What once was old is not new again. For years trial attorneys relied on shortcuts to make key decisions in the process of striking jurors they believed to be biased against their clients. We’ve heard it all: men are bad for me in this case; we want younger jurors on this one; we want highly educated people on this one. For years, many of those assumptions have been debunked, disproved, and destroyed. In Washington, that evolution has included shifts and even outright changes in the law of jury selection for both criminal and civil trials. But if we know anything about human nature, we know that old habits die hard. And we know that people tend to revert back to familiar and comfortable behaviors. Our very own model of jury decision making — jury economics — includes as a central tenet the idea that juror decision making is egocentric. So, isn’t it fair to say that demographics are part of who a juror is and are critical to how we evaluate a risky juror profile? No. Not according to lots and lots of research.
The belief that simple demographics like gender, age, education, and more, are key to how jurors make decisions is understandable. In many cases where courts do not allow attorney voir dire or allow only limited attorney voir dire, trial lawyers may not have any meaningful information to go on. Yes, we are saying that meaningful nuggets of information could be gleaned from voir dire, and simple demographics are not among them. The fact that some courts do not allow attorneys to learn about jurors in voir dire only proliferates the use of superficial and often unhelpful demographics when making jury selection decisions.
We know that using various demographic factors as a basis for a peremptory strike can be unlawful. Various case law and Washington’s GR-37 prohibit strike decisions in some instances. But what does the research say about why you should rely on other information instead of falling victim to superficial decisions?
First, let’s go back to 1987 when a key study on juror decision-making reached a powerful conclusion. Researcher Christy Visher evaluated the relationship between a handful of different variables and jurors’ decisions in real cases. She found, overwhelmingly, that evidentiary factors were the most powerful predictor of results — not juror characteristics. In her words, referring to the jurors she studied, “these jurors’ decisions are dominated by evidential issues.” Multiple additional studies that followed in the late 1980s and 1990s reached similar conclusions. The evidence matters most. Thankfully.
Fast forward to 2001 when Dennis Devine and colleagues published a comprehensive review of jury decision making research — indeed they subtitled it, “45 Years of Empirical Research on Deliberating Groups.” In that review, they make an even stronger and more pointed conclusion by saying, “…after extensive study, it is now clear that few if any juror characteristics are good predictors of juror verdict preferences.” Instead, they identify twelve characteristics that research shows are consistently related to jury verdicts and none of them identify jurors’ demographics as predictive of civil trial verdicts.
Recent research continues to confirm that juror verdict preferences and jury results are largely unrelated to simple demographics. In our mock trials, focus groups, and survey research projects, we consistently see support for a conclusion that many clients do not expect and do not really like to see: There is no relationship between jurors’ age, sex, education level, or race and their ultimate decisions in the case. Even political leanings, which for a handful of years between approximately 2008 and 2016, were helpful signals for juror attitudes related to various types of civil litigation, have become less and less predictable and more and more dangerous to rely upon.
So where does that leave you and how does a jury economics model of decision-making play in?
1. Experiences. Our model of how jurors make decision includes egocentrism as a key factor. We see it over and over that jurors’ perspective generated from their own sphere of experience is a key filter for how they perceive the evidence and issues in a case. This, however, is different than and much more meaningful than a demographic characteristic. Let’s assume your case involves claims against an employer for a violent threat made to an employee that involved a weapon. Jurors’ sex or gender identification may appear a useful factor. Men are statistically more likely to own and use a weapon, after all. But your case is not decided by a panel of 100 random men. It is decided by specific jurors with unique history, feelings, and experiences that inform their views of the world and of very case-specific situations. It is much more likely that any association between a juror characteristic and a verdict preference is related to experiences in the workplace, regardless of sex or gender. Using juror questionnaires and voir dire opportunities to find out about those experiences is always going to be more valuable than looking at a juror and making assumptions based on what you perceive their sex or gender to be. Simple examples of questions to ask about experiences include:
How many of you have ever experienced tension between two employees in the workplace, including yourself?
How many of you have experienced an employer who could have handled a conflict between employees more effectively? What happened? What role did you play?
2. Values. A second, more powerful route to identifying risk in voir dire relates to another key tenet of jury economics: juror decision making is symbolic. Experiences shape people’s feelings and beliefs and those shaping forces are important. Overarching life values are even more important. We tend to make decisions consistent with our values. This is why environmentally-conscious jurors are higher risk for Oil Company defendants and why “open source” jurors are higher risk for patent-owning tech companies. How can you ascertain juror values? It takes a lot more than considering demographics. It requires inquiring about overarching thoughts and behaviors that map directly (or closely to) case-specific issues. Juror values can guide their verdicts because we often imagine our daily decisions are symbolic of our values, and we tend toward consistency between them. Examples of simple questions you could ask along these lines might include:
If you could change one thing about how corporations treat their employees, what would you change and why?
What do you value more in an employer: consistency or fairness?
3. Attitudes. As you’ve likely heard before, attitudes are the holy grail in evaluating individual juror characteristics and verdict leanings. More than experiences and more than a person’s overarching values, case-specific attitudes are often the most helpful and the most relevant predictors of case-specific leanings. Experiences and values come from jurors themselves. Whether a person has experienced a particular thing or values a particular idea originates with the individual. You can assess attitudes about almost anything and everything, especially case-specific issues. Again, using juror questionnaire items and precious voir dire time to evaluate case-specific attitudes is key. Determining the most critical filters and asking direct, probing questions is the way. Examples of these types of questions might include:
How do you feel about an employer’s obligation to protect its employees?
To what extent should an employer be involved in a conflict between two employees that originates after work hours?
Does an employer have an obligation to keep its employees safe from co-workers who spend time together outside of the workplace?
Ultimately, the old habit of relying on simple, unrelated, and unpredictable demographics to make jury selection decisions means relying on the wrong stuff. Those habits can and should rely on the right stuff, including the many opportunities afforded by Washington courts’ liberal use of juror questionnaires and attorney voir dire.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
