/10/reality-check-plaintiff/ and https://magnus.lisawhitsell.com/2016/10/reality-check-defendant/). A reality check is always valuable to litigants who need to be able to see their case through the eyes of others in order to comprehend the challenges of the litigation. This is often impossible to communicate to litigants absent letting them see and hear it for themselves. Managing client expectations is often much easier to do with the results of trial outcome research in hand.

]]> If You Don’t Have a Ph.D In Psychology Don’t Presume to Understand Human Nature https://magnusinsights.com/if-you-dont-have-a-ph-d-in-psychology-dont-presume-to-understand-human-nature/ Tue, 03 May 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3118 I have written about the phenomenon of people who have no education, training, or expertise in psychology who think they know as much about human behavior as I, a psychologist, know. I am frequently asked for my opinion about someone or something, only to be told, “Well, I don’t have a degree in psychology, but I do know about my Uncle Bubba’s situation and it is different than what ‘them there’ books say.” When this happens, I usually shake my head, muster a fake smile, and wish the person well, knowing he/she will never be able to understand what it means to really understand human behavior. People who believe they possess expertise in a complex subject they do not understand have succumbed to a cognitive bias known as The Dunning-Kruger Effect. The Dunning-Kruger Effect is caused by people’s failure to understand the differences between their performance and others’ performance. Most people have no means of assessing their performance on a particular task, especially a complex task that is acquired from years of study. These people truly do not know what they do not know! For example, people who do not have a Ph.D. in psychology often consider themselves to be a “good judge of character” (whatever that means), failing to consider the years of education and training we psychologists have in learning how to interpret human behavior, to the point of being able to predict what someone is likely to do or say. Many well meaning people have inadvertently insulted me by saying, “Well, that’s just common sense,” “Or I don’t have to have a doctorate in psychology to know the answer to that question,” or something similarly inane. An interesting side effect of this cognitive bias is the inability to distinguish between competence and incompetence, creating a situation wherein the incompetent person fails to recognize his/her incompetence. The end result is termed the “dual-burden,” due to the fact that the person both lacks the skill and is ignorant of this lack of skill. Word to the wise: If you don’t have a Ph.D. in psychology, don’t presume to understand human nature the way I do. And don’t second guess your neurosurgeon, ophthalmologist, or endodontist either, for that matter.

]]> Commercial Litigation: Benefits of a Trial Consultant, Part 1 https://magnusinsights.com/commercial-litigation-benefits-of-a-trial-consultant-part-1/ Thu, 28 Apr 2022 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=3123 I had a conversation with a friend/client recently. He previously hired us in a personal injury case, but now works in a firm that does mostly commercial litigation. The question arose about what we, at Magnus, do in commercial cases. I explained that a high percentage of our cases are commercial cases. Sometimes, clients or prospective clients have a mistaken perception that we only work on personal injury cases. Nonetheless, we know there are many reasons that we, as jury or trial consultants, bring a perspective to commercial cases that is helpful in unique ways. This post is the first of several to outline some of these factors. The first factor I think about is that commercial cases often involve disputes between owners or executives of companies, that is, people are accustomed to being “in charge.” They call the shots. In litigation, they do not. The constraints faced due to “the law” and legal processes, including rulings by the judge, frustrate these executives who just want things to get done and done quickly. These frustrations often create friction between the lawyers and their clients. These frustrations and frictions sometimes manifest themselves in the way the executives communicate, for example, in depositions. If the executive exhibits those frustrations in a deposition, especially those which are video recorded, they will be perceived as arrogant, and will probably be criticized for that “performance” by jurors or judges. Which brings us to benefit 1 of jury consultants – witness preparation. Witness preparation should be conducted prior to the executive/witness digging a hole for himself or herself during a deposition. We know lawyers prepare their witnesses, but we also know that preparation is far better when an expert in human perception and communication is a part of that process. Helping the executive understand the process, the decision makers, and their role, all of which is different than their “day job,” is a part of witness preparation engagements.

]]> COVID-19 Jury Composition Conjecture https://magnusinsights.com/covid-19-jury-composition-conjecture/ Thu, 13 Jan 2022 18:00:00 +0000 https://magnus.lisawhitsell.com/?p=3020 As trial consultants we try to stay current by reading lots of newspapers, journals, and magazines. Recently, I’ve noticed people writing about the composition of juries post COVID-19 (not that COVID-19 is over, “post” in this context merely indicates a world where COVID-19 came into being). Because of the politicization of COVID-19, vaccines, masks, etc., and because of the CDC guidelines, courthouse closures, the world of jury trials has been shaken. The practice of law has changed in many ways, some permanently. The willingness of ordinary citizens who are called for jury duty has been impacted as well. People who are extremely fearful of being in public due to concerns about COVID-19 are not showing up when they are summoned for jury duty. The next level of people may be less fearful and are showing up along with those who are on a continuum ranging from that point on the scare to the “right” all the way to COVID-19 deniers who are happy to show up. This is where the conjecture begins. One article I read recently was about how the more extreme “right wing” jurors who are willing to show up for trials are bad for criminal defendants. The writer stated that the jurors willing to go to a courthouse are more conservative and are prosecution prone. In the civil context, where we do most of our work, plaintiffs’ lawyers are concerned about this phenomenon as well, that is, that conservative individuals are more likely to be jurors than more liberal ones, and that the jury verdicts will be more defense prone. But, here’s another twist, since the resumption of jury trials, there have been many record plaintiffs’ verdicts. Verdicts that surpass prior records and lawyer expectations are making the news weekly. Clients have relayed these concerns and some insurance adjusters are “quaking in their boots” about the potential of huge verdicts. So, how does one reconcile these seemingly opposing perspectives? My take on it is that this merely points out the need to be prepared for any significant case, especially as to trial strategies. Perhaps the thing that COVID-19 laid bare was the realization that the world is changing, or has changed, over many years, and it is catching up with lawyers and insurance carriers or other clients. To me, this reinforces the need to conduct mock trials or similar research to get a pulse on what is going on in a community with a certain fact pattern and specific clients. Trying cases based on a pulse rate from years past is not enough. Guessing about the impact of COVID-19 and all of the related hardships and changes it brought to us all is not a smart way to prepare a case. More than ever, it is critical to successfully resolving a case, to get to know what decision makers in a community are thinking in relation to one’s case, civil or criminal. Conjecture is not enough.

]]> What’s Your Alibi? https://magnusinsights.com/whats-your-alibi/ Thu, 16 Dec 2021 18:00:00 +0000 https://magnus.lisawhitsell.com/?p=2983 Do you have an alibi? Do you need an alibi? We’ve all seen it on TV. If you are innocent, you have an alibi. If you don’t have an alibi, you are suspect #1. What were you doing on the evening in question? Do you remember? Probably not. In life one goes from hour to hour, day to day, doing whatever things one does. Unless there is something exceptional, one probably does not remember the activities that occurred on any particular day. The exceptions become salient and memorable; normal and routine activities are not. A creative research study illustrates all of this. As reported in The Observer, (Sept.-Oct. 2021 edition, Observations, page 16, “Faulty Memories of Our Past Whereabouts: the Fallacy of an Airtight Alibi”), research subjects agreed to allow researchers track them and interview them about their memories of their life activities for a one month. Technology made this study possible because the researchers were able to track the movements of the 51 participants over this time period. Participants were then questioned about where they were at certain times. And, guess what, memories failed about 36% of the time. Maybe you don’t need alibis from people with whom you deal regularly. Those who are criminal defense attorneys have clients who may need them more than other people do. But, this study suggests it is not just alibis, or memories related to criminal activities, that cannot be trusted. Instead, the point is to demonstrate that memory is not the “steel trap” that some people think it is, especially in difficult situations. When things are running “normally,” there is no reason to “make a mental note” of anything. If you don’t know there is a reason to remember something you probably won’t. If you don’t know there has been a bank robbery, you probably won’t remember the tag number of the car which casually drove away from the front entrance of the bank. I was thinking about this recently when working on a medical malpractice case in which the intake information was being sliced and diced to suggest it was inadequate. If there were no anomalies, things which later might seem to have been signs that the patient was in distress appear to stand out as red flags but only when, or if, something goes wrong. Routine activities are just that. People go through life, follow protocols, or do things without necessarily looking beyond the obvious. Without some prompt to pay attention and remember, memory doesn’t necessarily record what is going on unlike a video camera which is constantly in the “on” position. All of this is to say that our expectations of memory are often unrealistic. People are sometimes faulted, or found guilty, for not remembering things no one should expect them to remember. One may think it is incredulous that someone might not remember what they had for lunch last Tuesday. It isn’t. Do you? Remember this when assessing memories, alibis, and explanations of others.

]]> It’s a Big Job! https://magnusinsights.com/its-a-big-job/ Thu, 07 Oct 2021 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=2930 Melissa and I have mentioned we are undergoing a big home improvement project this year. It is not one we wanted to undertake: a new roof! We first heard “It’s a big job” when securing bids for the roof project. “It’s a big roof, it’s a big job….” Well, yes it is. Isn’t that great? It should mean more work for you, more money for you, the contractor. But more than one roofer opted out of our “big job.” They couldn’t figure out how to manage it. As the work progressed, we’ve had to engage a few contractors for related work. One of the more recent ones was a gutter contractor who we interviewed to replace the gutters torn off the house along with the old roof. He met Melissa early one Saturday morning and quickly said “It’s a big job” and turned down the work. This has amazed me. When we at Magnus get a big job, it’s a great day! We are excited. We figure out how to get it done. That may take considerable time, but we find a way. This is how we grow our expertise. This is how we help our lawyer clients help their clients achieve the best possible outcome. Melissa and I have spent considerable time and effort in maintaining a professional network which we can tap as needed. This is one of the ways we handle the big jobs. Overseeing large projects can be challenging, and exhausting, but they are also rewarding. Big jobs. Bring ‘em on.

]]> Brave New World https://magnusinsights.com/brave-new-world/ Thu, 30 Sep 2021 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=2925 Recent conversations with several attorneys prompted this post. The title many will recognize is from a 1931 book by English author Aldous Huxley, and I have to say, I’ve never read it. But, here we are in the 3rd quarter of 2021 and I have to say that, due to the COVID-19 pandemic, and other factors, we may be at a stage in the world where changes are occurring, or have occurred, that have altered “normal” and changed it forever. My post “Quantifying Change” (https://magnus.lisawhitsell.com/?p=2921) was a part of the story. Demographics have changed, as quantified by the 2020 Census. As mentioned in this previous post, the data will describe an America that is more “blended” than ever demographically. But that blending includes changes in psychographics – attitudes, values, and belief systems. When asking people to reach decisions, e.g., juries and verdicts, these changes must be considered. The changes did not happen overnight; Census data are on a 10 year cycle thus though the changes have happened between 2010 and 2020, these types of changes occur more gradually that one might think when the new Census data are released. But, then there is the pandemic. It brought a host of changes, to work cycles, to interpersonal communications, electronic communications, and more. Some companies really shined as helpful in a crisis – Amazon for example. Other companies adjusted well to remote working and others did not. Employee expectations of work environments are forever altered, along with, in some cases, their perception of corporate America. The politicization of the pandemic has impacted perceptions as well. General political polarization remains an issue as well as the Biden/Trump election cycle remains unsettled in the minds of a significant portion of the U.S. population (a factor discussed in our 2018 post The New World Order, (https://magnus.lisawhitsell.com/2018/03/the-new-world-order/). A client told me recently that some trial consultants theorize that Trump voters now see themselves as victims (of voter fraud, etc.) such that they might be more sympathetic to accident victims than they once were, as conservatives. I think this theory remains to be seen, but there is no doubt that many parts of what was “normal” are in flux. Because of the uncertainty of these variables, it is perhaps more critical than ever to evaluate cases in a way that accounts for changed perspectives. As trial consultants, we know the value of focus groups, mock jury research, etc. We have always explained to potential clients that jury research reduces uncertainty (see also Reducing Uncertainty from 2016, (https://magnus.lisawhitsell.com/2017/05/reducing-uncertainty/). But when uncertainty is elevated as it is now, finding out what people are thinking through the use of focus groups, surveys, and mock jury research is especially critical. Don’t ignore the seismic changes that we are all undergoing in real time these days. Attorneys, adjusters and anyone involved in litigation need to consider the new realities and how they impact jurors’ decisions.

]]> Quantifying Change https://magnusinsights.com/quantifying-change/ Thu, 23 Sep 2021 17:00:00 +0000 https://magnus.lisawhitsell.com/?p=2921 It is an exciting time to be a data nerd – the 2020 Census data are trickling out. And, apologies to Bob Dylan, with the times, the data are a-changing! The key data points released thus far confirm the growing diversity of America. I’ve been looking at some of the numbers for Florida, with a population now of over 20 million. Cities like Jacksonville have seen major racial and ethnic changes as well as population growth. Growing up in Jacksonville, I remember when the population of Duval County/Jacksonville was about ½ a million – and that seemed large. Now it is about double, with Duval County/Jacksonville nearing 1 million with another 600,000 people in the metro area. And, while, according to the data, Jacksonville is still the largest majority-white city in the U.S.A., that majority is now under 50%. Nationwide, the white portion of the population is now under 60%, a significant drop from prior counts. Another interesting factor is the dramatic increase of people identifying as mixed race and/or multi-ethnic individually and in households. Many of the stories about these changes look at how these changes impact political re-districting. But, as Melissa and I are in the trial consulting world, I want to comment on changes in juries, or in jurors. Assumptions about races or ethnic groups have never been simple, though we’ve seen attorneys try to use these as shortcuts. Now, more than ever, these stereotypes will not hold because the population of potential jurors is more complicated. In the last couple of years I’ve had defense attorneys in Jacksonville lament that Jacksonville juries have become more generous, more “liberal.” Well, perhaps now they can see why – the population base has changed! A Colombian restaurant owner in Jacksonville in a Florida Times-Union article was quoted as saying “We are different races, colors, religions and political views….I’m Colombian and I may look one way and then my other fellow Hispanics can look completely different and still be Hispanic…” Hispanics from different countries and origins not only look different physically, but there are differences in how different people from different countries of origin look at the world and, each other. We’ve observed these differences many times in mock jury deliberations. The fact that things have changed is not news – seeing the changes quantified is. Learning about the changes is important, but not as important as learning to adjust to them. Trial lawyers must realize that their perspectives on the world of decision makers must constantly be adjusted in order to get the desired result in litigation. Keeping up with demographic changes is one part of that adjustment. I dare say, as trial consultants, we can play a role in helping attorneys learn and adjust to the new reality.

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