Traumatic national events, like the COVID-19 pandemic elicit a broad range of emotions in potential jurors. Jurors, like all of us, worry about the safety of our family and loved ones, keeping jobs, the state of the economy, or the stress of taking on new family and educational responsibilities. Recently, we have conducted some national survey research and the data demonstrates that the pandemic has heightened many latent juror attitudes about the government, corporations, and many other institutions and business. These stressors and biases combine to create a mix of emotions that potential jurors bring into the courtroom. Overwhelmingly, and not surprisingly, research on emotion and affective states demonstrates that people bring their emotional baggage with them when making decisions and passing judgements, even if they consciously realize their anger or sadness is extrinsic to the decision they are making. It’s simply human nature. Continue reading →
For years, I’ve successfully avoided Facetime calls and most video conferences. However, around 9 weeks, 2 days, 13 hours, and 42 minutes ago, that all changed. Not only did all of my work transition to video conferences, but so did my communication with my family and friends. Houseparty and Zoom are my new normal and I have to say, it’s not all bad! Yes, there are all the headaches we’ve known about for years: everyone talking over each other, followed by silence as everyone stops to let others continue; the frozen feed followed by everyone having to repeat what was just said; surprise video “guests”; etc. Through it all, though, people have adapted, and their video “skills” have improved. We’ve also learned that there are some things that do not necessarily need to be conducted “in person.” Just like all of the attorneys out there, our firm is also figuring out what can and cannot be done via videoconference. My colleague Tom wrote about one aspect of this in his blog, “How Does the COVID Pandemic Impact Mock Trials and Focus Groups?”
*Previously published our Jury Economics column in the December 2019 issue of the King County Bar Bulletin.
By Thomas M. O’Toole, Ph.D. and Kevin R. Boully, Ph.D.
Do you pursue happiness in each moment or live a life to be proud of when you someday look back on it? What does your preference say about how you make decisions? Nobel Prize winning psychologist Daniel Kahneman has repeatedly discussed an important discovery of human decision-making he describes as the realization of the two selves that exist in each of us. His point tackles the fundamental reality of how we experience and understand the world around us and is a critical component applied to jury economics. Kahneman describes the two selves as the experiencing self and the remembering self, and the critical distinction between the two is time. Continue reading →
How do you start a blog about what we are all going through right now? Most of us have never experienced anything like this before and making the adjustments that we are being asked to make is difficult at times. I was telling my kids earlier today that I am not sure everyone in our household is going to survive this pandemic and that has nothing to do with Coronavirus.
Different parts of the United States seem to be adjusting in different ways based on the number of cases in that particular area. In Seattle, we are ground zero for the United States, so we are seeing some more aggressive actions being taken. There are no trials or in-person hearings in our federal courts in the Western District, and our state courts in King County have gone to only a single trial in the courthouse at a time. Continue reading →
By Thomas M. O’Toole, Ph.D. and Scott Herndon, M.A.
In 2016, Oxford Dictionaries chose “post-truth” as its word of the year. It defined it as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” This concept has long been recognized in the fields of psychology and persuasion. Research has consistently shown that people tend to put beliefs before facts. In other words, decision-making often starts with what we want to believe, followed by efforts to seek out evidence that confirms what we want to believe, while downplaying, ignoring, or rejecting evidence that goes against those beliefs.
For this reason, misinformation is surprisingly resilient to correction and retraction. In fact, some studies show that efforts to correct misinformation actually reinforce the misinformation itself. This creates an interesting problem for litigants at trial. While it is primarily a problem for defendants, many litigants find themselves struggling to undue undesirable first impressions (or misinformation) that were created in opening or early in the trial. We do not intend to suggest that misinformation is synonymous with undesirable first impressions, but the resulting problem remains the same. Here are ten strategies for undoing undesirable first impressions or misinformation that we have identified from the research and our own experience working with hundreds of juries and mock juries across the country. Continue reading →
Sadly, research on cultural changes in America over the past few decades show that we have become more of a narcissistic culture than ever before. Jean Twenge, professor of psychology at San Diego State University, wrote the following in an article in Time magazine:
“Here’s the cold, hard data: The incidence of narcissistic personality disorder is nearly three times as high for people in their 20s as for the generation that’s now 65 or older, according to the National Institutes of Health; 58% more college students scored higher on a narcissism scale in 2009 than in 1982. Millennials got so many participation trophies growing up that a recent study showed that 40% believe they should be promoted every two years, regardless of performance. They are fame-obsessed: three times as many middle school girls want to grow up to be a personal assistant to a famous person as want to be a Senator, according to a 2007 survey; four times as many would pick the assistant job over CEO of a major corporation. They’re so convinced of their own greatness that the National Study of Youth and Religion found the guiding morality of 60% of millennials in any situation is that they’ll just be able to feel what’s right. Their development is stunted: more people ages 18 to 29 live with their parents than with a spouse, according to the 2012 Clark University Poll of Emerging Adults. And they are lazy. In 1992, the nonprofit Families and Work Institute reported that 80% of people under 23 wanted to one day have a job with greater responsibility; 10 years later, only 60% did.” Continue reading →
Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential jurors. Nearly all of these cases were set to last two or more weeks. Of the 1,000+ individuals who showed up for jury duty, 31% were millennials (i.e. 1 in every 3 people showing up for jury duty in King County is a millennial). Continue reading →
An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading →
Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification. Continue reading →
I’m sure you’ve written dozens perhaps hundreds. For each, you’ve painstakingly chosen every word, and gone over it with a fine-tooth comb. It’s a work of art. Therefore, come time to perform this masterpiece you’re shocked when it doesn’t go off as planned. What happened? Your witness happened.
Witness scripts or outlines are a staple of any litigator’s trial playbook, as they should be for a variety of reasons. However, there are several critical mistakes or shortcuts that are often made that invite disaster on the witness stand, the biggest of which is that the attorney did not consider the witness’s particularities. Simply talking with your witness is not sufficient to uncover those particularities; instead, the best way to assess them is through a mock direct examination. Here are three critical aspects of communication that you can glean from the mock examination and then address through the construction and editing of your witness examination script. Continue reading →