By Thomas M. O’Toole, Ph.D.
In many respects, success in litigation rests on the understanding and appreciation that the philosophy of the justice system and the rules of the game create and maintain a fiction that significantly departs from the reality of how decisions and verdicts are rendered.
The mistaken assumption is the Aristotelian ideal that logic and reason can and will save us. In this vein, the justice system, through trial courts, deploys a simple logical structure that presumes “evidence and testimony + the law = verdict.” We go to great lengths to carefully manage this fiction, whether it be public oaths by jurors to follow the law, admonishments to jurors to pretend they didn’t hear something, or pretrial rulings that pretend it’s possible to splice out strong emotional components of a case.
But to be clear, this post is the not the cry of a desperate tort reformer. I am not suggesting juries are the problem. The issue is much larger than that. The problem is lack or appreciation or an outright denial of the reality of the human decision-making process, universal across the spectrum of competency.
Antonio Damasio, a prominent neurologist who studied the impact of significant brain injuries, was one of the early pioneers to shed light on the shortcomings of Cartesian logic. He studied patients who had suffered injuries that essentially precluded the influence of emotions on human decision-making. In other words, these individuals constituted the perfect decision-makers that Plato, Aristotle, Descartes and all of the other dead philsophers envisioned: a perfectly logical human being. Damasio’s observations were startling. Not only were these patients NOT the perfectly logical human beings one would expect, but the inability to apply emotions resulted in decision-making paralysis. These perfectly logical thinkers were incapable of making even the simplest decisions, such as what color of pen to use or what to have for lunch. Instead, what Damasio observed was that emotions are a vital part of human decision-making.
This may seem abstract, so let’s get concrete. Here is just a small sample of empirical research that sheds light on the reality of jury decision-making:
- 70-90% of jurors make up their mind about a case shortly after opening statements.
- 53% of jurors believe preponderance of the evidence means the party has to prove their civil case “beyond a reasonable doubt.” 20% believe it means they must be 100% convinced.
- Comprehension rates of jury instructions in civil trials range from 10% to 58%, with most studies showing comprehension well below the 50% mark.
- Discussion of jury instructions accounts for less than 20% of the time spent in deliberations.
- Curative instructions not only fail to provide a cure, but often make inadmissible items more prominent.
- Jurors’ discussion of their own personal experiences with case-related issues make up just about 50% of the discussion during deliberations.
- 89% of jurors make up their mind before discussion of the evidence and law in deliberations even begins.
- Over 50% of jurors who have prejudged a case will state to the court during voir dire that they can be fair and impartial if seated as a juror.
- After three days, jurors remember approximately 10% of what they are told.
There are a variety of studies that show that judges are equally vulnerable to the confusion, boredom, misunderstandings, annoyances, retention gaps, etc. that drive these statistics.
The goal here is not to instill despair, but to educate. The reality of jury decision-making, and more importantly, human decision-making, is much simpler that the mystique and pop psychology babble surrounding the black box implies.
Decisions are born out of motivated reasoning. Motivated reasoning is when a person consciously or unconsciously makes a decision about what they want to believe first and then performs the work to ensure that desired conclusion is reached. In short, people have an amazing ability to justify what they want to believe with the so-called facts. So the key to any case strategy development is determining what it is your trier-of-fact wants to believe about the case. This is accomplished by identifying the psychological satisfaction that comes with rendering a verdict in favor of your client. Every decision or verdict in litigation is a statement about the case. What is the psychologically-satisfying statement that you want your trier-of-fact to endorse? The best statements are laced with core principles such as personal responsibility, hard work, or some other American ideal. These principles provide the motivational component to the statement that inspires the trier-of-fact to work for your client. An example of a psychologically-satisfying statement is, “a verdict that says a deal is a deal and these individuals are entitled to the fruits of their hard work.” If you cannot identify the psychological-satisfying statement about your case within a single sentence, it should be an immediate red flag.
Once you have identified what your trier-of-fact wants to believe about your case, you need to provide him or her the tools to conform the decision-making framework to this belief. In the past, when I’ve made this argument, some attorneys have said that I’m arguing for jury nullification. I disagree that it is nullification because nullification involves a decision to ignore or subvert the law. Instead, I am arguing that a trier-of-fact reverse engineers the verdict form to achieve a desired result. This is different from nullification because often, the trier-of-fact believes he or she is following the law, not realizing he or she is actually contorting the law to fit their desired outcome. He or she prioritizes favorable evidence or testimony over unfavorable evidence and testimony and interprets the jury instructions in a manner that allows the favorable evidence and testimony to justify the verdict he or she wants to render. For the critical philosophers out there, this is Jean Baudrillard’s “simulacra.” For those who can’t stand philosophers, it is the drunk guy who truly believes he is sober enough to drive. The difference with human decision-making is that we are all drunk enough to believe we are sober enough to drive. There is an entire field of study out there called neuro-economics that focuses on this phenomenon. Ball and Keenan unsuccessfully tried to merge neuro-economics with jury decision-making in the plaintiff dance craze they called the Reptile. Despite their shortcomings, the core argument has merit. Psychological satisfaction causes dopamine releases in our brain that “enslave” us. So effective is this cognitive drug in driving our decisions and behavior that we have become incredibly effective at justifying any action that gives us psychological satisfaction. Doubtful? Consider the fact that there is a billion dollar marketing and advertising industry that has been built on these principles. I have always thought the world of advertising was years ahead of us, in all likelihood, because of the amount of money that the research for it. But I digress…
Arming a trier-of-fact with the tools to be an effective advocate for what they want to believe involves two steps: fact selection and presentation. This is where the real science and art of litigation strategy development lies. Since your trier-of-fact will have limited retention of what you present, the best strategy consolidates the case through central facts that take on symbolic value by telling the trier-of-fact everything he or she needs to know about the case and reinforcing the psychologically-satisfying statement of the case. In most cases, 3-5 facts can tell the trier-of-fact everything he or she needs to know about the case and provide sufficient tools to reach the desired verdict. The central facts should be chosen based on how where they focus the trier-of-fact in the case. Every individual fact has the ability to make the case about something and focus in litigation is zero-sum: if a trier-of-fact is focused on one thing, he or she is not focused on another. As an attorney developing your case strategy, you need to find the individual facts that make the case about what your trier-of-fact wants to believe. The best facts are those that are not in dispute or at least easily proven.
After the central facts are chosen, the focus should shift to presentation. This is where trial teams often come up short. For many, there is an unfortunate perception that they’ve done their job if they’ve gotten the evidence or testimony out there in front of the trier-of-fact, which is rarely enough to accomplish the job. The keys to effective presentation at trial boil down to public speaking and communication basics that are often forgotten shortly after the completion of the obligatory college course early on in the attorney’s undergraduate life. Effective presentation is about using organizational structure, roadmaps, repetition, language, and imagery to make the core components of the message prominent among the ocean of complex information your jurors are drowning in. For example, some attorneys’ use of PowerPoint in opening and closing falls far short of its potential. Instead of merely projecting images and bullet-points onto a screen, a PowerPoint presentation can use the slide progression to create structure , organization, and flow to the arguments that simplifies them in a clear, compelling, and memorable manner.
The art of trial strategy really is as simple as psychological satisfaction, fact selection, and presentation organization. Perhaps this is a statement of the obvious, but I also think the examination of the obvious can be one of the most valuable exercises we undertake. Sometimes, the frustrating characteristic of the obvious is that it cleverly hides right in front of our eyes and we can’t see it. If you give your trier-of-fact something he or she can feel good about believing about your case, he or she will find a way to reach a verdict in favor of your client. When on the losing side of these strategies, it is incredibly frustrating and fuels the fire of contempt towards the “incompetent” juries that plague our justice system. But while Aristotle may have been wrong about the perfectly logical human being, one can hardly refute his prolific tip that persuasion starts with audience-based communication. No matter how “incompetent” your jury may be, it’s still your jury and your job to find a way to convince them to render a verdict in favor of your client.