Back to the Basics: The Essentials of Jury Decision-Making
What the heck is happening with juries? If you are a litigator, you have had some form of this conversation over the last few years. It is being discussed everywhere…at the watercooler, in CLEs, in private plaintiff listservs, in corporate in-house retreats, and more. We’ve even had judges pull us aside and ask us our thoughts on the matter. Everyone seems to have a story about something crazy a jury did in their case or a colleague’s. And we’ve all seen the headlines about extraordinary damage awards in some cases. Plaintiff attorneys now think every case is a seven-figure case while some defense attorneys are truly convinced there is an actual, physical reptilian part of the brain that is driving all this. And last we heard, Reptile authors Don Keenan and David Ball are still wondering why everyone ignores their recommendation (from the same book and theory) to incorporate scripture into every case presentation.
Throw in the holidays, rising conflict around the world, a “friendship-ending” presidential election, and the world does indeed seem to have gone mad. Yet, as we finish the year having watched more than one hundred mock jury deliberations this year alone, it is apparent to us that nothing has changed. Instead, we find that many attorneys are not using the right tools to explain what they are seeing, which leads to frustration and “old man yelling at the clouds” or “kids these days” declarations that juries are [different/dumber/weirder/angrier or whatever other adjective you would like to use] “these days.”
Predictably Irrational by Dan Ariely is one of our favorite books as most readers of this column likely know by now. The book is great, but the title is brilliant and perfectly captures the reality of jury decision-making. What is happening with “juries these days” is no mystery. We know exactly what is happening and jury economics gives trial attorneys the tools to successfully navigate what might seem like treacherous waters. So, as we enter the sixth year of this column, we want to go back to the basics, identify the key tenets of jury economics, and specifically show how these can be used as practical tools for building a persuasive case presentation.
What is the simple question in the case? Other than Ariely, another of our most-cited authors is Daniel Kahneman. Like Ariely’s book title, Kahneman has a simple quote that beautifully captures the first tenet of jury economics, that jurors are economical: “This is the essence of intuitive heuristics: when faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.” Jurors are always looking for the easy question to answer in the case and they will find one whether it comes from you, your opposing counsel, or something they make up on their own in the deliberation room. They want the most simple, efficient, and compelling path to a verdict. They want the easier question, not the difficult question as Kahneman points out.
Practically, the first thing a trial attorney must determine is whether juries can realistically understand the issues in their case. This provides insights into how far you must go to simplify the question. There are many cases where it is unrealistic to expect jurors will understand much of anything. Patent cases come to mind. Patent cases are typically complex involving incredibly confusing detail about some sort of technology. The problem in these cases is that, even if you can get a few jurors who actually understand all the details, it is unlikely they are going to be able to re-articulate those details to the other members of their jury in a compelling way. In this situation, it is essential that you give jurors an easier question to answer instead.
Your first reaction to simplifying the question may be that you have little influence over the verdict form and that the verdict form questions are what they are. But the easier questions are most effectively posed to jurors in the larger thematic messaging of the case. It is not necessary that they literally be on the verdict form. A few years ago, we worked for a defendant in a patent case involving smartphone technology. The plaintiff owned a 2008 patent for an invention that they argued all smartphone technology relied upon. They had sued every smartphone maker and every cellphone provider. Our client was the second trial to go, which followed a devastating loss for the defendant in the first trial. Our mock trial data confirmed what we knew, which is that jurors would struggle to understand the details of the technology in question and would likely default to common attitudes that favor plaintiffs in these types of cases. This sent us looking for easier questions to pose to the jury and we found one that changed everything. The trial was in 2023. The patent was from 2008. The one thing we knew every juror could immediately understand is that cellphones in the years leading up to trial were drastically different than cellphones in 2008. The first iPhone had only just come out in mid-2007. Consequently, our thematic question to jurors was whether it makes any sense that smartphone manufacturers in 2020 would be using old and outdated technology from 2008. That was the central thematic question we posed at trial. It was the centerpiece of our opening statement, and we organized our direct and cross examinations around it, highlighting at every opportunity why we thought the 2008 invention was old and outdated. We tested this in a mock trial and the results made it clear this was a path to success, so we went to trial and we won, averting what would have amounted to half a billion dollars in exposure for our client.
This is the kind of practical strategy decision that the first tenet of jury economics highlights. Jurors are economical and want a shortcut, even if they don’t realize that is what they are doing. And they will find one. As the times change, jurors will find new and creative thematic shortcuts, but the underlying process of finding the easier question remains the same. There was a time when jurors across the country commonly referenced Enron as the example of corporate conduct. Then it was Martin Shkreli and “big pharma.” Events at the time this writing suggest United Healthcare might be the next reference point for corporate conduct. Jurors have similar shortcuts for how to think of overreaching plaintiffs, irresponsible business litigants, and more. The examples have changed over time but the shortcut way of thinking about corporate conduct has not. Your job as trial strategist is to find that easier and more compelling question that gives jurors a clear path through all the confusion.
Where do jurors find their shortcuts? The second tenet of jury economics, that juror decision-making is egocentric, highlights the most common source for jury shortcuts. When jurors are not sure what to believe, they focus on what is real to them. They adopt an egocentric approach where their personal experiences and opinions become the foundation against what they judge as true or untrue at trial. For example, jurors who have had negative experiences on the road with truck drivers are more likely to believe truck drivers drive recklessly, which will likely impact the way they see the facts in a case involving a truck driver. Similarly, jurors who have been discriminated against in the workplace are more likely to believe discrimination is common in the workplace, which makes it easier for them to believe discrimination claims by a plaintiff in an employment case. The evidentiary bar is essentially lower for them because the plaintiff’s claims feel more real to them. They hear, absorb, and amplify arguments that extend into a new realm or context the ideas they already believe. They tell us after the fact that a particular attorney or a particular argument was “more relatable” or “made more sense to me” precisely because the person and/or the appeal aligned with their personal reality.
Jurors openly acknowledge this egocentric approach. Beyond personal experiences, several national surveys, including those conducted both before and after the pandemic by Sound Jury Consulting, found that over 70% of jury-eligible respondents said they would go with their personal values over the law in a situation where the two were in conflict. It’s tough for jurors in cases where one side is saying one thing, the other side is saying the exact opposite, and there is evidence supporting both sides. Jury economics tells us that when jurors are faced with these situations where the evidence does not definitively point to one side being right, they will defer to their own personal experiences and opinions to determine what is right. We have heard numerous mock jurors literally say they believe one side because their claims “feel more true,” as if truth is best found by a feeling.
Practically, this means trial attorneys need to understand the jury pool’s personal experiences and opinions. What is their starting point? These directly influence what feels true and false to jurors over the course of trial. Everyone is different, but there are common trends within jury pools. King County jury pools for example tend to be more educated than other venues and that higher education can impact how they approach, hear, absorb, and re-articulate the case. Beyond simple demographics though, there are common threads in the local culture that are important to recognize and understand. If you were trying an employment case in the early to mid-2000s involving questions about the employment status of plaintiffs, jurors would inevitably consider and discuss the Microsoft independent contractor case. There was a period in Illinois when it was difficult to present trucking accident cases without jurors bringing up how their governor had been convicted and sent to prison for a scandal in which truck drivers were illegally obtaining driver’s licenses in exchange for bribes to those working immediately under the governor. These popular local stories, along with jurors’ actual personal experiences, contribute to jurors’ personal reality within the venue. Jurors use that sense of what is real to determine what is fact and fiction in your case at trial.
This might be one part of the explanation for why mock trials and focus groups are occurring at unprecedented rates these days. They offer an incredible tool for understanding the common experiences and beliefs that jurors will use to make sense of the case. As one of our clients told us this week, “It is invaluable to hear what regular people who don’t know the issues think about the issues.” You get to see first-hand how these personal experiences and local stories are used to make sense of your case. And while the common personal experiences in your jury pool may change over time, the fact that jurors draw on their personal experiences to make sense of your case has not changed and will not change.
Most important, this second tenet of jury economics should directly impact your jury selection strategy. If personal experiences and opinions are the most influential filters for accepting or rejecting evidence presented at trial, it is important that attorneys directly address them in voir dire. Attorneys have come up with lots of clever strategies for jury selection over the years, but none of them improve upon the tried-and-true strategy of deselection where attorneys specifically probe for experiences and opinions that will likely lead jurors to reject their case theory and evidence. Yet, as simple and obvious as this seems, so many attorneys opt to fill their voir dire time doing things other than deselection.
Why does it matter? The final tenet of jury economics, which says that jury decision-making is symbolic, essentially asks attorneys to consider how and why a verdict in their client’s favor should matter to jurors. What is the symbolic meaning of the evidence and the psychological satisfaction that comes with finding in favor of one party of the other? Jurors want to arrive at decisions they can feel good about and that satisfaction is most often derived from the symbolic value of the verdict. Let’s take the popular Reptile theory for example, setting aside for now all the evidence that disproves the “science” behind Keenan and Ball’s theory. In Reptile, the goal is essentially to scare jurors into finding for the plaintiff. If the plaintiff attorney can create the sense that the defendant poses a threat to the community (and more importantly, to jurors and their families and friends), jurors will render a verdict that counters that threat. In reality, we all know a verdict does not actually reduce or eliminate a threat but that is beside the point because of the verdict’s symbolic role. Jurors use the verdict to send a message to companies like the defendant with the desperate hope that the result will be a change in conduct moving forward that prevents tragedies like this one.
Similarly, jurors are often unreasonably critical of motorcycle drivers injured in accidents who have filed lawsuits. In those cases, the plaintiff motorcycle driver often becomes symbolic of all the frustrating things jurors see motorcyclists do while driving. The opportunity to blame the motorcycle driver in this particular case is cathartic. It allows many jurors to speak symbolically about something that annoys and frustrates them. It is a rare opportunity for a voice.
Symbolic decision-making is present in every jury deliberation, both what drives the verdict and in how they make sense of the evidence since they are most likely to embrace the evidence that symbolically reinforces the case narrative they have adopted while rejecting or explaining away evidence that goes against that case narrative. This is why it is so important for trial attorneys to identify the symbolic focal points early in the case. They can help drive discovery by giving attorneys a clearer picture of what evidence they need to collect to establish the symbolic value behind their case narrative and the verdict they want jurors to arrive at.
There are so many ways to address the questions that these three tenets of jury economics raise about case strategy development, but the easiest is for you and your team members to get in a room and spend time brainstorming the direct and concrete ways they apply in your case. Talking these questions through, especially early in the case and then again towards the close of discovery, gives clear direction for the case presentation and trial and helps ensure that you are meeting your jurors’ essential needs.
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.
