By Thomas M. O’Toole, Ph.D.
If you follow this blog or read our column in the King County Bar Bulletin, you know that I have been working with another well-respected jury consultant, Kevin Boully, to develop the study of Jury Economics, which is behavioral economics applied to jury decision-making. Behavioral economics has become a critical field of study across many industries due to its focus on the predictably irrational ways in which people act and make decisions.
Jury economics tells us that there are three core components to all jury decision-making: 1) it is egocentric; 2) it is economical; and 3) it is symbolic. In this blog, I want to focus on egocentric jury decision-making and what it means for jury selection. Before we do that, you might ask, what is egocentric jury decision-making? I’ll start with a great quote and then get more concrete.
In his phenomenal commencement address, author David Foster Wallace described the human experience in this way:
“Everything in my own immediate experience supports my deep belief that I am the absolute center of the universe; the realest, most vivid and important person in existence. We rarely think about this sort of natural, basic self-centeredness because it’s so socially repulsive. But it’s pretty much the same for all of us. It is our default setting, hard-wired into our boards at birth. 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.”
Egocentric jury decision-making is the application of this idea to juries. Everything jurors perceive about a case is filtered through their own egocentric lenses. To be more specific, what jurors hear at trial is judged against their own personal beliefs, experiences, attitudes, and general feelings. Evidence, testimony, and arguments that go against jurors’ own personal beliefs and experiences are most often rejected, ignored, or explained away. This is what makes jury decision-making so egocentric: often, it is the juror’s reality that matters more than the facts of the case.
While this has always been true with jurors, it is becoming even more important with a new generation of millennial jurors stepping into the jury box. For example, according to a 2019 national survey that we conducted, 82% of jury-eligible millennials said they would decide a case based on their own beliefs about right and wrong if those beliefs conflicted with the law.
This is not particularly surprising given that several studies have shown that rates of narcissism are at all-time highs in the United States. What is surprising is how many attorneys neglect this fundamental component of jury decision-making in voir dire.
If jury decision-making is egocentric, it is critical that attorneys get jurors to open up about their personal experiences and attitudes in voir dire so that they can identify potential jurors who are going to reject their evidence, testimony and arguments out of the gate. Yet this rarely seems to happen. Instead, we tend to see three misguided strategies: 1) the attorney talks more than the jurors (talk about egocentric!); 2) the attorney tries to sell the case (it doesn’t work) ; or 3) the attorney focuses on jurors with favorable experiences and attitudes (outing the “good” jurors to the other side).
I’ve written extensively about the shortcomings of these three strategies, but the point of this blog is that these strategies ignore the fundamental tenet that jury decision-making is egocentric.
What makes this most painful to watch is the awareness of how easily attorneys can account for egocentric jury decision-making by asking direct questions about relevant experiences and attitudes. For example, a defendant in a medical malpractice case should ask questions about previous negative experiences with doctors, beliefs that doctors rush through care, and so on.
Some attorneys have concerns about “tainting the pool” with these kinds of questions, but the reality is that you have two opportunities to find out if a juror has a belief or experience that is going to undo your case in deliberations: 1) in voir dire when you can do something about; or 2) when the verdict comes in and you are powerless.