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.
Some things change and some things remain the same. Over the years of my career as a trial consultant, there have been several constant factors, including many attorneys’ search for “a magic bullet,” “an easy way out,” or as David says, “a shortcut.” Instead of spending some time learning about how people make decisions, why people perceive the world in disparate ways, and basic principles of persuasion, these attorneys try to find a quick, simplistic shortcut they can apply without thinking. Therein lies the problem, they are looking for ways to avoid rational thought, instead, preferring to use stereotypes and pop psychology (based on spurious research conducted by charlatans) to make important decisions. As long time readers of David’s and my posts know, one of the most frequent questions I am asked by unsophisticated attorneys is, “Do you think women or men will be better for the jury on my case?” to which I reply, “I don’t know. It depends on which women and which men are on the venire.” Guess what people? Not all women are alike. Not all men are alike. Furthermore, pick any demographic category and within it, not everyone is alike. There are lots of rather silly notions that get passed around to such a great extent that they become myth like in their effect on attorneys’ decisions about jurors. One of the latest silly notions, at least in my opinion, is that jurors who wear a mask in the courtroom are, de facto, plaintiff oriented and those who eschew masks are defense oriented. Oh my! These myths are amusing to me, but at the same time, they reveal a fundamental characteristic, present in many people, called cognitive laziness. In other words, many people use stereotypes and other shortcuts when making interpersonal judgments because they are too lazy to think for themselves. My advice: When faced with an important decision, THINK.