Last year, Johnson & Johnson was hit with an $8 billion verdict by a Philadelphia jury, an amount that exceeded the gross domestic product of more than sixty countries (included Monaco, Belize, and Greenland) in that same year, according to data from the International Monetary Fund. In fact, Johnson & Johnson has become the posterchild for what many in the legal industry refer to as “nuclear verdicts,” but J&J is not alone. Jury verdict awards in the hundreds of millions and billions are becoming more and more common in American trials. The impact of this upward trend in verdicts is often referred to as “social inflation” and has become a popular topic that has understandably caused panic within the insurance industry.
Social inflation and nuclear verdicts indisputably demonstrate that a standard economic analysis for assessing risk in litigation is no longer sufficient for accurately predicting potential risk. Under a standard economic analysis, the value of an injury such as quadriplegia for a plaintiff should be no different in 2019 than it was in 2007 for a similar plaintiff beyond the adjustment for standard inflation (and certainly no different from a similar injury in a similar 2019 case), but that is not what we are seeing with jury verdicts. Instead, they are wildly erratic and inconsistent. In short, the data on jury verdicts demonstrates irrationality at work. Fortunately, the study of jury economics (a subdivision of behavioral economics) helps explain this phenomenon, highlighting what renowned psychologist Dan Arriely calls the “predictably irrational” behavior of today’s juries. Continue reading →
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. Continue reading →
We quickly learned that Richard was a horrible juror for us in the trucking accident case we were working on. We had decent evidence that the plaintiff had fallen asleep behind the wheel and veered into our truck, but Richard wasn’t having it. As soon as this issue came up in deliberations, he jumped in, stating, “I don’t care what he says. We have all been on the road with truck drivers and they routinely fly over into the other lane without any notice at all.” This quote was so powerful because what Richard was really saying was, I don’t care what the evidence in this case is because I’m going to go with my own personal experiences instead. Fortunately, this was only a mock trial, but it highlights an important reality about jury decision-making: it is an ego-centric process, and the research shows it is only getting worse with the emergence of the millennial juror. Continue reading →
The critical takeaway from any meaningful discussion about primacy theory and its role in persuading jurors is often the one that is least discussed. Those who tout the importance of primacy theory often talk about priming the jurors to achieve victory, but research shows the real takeaway should be to avoid the early mistakes that cost you the trial. In short, you cannot win your case in jury selection or opening, but you can lose it there.
Everybody knows first impressions are important, but some research shows that negative first impressions are much more powerful than neutral or positive first impressions. This is called the negativity bias and it has been investigated extensively by academic researchers. Specifically, negativity bias recognizes that negative experiences or perceptions have a greater effect on one’s psychological state than neutral or positive experiences. Continue reading →
In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”
While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases. Continue reading →
Without a doubt, we are living in unprecedented times. Whether it is the leader of the free world firing off daily rants on Twitter or the mere fact that smart-phones leave us plugged in 24 hours a day and 7 days a week, technology and social media have profoundly changed the way we experience the world. The psychological and sociological research is finally catching up, offering an interesting glimpse into how all of these changes are impacting our brains. Here are three ways in which technology and social media are impacting your jury pool. Continue reading →
In episode 3, I discuss the common psychological processes at play as jurors attempt to make sense of all of the information presented at trial, with particular focus on what this means for the development of an effective defense strategy.
Primacy and recency are, by far, the most popular theories of persuasion that arise in my discussions with attorneys. I have never heard an attorney mention “elaboration likelihood model,” but references to primacy and recency seem to come weekly at times. Primacy refers to the idea that what is presented most remains the most salient and, consequently, impactful for the audience. Recency is the opposite idea that an audience is most impacted by what it heard last.
Applied to a litigation setting, the primacy/recency debate translates to a popular debate about whether opening statements or closing arguments are more important. The traditional belief among lawyers (and in some respects, this author) is that opening statements are the most important part of trial. Many attorneys take primacy to an extreme, embracing a statistic that has been passed down through the ages that 70-90% of jurors make up their minds about the case after opening statements. In other words, these attorneys go as far as arguing that trial is essentially over after opening statements. Hans and Sweigart offer a rich discussion of this belief in their analysis of civil jurors’ perceptions of attorneys, suggesting that this belief originated with a 1940 study where researchers assessed liability judgments at eighteen different points in a mock trial and concluded that the vast majority of final verdicts were consistent with judgments made right after opening statements. Continue reading →