By Thomas M. O’Toole, Ph.D. and Kevin R. Boully, Ph.D.
*A version of this blog was published in the October 2019 issue of the King County Bar Bulletin
What is jury economics? If you google it, you will find no matching results. If you search any of the books written on jury persuasion or decision-making, you will not find the term. It has never been used before, but we hope to make it an important part of your vocabulary with this blog post, which is going to draw on the ongoing research and analysis we have been conducting over the past several years.
Jury economics offers a new paradigm of jury decision-making built on the emerging field of behavioral economics. Behavioral economics is the study of how humans repeatedly diverge from the logical and the rational when it comes to decision-making and behavior. It is the examination of what Dan Arielly describes as our “predictably irrational” behavior, and it has taken on more and more importance as our culture has so radically changed over the last decade or so due, in large part, to extraordinary leaps in technological advancement.
Unfortunately, the study of jury decision-making has not kept pace with these large social and technological changes. In fact, the most commonly-accepted paradigm for jury persuasion and decision-making (the narrative model) has been sitting around since the late 1970s and early 1980s. While there is no doubt about the merit of many of the tenets of the narrative paradigm, the simple advice that attorneys should “tell a story” is no longer sufficient for explaining how to connect with and persuade in a culture where many get their news by simply reading headlines rather than the articles, and one of our most popular communication forums (Twitter) limits our total character count to 280 letters or characters.
The world has changed dramatically, which means jurors are changing dramatically. We are also seeing the emergence of the millennial generation in our jury pools, which is a generation unlike any before.
Jury economics attempts to provide a modern-day paradigm through which attorneys can understand how technology and culture has changed how those twelve individuals in the jury box make sense of facts and evidence in order to determine which side wins and which side loses. It has three basic tenets: 1) juror decision-making is egocentric; 2) it is economical; and 3) it is symbolic.
Let’s look at what each of these three tenets mean. First, jury decision-making is egocentric. One of my favorite quotes of all time comes from David Foster Wallace. He said, “Everything in my own immediate experience supports my deep belief that I am the absolute center of the universe…think about it: there is no experience you have had that you are not the absolute center of. The world as you experience it is there in front of YOU or behind YOU, to the left or right of YOU, on YOUR TV or YOUR monitor. And so on. Other people’s thoughts and feelings have to be communicated to you somehow, but your own are so immediate, urgent, real.”
This naturally-engrained self-centeredness exerts extraordinary influence in our lives, and research shows that it is only getting worse. In fact, we are seeing substantially higher rates of narcissism in our culture than ever before. This may seem like some sort of philosophical discussion, but it has very practical implications for the courtroom. For example, jurors will often accept or reject evidence based solely upon whether or not it is consistent with their own personal experiences. We also know that jurors give more credibility to witnesses who are more like them. Perhaps most important, we know that jurors render verdicts that make them feel good about themselves and their own personal values.
Second, jury decision-making is economical. Nobel Prize-winning psychologist Daniel Kahneman put it best when he said, “when faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.” In other words, we usually look for the easiest path to a decision, often without realizing that we have chosen to take the easiest path. We choose not to exert the mental energy if there is an easier path that we feel comfortable taking. It is why celebrities make so much money through endorsements. It is hard to thoroughly research and understand reverse mortgages, but if Tom Selleck says they are great, that might be good enough for us!
A great courtroom example of economic decision-making is medical malpractice litigation. Jurors often do not understand the science and medicine. Instead, so many medical malpractice verdicts come down to the eyeball test. Jurors observe the defendant doctor and ask themselves whether or not they would want that doctor caring for them and their loved ones. If the answer is yes, jurors will explain away bad facts for the doctor and reach a favorable outcome. If the answer is no, the doctor is in trouble.
Third, jury decision-making is symbolic. The brain of the average juror is not built to process all of the information that he or she receives over the course of trial. This leaves jurors overwhelmed, confused, and searching for simple ways to make sense of the case. This is how facts take on symbolic value. Jurors look for cues about what something means. For example, typos in a product manual may tell jurors that a product manufacturer is careless and not committed to getting things right. A manager who gets impatient and angry on the witness stand may tell jurors that he is the type to retaliate against his employees.
These are not just economical short-cuts. They are value triggers. They tell jurors what the case “is really about” by bringing particular values to the forefront. These values help jurors determine who they like and don’t like. They also turn verdicts into statements. Every verdict makes a symbolic statement about what jurors want the world to be like, whether it is about rectifying a defendant’s broken promises or forcing a plaintiff to finally accept accountability for her pattern of poor decision-making.
Each of these tenets (egocentric, economical, and symbolic) interact with each other, and we can find a wealth of practical insights in those interactions. That is the goal of jury economics: to explore all of the various aspects of our jury system through this jury economics paradigm, and provide attorneys with practical insights and tips on how to influence jurors in the twenty-first century.