In recent years, we’ve read and heard many describe American culture as having entered a “post-truth” era. The headlines are numerous, often with references to the rise of misinformation and blind political partisanship. But it doesn’t stop with politics. We’ve seen this label applied to jury decision-making as well, but too often it tends to come in the form of a casual reference to capture the general perceived “craziness” of jury decision-making these days with no meaningful explanation or discussion of its very practical implications.
Looking back, it seems the proliferation of this label started with the first election of Donald Trump in 2016 and then ramped up during COVID as the nation debated the science of coronavirus, vaccines, and medicine in general. Oxford Dictionaries nominated “post-truth” as the “word of the year” in 2016. The definitions vary but most reference the blurred lines between facts and opinions, disregard for truth, and the general decline of facts and evidence in debates and discussion. Truth, in many regards, no longer matters. Many writers speak of it with great disdain, some describing it as a big step toward narcissism and others suggesting it signifies the end of civil society. Ultimately, the most common use of the phrase seems to be in the form of a complaint about the ways things are these days.
In this column, we will take a deeper look at the forces behind our “post-truth” culture and examine the practical implications for trial strategy.
The central tenant of the “post-truth” label is society’s prioritization of personal beliefs over facts and scientific evidence. While most of the “post-truth” literature focuses on the elevation of personal beliefs, we would add that it is also the elevation of personal experiences.
But why is this happening? There are two primary reasons. First, there has been a well-documented decline in trust in just about everything: government, large corporations, religious institutions, police, schools, hospitals, small businesses, and many more. This directly translates to the decline of experts and authorities because people no longer trust the kinds of institutions at the core of expertise and authority. On top of that, people are simply overwhelmed by the amount of information available to them. The internet gives us an endless source of information and while everyone knows it is full of misinformation, most people struggle to differentiate the credible information from the less-than-credible information. Siloed media results in the common experience of one news story reporting on the “facts” of the event, while another reports on how none of those facts are true. The end result is that people do not know what to believe and struggle to understand what is real. In the face of this overwhelming uncertainty, it is only sensible that people defer to their personal experiences and beliefs. Personal experiences and beliefs have become the most “real” and reliable tools people have available to them to try to understand what is true and what is not.
This has two immediate implications. First, our long-held focus on jury de-selection is more important now than ever before. A juror’s prior personal experiences and their beliefs about the way the world works will be the primary filters through which they evaluate the arguments and evidence put forth by each side. They will reject evidence that goes against their personal experience and embrace that which is consistent.
We see this in action in almost every mock jury we watch. We once watched a mock juror reject key defense evidence in a foodborne illness case because of her own experiences with getting sick from restaurant food. While the evidence was overwhelming that the initial symptoms of foodborne illness do not appear until 6–8 hours after the meal was eaten, this mock juror had an experience where she was certain a particular restaurant was the source of her illness even though she became ill only an hour after she left that restaurant. She rejected the defense evidence and found for the plaintiff. We recently watched a mock juror outline the HR processes at her workplace and use those processes to judge defendant company’s HR actions. As a result, she came up with her own, independent reason why she believed the defendant was liable even though it was not an argument put forth by the plaintiff.
Jury de-selection, which focuses voir dire on identifying people with experiences and beliefs that cut against your case theory, may seem simple and obvious, but we continue to be shocked by the number of trial attorneys who make no effort to de-select, instead getting caught up in theme-building, priming, or whatever the voir dire workshop “trick of the day” seems to be at the time. The idea of priming seems just a bit too attractive to trial attorneys, even though there are no studies supporting the effectiveness of this strategy and the few that have been done actually show priming efforts in voir dire can actually have the opposite effect. Ironically, continuing to focus on priming in voir dire in the face of the research that suggests it is counterproductive and unhelpful makes the guilty attorney a “post-truth” litigator in a sense.
The strategy implications of our “post-truth” era do not end with jury selection. At its core, the “post-truth” evolution is about people desperately looking to make sense of things and relying on tools that “feel right” to them. Unfortunately, what “feels right” is not always what actually is right. Too often, attorneys focus on proving their case instead of persuading jurors, which are distinctly different things. It does not matter how much evidence supports an argument if that argument does not “feel right” to jurors. A classic example is the belief that large corporations put profits over safety. This is a widely held view. Jurors are skeptical of large corporations, which is why it is so ineffective for defense attorneys to dedicate a portion of their opening statement to how wonderful and caring their corporate client is. Jurors don’t buy it because it does not resonate with them. Instead, it is more effective for these attorneys to show how the profit motive leads their corporate client to make safe decisions. In other words, the defense can highlight how safety is more profitable for the large corporation than the alternative. This directly aligns the defense case theory with what “feels right” to jurors, namely that profits drive corporate decision-making.
To sum up this point, a “post-truth” strategy cares less about the amount of evidence and instead focuses on highlighting evidence that resonates with jurors or “feels right” to them. It doesn’t matter how much evidence you have if the evidence goes against what feels right to jurors, just as it was with the juror in the foodborne illness case. This is one of the greatest values of mock trials and focus groups; they give the trial team a dataset for understanding what evidence and testimony “feels right” to the jurors.
The final implication is another trend that coincides and interacts with the “post-truth” evolution. All signs point to the rise of juror activism (nullification in many instances). In the face of confusion and uncertainty, not only are jurors deferring to what “feels right” to them, but they are also incorporating what they want to be right about the world. In a day and age where so many people feel disempowered and helpless when it comes to societal issues, jury duty is one of the few instances where people feel they can spur meaningful change. Many jurors refuse to let this opportunity pass without taking advantage. In mock trials, we see more and more speeches about what a verdict can accomplish beyond making the plaintiff whole. Jurors want to use their verdicts to spur change even when punitive damages are not a claim in the case. Instead, jurors just lump their “punitive” award into their noneconomic damages award. Here’s a quote from a mock juror in a recent mock trial:
“Juries awarding verdict and making judgments and all this stuff…that’s where you have the power to change what is happening. If a jury thinks that what is going on is wrong and shouldn’t be happening, they make their voice known with the verdict and the award they give to the plaintiff. That’s where people have the power. That’s the whole purpose of the court system and juries.”
The implication of this trend is that case theories must align with the world jurors want. Jurors want the simple story of how a vote in your client’s favor accomplishes justice. It is a basic rule of decision-making that people prefer to make decisions they can feel good about. In our strategy development exercises, we always ask members of the trial team to draft single sentences that encapsulate what a verdict in favor of their client accomplishes. It is so important to engage in this exercise of clearly writing it out. So often, attorneys think there is an obvious “feel good” element to their case, but struggle when it comes to clearly articulating what it is that jurors should feel good about. Sometimes, it may be as simple as forcing the plaintiff to finally accept accountability for his or her choices.
In summary, while most who write about this new “post-truth” era do so with a sense of helplessness toward what our society has become, there are very practical implications that can directly impact the likelihood of success at trial. “Post-truth” is not simply a criticism of people who make decisions we don’t agree with. Instead, it is a map for understanding how to better connect with jurors in this day and age.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver.
