Changing Attitudes in Employment Cases

By Craig C. New and R. Craig Smith
In the past five months, company payrolls have lost 400,000 workers. More than 2.5 million jobs have vanished since the economy slid into recession in March of 2001. The labor crisis is becoming more acute and problematic each day. The collateral impact of these dramatic changes on employment litigation cannot be underestimated. A spate of new issues are being raised at both federal and state governmental levels, such as overtime pay, health benefits, and gender accommodation. Mass layoffs at companies such as Boeing and American Airlines foreshadow increased scrutiny of layoff and retention criteria, and will force employers and lawyers alike to heed the potential for creating entirely new group claims and class action issues. These claims and issues will certainly change the complexion, if not the substance, of many cases that find their way into courtrooms across the country.

Employment litigation, a practice area that a decade ago primarily dealt with the fairly straightforward issues of race, sex, age, and gender discrimination, has taken on several new dimensions in the wake of these changes. It is therefore becoming increasingly important for both plaintiff and defense lawyers to have a basic understanding of the dynamics of changing juror attitudes and experiences related to issues in the workplace.

In 2003, Tsongas Litigation Consulting completed the first comprehensive survey of juror attitudes in the Pacific Northwest. Attitudes toward a number of practice areas were examined, including a specific focus on the area of employment litigation. This survey research, combined with data from mock trials, focus groups, and jury debriefings, has allowed us to make the following general conclusions about employment cases.

Credibility is key. The credibility of the parties involved in the case is vital. On the defense side, jurors will assess the credibility of the company through the individuals representing it. Those individuals become the company in the eyes of the jurors. It is not enough to have someone of authority represent the company and testify about the facts, regardless of how compelling that person may be.

Jurors will be asking themselves, “Would I like to work for this person?” The answer to that question will color the jurors’ perceptions of the evidence. If the answer to that question is “No,” then the bias this reaction creates will be extremely difficult to overcome through other evidence.

On the plaintiff side, credibility often rests with one individual. Putting a plaintiff on the stand without thorough and careful preparation can instantly nullify an apparently powerful case. In class actions, selection of representatives to testify warrants careful consideration and preparation to achieve the credibility.

Lawyers are often so involved in managing the case, dealing with legal issues, and organizing the evidence for presentation, that they overlook ensuring that the individuals they put on the stand are well prepared and credible. Even if the witness has a great story to tell, the story will not be given the weight it deserves if the jury does not like that witness.

Personal experience matters. Most jurors have held several different jobs during their working lives. Our survey showed that jury-eligible citizens in the State of Washington, on average, have held 3.5 jobs within the last ten years. This immediately differentiates employment cases from other types of cases (e.g. patent case) because the jurors step into the jury box with well defined and directly relevant, at least in the jurors’ mind, experiential information. These experiences, whether positive or negative, will invariably be used by jurors to help make sense of the case.

Further, in the mind of a juror, an ounce of personal experience can often outweigh a pound of evidence. Jurors may claim to be neutral during voir dire, but their personal experiences may lead them to form impressions favoring one of the parties at trial, even before any evidence is presented. Jurors with such experiences become, in essence, the non-testifying experts the attorney never gets to cross-examine once voir dire is over.

Our survey showed that only 25% of Washington respondents say they would favor neither party in a case where employees are suing their employers. Further, almost half of Washington respondents (46.5%) admitted they would lean toward the employee, without knowing anything at all about the case.

Attitudes reign. Of all the attributes jurors possess, attitudes are the best predictors of juror behavior. Past experiences play an important role in shaping attitudes, as do other factors such as case-relevant knowledge and past behavior. Regardless of their source, attitudes exert a substantial influence on the way individuals attend to, process, and remember information.

People tend to pay more attention to, and remember better, information that supports their attitudes. For example, 32.5% of jury-eligible Washingtonians hold an unfavorable opinion of corporations. These jurors, because of their attitudes, will tend to pay more attention to “bad facts” about a corporate defendant in an employment case than will jurors who have more positive opinions of corporations. Jurors with negative opinions of corporations will also be quicker to recall these negative facts during deliberations, since “bad facts” support their attitudes. The “good facts,” in contrast, will be given less attention and be remembered less frequently as jurors form their final judgment in the case.

Further, in spite of jurors’ best efforts and instructions from the court, attitudes are extremely difficult to set aside when judging a case. Several lines of social psychological research have repeatedly shown that individuals are incapable of setting aside relevant attitudes when making judgments, and findings from our mock trial and focus group research consistently show the same result. It is imperative to utilize the best available resources, methods, and questions to identify potential jurors holding unfavorable attitudes and experiences, and eliminate these high-risk jurors during voir dire.

In an increasingly diverse and complex society, it is seldom a simple task to uncover bias and prejudice. An attorney cannot merely ask people if they have opinions that might be damaging to a case and expect a useful answer.

Direct questions about bias and prejudice are not feasible for at least two reasons. First, potential jurors often do not realize the extent, potential effects, or even the presence of their biases. Bias usually operates in a relatively unconscious fashion, making it difficult for the holder of bias to realize its presence, much less set it aside.

Second, bias and prejudice are attributes that are generally frowned upon by society in general, and the court system in particular. Psychology has shown that people are motivated in public settings to present themselves in a manner they perceive to be socially desirable. Therefore, even if potential jurors are aware that they harbor a bias that may be detrimental to your client, they will not volunteer this information because bias is socially unacceptable. Further, the boundaries of social acceptability vary with geographic region, cultural group, and time period, making it even more difficult to identify concerning levels of bias.

However, there are ways to minimize these social desirability effects in identifying biases. One of the best methods of promoting juror candor and of uncovering bias is the use of a supplemental juror questionnaire. Individuals are much more likely to report socially unacceptable attitudes in the relatively private activity of completing a questionnaire than in the public forum of oral voir dire.

Another method is to ask questions, either on a questionnaire or in voir dire, designed to indirectly measure bias. In a discrimination case, for example, potential jurors can be asked how “common” they believe various types of discrimination are. Such questions can open the door to more revealing, open-ended follow up questions, such as, “What makes you think that form of discrimination is common [uncommon]?”

A second example of indirect questioning is to ask potential jurors about the level of bias of their friends or neighbors. People, in general, surround themselves with others who hold similar opinions and who have similar views on many issues. A question about a potential juror’s friends will likely reveal that juror’s opinions, but removes the attribution of that bias from the juror to a third party, creating a more inviting atmosphere for forthright responses.

Taking advantage of the basic research methods available to litigators today, such as community attitude surveys, mock trials, and focus groups, will help attorneys understand how juror attitudes and experiences interact with the case issues. Such tools can also be used to flesh-out issues that merit more careful consideration for settlement or at trial. A tightly focused case strategy session can also be helpful in precisely defining the most persuasive story the evidence will support at trial.

Understanding juror attitudes and experiences is essential to developing effective jury selection and case presentation strategies. Jurors in employment cases can be encouraged to share their own experiences and opinions in jury selection. They surely will not hesitate to do so during deliberations. In jury selection, this sharing of experiences allows an open window into jurors’ thinking. Failure to utilize this opportunity is to leave an invaluable increment of advantage on the table.

For further information on the Tsongas Northwest Juror Attitude Survey, contact R. Craig Smith at (206) 382-2121 or Craig New at 1-888-452-8019.

R. Craig Smith, Senior Trial Consultant in the Seattle office of Tsongas Litigation Consulting, has been a trial consultant for 20 years. Joining TLC in 2002, Smith spent the prior 12 years in the Los Angeles area where he was a frequent speaker, CLE provider and contributing writer to law-related publications. His experience emphasizes presentation strategies, demonstrative evidence and the visual aspects of the trial processes.