Eminent domain litigation is unique in that prior to trial, the parties know the range of values for the property in dispute that jurors are likely to award. This certainty about damages is unlike many other types of cases in that it allows attorneys to evaluate the risks and benefits of going to trial, as well as the amount of resources they want to spend in trial preparation.
For jurors, an eminent domain lawsuit is unique because it deals with a topic outside of the range of their everyday experience. While jurors may have strong opinions about the right of the condemning agency to take the property, it is outside of their power to stop the acquisition of the property. They can only award just compensation.
Although the issue for the jury in an eminent domain case may appear to be fairly straightforward, there is certainly the likelihood that the jury’s decision will be influenced by biases about the parties and extralegal issues in the case, such as best use and good will. Like any other type of case, issues of jury selection, case evaluation, mock trial research, witness presentation are critical factors in the outcome of an eminent domain case.
Know Your Jury
Trial attorneys in all types of litigation are confronting a jury pool today that is much more interested in and aware of civil litigation, lawsuits, and jury selection. Litigation is newsworthy. A brief look at any major newspaper, as well as publications oriented toward business, entertainment, sports and science, shows that legal issues and litigation are topics of great interest to American society.
In the past, the jury selection process was a mystery for most citizens. At most, ten to twenty percent of the jury pool had ever participated as a juror in any type of trial. Further, participation in a trial did not mean that jurors necessarily understood challenges for cause, peremptory challenges or the rules governing voir dire. While the juror selection process still remains somewhat of a mystery, with all of the media publicity surrounding certain trials, there are considerably more people with strong interest and opinions about the process.
However, the typical jury pool consists of an increasing number of people who face greater demands on their time from work and family. Those time pressures decrease their willingness to serve as jurors. If selected, these impatient jurors share little tolerance for unnecessary delays in a trial. They become irritated if attorneys cannot seem to ask a question correctly, if they are redundant or if they appear to be disorganized. For an example, in a recent trial in Texas, several jurors stated somewhat jokingly that the day and one half they had spent in jury selection constituted mental distress, and they wanted to know where they could file a claim.
How do these developments affect the trial attorney who is handling an eminent domain case? The main impact is that jury selection has gotten more complicated. There is more “noise” in the process caused by publicity and the pressures jurors feel to get out of jury service and on with their lives. This “social noise” can make it more difficult for attorneys to form an opinion about jurors’ suitability. Jury selection is often rushed without enough time allowed for a thoughtful voir dire. Even though jury selection has become more difficult, there are tools, such as juror questionnaires that can help an attorney identify biased jurors.
Ways of Looking at Jurors
There is no generic jury profile of high priority strikes that would be appropriate for all types of eminent domain litigation. There are, however, several guidelines that one may use to intelligently evaluate the jury pool for an eminent domain case. A demographic analysis of the jurors is probably the most simple and straightforward way to initially size up the jury pool. In certain areas of the country, demographic factors are more highly correlated with juror attitudes and verdicts. These factors are also included on most, if not all, juror questionnaires, so they are particularly useful when little or no other information is provided.
For an eminent domain case, age is commonly a factor in jury selection. From the government’s point of view, younger jurors may not have the business experiences that would be most desirable on a jury panel. In one of our post-trial interviews where we call up jurors who have served on cases and ask them about their experiences, one of the jurors said, “There is a difference in the thinking of younger people and people over fifty. I’m sure I do not think the same as I did when I was twenty. I saw this throughout the deliberations. Younger people don’t appreciate the value of money. They award too much.” This type of life experience is definitely something to consider in jury selection.
Status inconsistency is another way to look at jurors. This refers to jurors’ education and experience levels and how appropriately they are matched to their current or previous jobs. There are two directions this inconsistency can take. One is upwardly status inconsistent. This refers to a person whose achievements are beyond what you might expect from their educational background. An example would be a high school graduate who is in a management role in a company, or a successful saleswoman who did not graduate from high school. The opposite is a downward status inconsistent person. This type of person is one who has a high level of education but a lower status job. An example may be a taxi driver or a waiter with a graduate degree. Status inconsistency obviously must be evaluated on a case by case basis, but it is a red flag to look for in evaluating potential jurors. In eminent domain cases, property owners who can present themselves as “victims” would prefer downward status inconsistency, whereas government entities would prefer upwardly status inconsistency.
Discovering Attitudes and Why They Matter
There is a consensus that next to life experiences with case issues, juror attitudes are the best predictors of how jurors will react to a case. The most obvious attitudes to examine for an eminent domain case are attitudes toward the government and the agency involved in the claim. Do jurors believe the government agency carries out the desires of the population and cares about the rights of citizens? Beliefs about eminent domain on the specific project or the type of property would also need to be assessed. Attitudes and experience with a valuation or purchase of property are also important to discover.
In general, anxious jurors have more difficulty thinking logically about the case facts. Their anxieties undermine their abilities to hear both sides of the case. Jurors who are anxious about losing their home or business would not be good jurors for the government’s side in an eminent domain case. Probing these ‘worried owners’ during voir dire is important.
One personality type to be aware of during jury selection in a case involving eminent domain is the authoritarian type. These individuals tend to be rigid in their thinking, see things in black and white, and are overly deferential to authority. These people are usually dressed up for court (even though they may not need to dress up for work), tend to give short answers, and frequently use ‘sir’ and ‘ma’am’ when addressing attorneys. In an eminent domain action, these jurors would defer to authority and follow the rules.
One way of determining if jurors have strong opinions about a matter is observing how quickly they answer a question. Generally the more quickly a juror answers a question, the stronger he or she feels about the answer. A good way to use this idea is to ask the panel how many people feel strongly about a key issue such as local government or the government’s right to acquire property.
One caveat about addressing juror attitudes is that people will answer almost any question. This in and of itself does not mean that they have a strong or well developed opinion. For example, jurors may answer a question about their opinion on dairy farms, but those attitudes may not be well formed and could easily be changed. Thus the response to the question would have little value for the attorney in assessing how a juror would respond to a case. To probe for strength of an attitude, jurors can be asked how much they have thought about a particular issue or how important a value or belief is to them.
Use of Juror Questionnaires
One way to provide a higher quality jury selection process is to use a pre-voir dire juror questionnaire. While most eminent domain cases are relatively short, for a case lasting more than one week, a brief juror questionnaire can be used to probe juror attitudes about the key case issues and the parties involved. Jury research has shown that juror questionnaires provide a more valid measure of juror opinion and assure that all jurors have answered the questions. An obvious benefit of a questionnaire is that it shortens the amount of time it takes to select a jury. Here is the procedure we recommend for administering juror questionnaires:
- Motion for Adoption
- Agreement by Both Sides on Content
- Panel Sworn; Questionnaires Filled Out
- Panel Sent Home; Copies of Questionnaires Made
- Oral Voir Dire Begins Next Day
As can be seen from the recommended procedures, after one side moves to use a juror questionnaire, both sides have to agree to the content of the questionnaire; that is, they have to agree on what questions will be included. To facilitate agreements, attorneys often will agree not to object to each other’s questions. Notably, those questions most commonly objected to in a questionnaire are those that are most commonly objected to in court; e.g., a question that asks a juror to indicate their leaning or preference in the case.
One drawback to the use of juror questionnaires is that attorneys need to be allowed time to review the completed questionnaires. We usually recommend that the questionnaires be administered in the morning and jurors dismissed until the next day. While copies of the questionnaires are being made for both sides, the attorneys can argue motions to the court.
It is extremely helpful if the court numbers the questionnaires in the order in which jurors will be called into the jury box. The clerk randomly assigns the number before copies are made. When this is done, attorneys are saved the time-consuming task of reviewing all of the questionnaires equally and simultaneously. Enabling the attorneys to focus their attention on the questionnaires of those prospective jurors most likely to be called into the box makes for a far more reasonable, rational, and higher quality voir dire process.
Use of Mock Trials in Eminent Domain Litigation
For eminent domain cases, the difference between the two sides valuation of the property, and therefore the range of value for the case are known in advance. When that difference approaches a significant amount, it is likely that both sides would seriously consider the use of a mock trial.
The use of mock trials has evolved considerably over the past twenty years. In the past, mock trials were primarily used for large cases. As trial consulting and the advantages of jury research have become more widely known, mock trials and focus groups have become routinely used in all types of litigation, including eminent domain cases.
Another change in the use of mock trials is that decision makers are more aware of the use of mock trials as methods of case evaluation. Ten years ago, in-house counsel were somewhat reluctant to use mock trials to evaluate cases, and outside counsel often had to work hard to convince corporate counsel that a mock trial and the use of litigation consultants were a valuable addition to their trial preparation. Now, jury consultants are frequently used, and public entities are also open to the use of jury research in significant eminent domain cases.
In eminent domain litigation where the stakes are high, it is not unusual for both sides to conduct one or more mock trials. Mock trials are used to develop persuasive themes, to make sure jurors understand the case and to anticipate questions that jurors want answered. Whether jurors simply accept an argument, or whether certain jurors are able and willing to convince other jurors about the merits of their position, can be determined through mock jury deliberations. Another important issue examined in a typical eminent domain case is the impact of bias toward the parties involved. Mock trials are used to detect how juror perceptions of the parties affect juror reactions to the claims and the evidence.
Detecting Lying Behavior
The credibility of fact and expert witnesses is an issue in the decision to litigate or settle a case, as well as a factor in determining the outcome of a case if the case is tried. Despite the fact that credibility is such a significant issue for all parties, social science offers very little in the way of sound advise on how to detect lying behavior. While there are those who claim to read body language, there is little empirical support for those who claim these special abilities. Most studies show people do a little bit better than chance in judging someone’s truthfulness based on their nonverbal behavior. Research also shows that professionals trained to detect deception, such as customs inspectors, federal polygraphers, judges and psychiatrists, were not significantly more accurate at detecting deception than college students.1
Despite the inability of research to provide a formula for detecting lying, there are insights that research can provide about the issue of credibility. One significant fact that attorneys need to be aware of with regard to judgments of believability is that jurors have what can be described as a “truth bias” in making judgments of witnesses. Attorneys are often reluctant in calling a witness a liar. That reluctance is well founded because jurors will defend against that view and resist such a characterization of a witness. A more persuasive strategy is for the attorney to state he doesn’t know why the witness said certain things, but it isn’t consistent with the facts.
Research on detection of deception has revealed an ironic result: negative questioning of a witness results in behaviors by the person questioned that are more likely to be seen as believable. When subjected to intense negative questioning, a respondent is more likely to respond in a shorter period of time, blink less often and give longer statements. All of these behaviors are associated with a more believable performance. The implication is that aggressive, negative questioning of a witness produces a more believable demeanor by the witness.
Juror Reactions to Expert Witnesses
Though a great deal of attention is given to selecting expert witnesses, considerably less attention is given to evaluating their effectiveness on the witness stand. Eminent domain cases always require expert testimony, and to understand how jurors’ perceptions of expert witnesses affect verdicts, read our article on Expert Witnesses.
The Visual Trial
One of the most dramatic changes in trials in the past few years is the increased use of demonstrative evidence in civil trials. Demonstrative evidence is especially helpful in the eminent domain case where jurors often do not perceive the trial as engaging. Visuals can be used for description of the properties as well as for demonstrating the valuation theories of the experts.
The consensus is that use of demonstrative evidence is consistent with principles of cognitive psychology. One of the most critical cognitive functions for human information processing is attention. It is important to remember that jurors have limited attention spans, and they can probably only maintain serious concentration for ten to twenty minutes. After this period, their attention will drift. Demonstrative evidence can be used effectively to capture their attention.
Just as attention is necessary to ensure that information is being received by the jurors for processing, comprehension is similarly critical in order to persuade jurors. One point to keep in mind is that the average educational attainment of jurors is high school or, at most, some college or vocational training. To maximize juror comprehension, therefore, it is important to limit the amount of information presented and to use language appropriate for the cognitive level of the audience.
It is safest to assume that your audience reads, and understands charts and graphs, at about an eighth grade level. Take the time to teach or explain issues, concepts, and vocabulary clearly. Furthermore, present demonstrative evidence as part of the opening statement, allowing the jury to begin processing this information early in the trial. Finally, as trial exhibits are introduced, explain their relevance and how they are supposed to fit into the juror’s decision-making process. Be sure to make the relevance of the exhibit explicit and relate the exhibit to case themes. This will aid jurors’ comprehension and retention of the information.
It is not enough to present your case to the jury in a comprehensible manner and to maintain their attention and interest. When the jurors leave the courtroom to deliberate, they need to remember the important case facts, issues and evidence so that they can argue your case to the other jurors. It is important to remember that visual memory is better than verbal memory. Anything you can emphasize with a visual presentation will be retained longer. For example, jurors will more accurately recall deposition testimony if they are able to look at a written transcript and follow along as it is read to them. It is also a good idea to make visual presentations (such as charts or timelines) as vivid as possible, using color rather than black and white wherever possible.
To facilitate long-term memory for information presented during trial, remember that memory capacity is limited. It is important, therefore, to limit demonstrative evidence to the most important points and not to overdo the number and complexity of the exhibits.
The timing and organization of evidence presented to jurors will also impact memory function. A reliable phenomenon in the study of memory is the primacy/recency effect. People remember best what they heard first or last, so be sure to present key demonstrative evidence as early as possible and review it again during closing arguments. Repetition will also aid memory. It is a good idea, therefore, to revisit important pieces of evidence throughout the trial, if possible. Another useful strategy is called “chunking.” People tend to remember important points in sets of three, plus or minus two, pieces. An everyday example of this is that the grouping of digits in telephone numbers makes a long series of numbers easier to remember. Chunking information in this manner helps most people move it from short- to long-term memory. Therefore, information already prepared in this manner will be easiest for the jurors to remember.
Most attorneys are concerned that if they use high tech demonstrative evidence, they will be perceived as the big guy against the little guy. Jury research has demonstrated that jurors expect good visual presentation. However, there are situations where it is so obvious that extensive visual evidence and exhibits might hurt the side using them. An example would be a case in a rural county with a small sympathetic property owner against the state government. While visuals could be used, the government should refrain from using too many expensive visuals. For most cases, however, visuals are underutilized. Jurors like visuals and they help the side that uses them effectively by clearly illustrating key facts and ideas.