Strategies for Minimizing Damages: Evolving Juror Attitudes and Strategies for Uncovering Bias

The art of asking skewed questions: reveal your strikes, hide your keeps

Why are these questions good defense questions? A good question is not just one that shows a statistical relationship to how jurors vote on your case outcome or on damages. A good question also has a typical distribution of answers that reveals your strikes but hides your keeps. Another way of saying this is a good question is skewed in your favor. If you plotted the above data on a line graph, you could see that the line defined by the data is in fact skewed—it would cut sharply from top left down to the bottom right, rather than being a straight line or a bell-shaped curve. What this means is that when you ask either of these questions, your best defense jurors remain hidden in that 70%+ majority who agree that there are too many lawsuits these days or that damages are too high. Only a very small number of jurors relative to the total answered “about right” or “too low.” We know from research that jurors who answer “about right” or “too low” are ripe for striking as strong plaintiff, high damages jurors.

How to ask a good skewed question

Even if you don’t have the benefit of pre-trial research or a good trial consultant, you can learn to formulate your own skewed questions. The key is to phrase your question so that only people with extreme views against you are likely to choose one of the answers, leaving the majority of jurors, including your good defense jurors, hidden in the pack. (That’s hiding your keeps.)

Focus on anti-corporate attitudes and sympathy

As we discussed earlier, the emotional hot button for plaintiffs is damage attitudes. It is important for the defense to counter some of the strong themes and anchors plaintiffs give in voir dire by probing on damages questions as well. However, the defense is not likely to win many cause challenges by probing on damage attitudes. One emotional hot button for the defense is anti-corporate attitudes. Another is sympathy for the plaintiff. Those are the areas that typically present your best chance at eliciting grounds for cause challenges and identifying high damages jurors.

Developing cause challenges

Some states, like Texas, West Virginia and Florida, have rules that dictate dismissing for cause jurors who clearly express bias or prejudice. However, in most states, achieving successful cause challenges is not so easy. (In Federal court, of course, it is even more difficult since most Federal judges allow only very limited attorney voir dire.) Judges typically do not like to grant cause challenges, often because they are afraid they may have to call up additional jurors or extend the voir dire period beyond what they had planned. However, an experienced trial attorney knows how to achieve cause challenges and is willing to go the extra distance to obtain such a challenge. The motivation and ability of attorneys to achieve cause challenges vary widely, but these are skills that you can develop and improve through study and practice.

Here’s what you need to do to achieve successful cause challenges:

Adopt a proper attitude and demeanor

Jurors who admit to bias usually will only do it if they are speaking with someone who appears to be open to them and is actively listening to what they say.

Don’t treat your juror like a hostile witness

Bias is almost never admitted under conditions approximating cross-examination. Jurors, like witnesses, feel trapped and assaulted by a barrage of close-ended questions that offer them no room to explain. You should be conversational, establishing a dialogue with the group. Encourage the jurors to ask questions and to raise doubts. This empathic demeanor is highly effective at getting jurors to confirm their prejudices.

Use silence

Another simple strategy is to talk slowly with the juror and to use pauses to create pressure. Using silence gives time for jurors who feel doubts or are conflicted to feel their own discomfort or uncertainty, increasing the chances that you will get them to acknowledge their predisposition or bias. (Many times, jurors are not fully aware of their own conflicts or biases.) Using silence also creates social pressure, as other jurors, who have already heard everything that has been said, are watching and waiting.

Evoke jurors’ emotional commitments

Lawyers are in general a rational, analytical, text oriented bunch. Most jurors are not. Most jurors will not be responsive to questions about what they think about case-related issues, what they remember from what they read in the paper or saw on TV, or what their opinions are about contemporary issues. If you are one of those rational, analytical types, you need to take a deep breath and shift personas. You will find yourself getting different answers if you ask jurors how they feel about case-related issues, what watching that news story on TV did to their gut, and if it’s true that they seem to be uneasy with making a big decision like the one in this case. Eliciting strong juror emotion is one good route to a cause challenge.

In smaller communities, where the dense nexus of social relationships ensures that many people in the pool will have some kind of relationship with the plaintiffs, try to evoke in the juror what it would actually feel like to sit in judgment on a case involving their neighbors, fellow church members, or old family friends. A good question to ask is, “So, Mr. Jones, if you were a juror in this case and having heard all the evidence, you decided that your neighbor really didn’t deserve any money at all, how would you feel the next time he came over to borrow your lawnmower and you had to look him in the eye? Would that be difficult for you?”

Interestingly, we have found that it is easier to get challenges granted for feelings of sympathy or compassion rather than for feelings of anger or hostility. Judges appear more understanding and less aggressive about rehabilitating a juror who feels sorry for a victim than for a juror who simply dislikes product manufacturers. In cases where sympathy will be an issue, this is often the more fertile area of voir dire for cause challenges.

Don’t hit prospective jurors over their heads with the notion of being fair

The worst question you can ask is, “Can you be fair?” It is the rare juror who will answer, “No,” and you have then just rehabilitated your own strike candidate.

If you feel you must use the fairness language, do so in a way that does not pose the issue in such stark black or white terms. One method is to encourage the juror to compare him or herself to other potential jurors: “Now, Mrs. Martinez, are you honestly telling that someone like yourself, who had a parent die of cancer due to toxic exposure, would not have a more difficult time being fair in this case than someone who does not have your experience?” A key is to remind the juror of the specific details of the experience and/or attitudes that make it unlikely she can be fair, rather than just asking the juror an abstract, de-contextualized question.

Establish clear grounds for cause

Establishing clear grounds for cause may be done by referring either to the questionnaire responses or to prospective jurors’ responses in oral voir dire. For example:

“You strongly agreed on your questionnaire that you didn’t trust product manufacturers. You also said that manufacturers do not care about product safety. Given your strong feelings on these issues, don’t you agree that my client starts out a little bit behind here?”

Use metaphors

Since prospective jurors will seldom say that they cannot be fair, the most effective approach an attorney can use is to provide a socially acceptable way to talk about bias. Generally, after the grounds for bias have been established, the strategy is to use some type of metaphor to probe further. Examples include:

• “Given what you said before (or, based on your questionnaire), would the defendant start with a bit of an edge?”
• “Would the plaintiff have a little steeper hill to climb to prove its case?”
• “Would the defendant be starting a little bit behind the plaintiff?”
• “If this trial was a race, would we be starting one step behind?”
• “If you were in my shoes, representing my client, would you want a person with your views sitting as a juror?”
• “Do you tend to side with the underdog? Do you see the plaintiff as the underdog in this case?”

After they have agreed with the metaphor, you should then raise the level of commitment and suggest that the juror might have a more difficult time being fair.

Be persistent

Because jurors are reluctant to admit to themselves and others that they cannot be fair, they often resist admitting that they are biased even when their own answers clearly indicate that they are. You must therefore be politely, patiently persistent and not take a juror’s “I can be fair” as your final answer. I recently saw an excellent example of how persistence can pay off at a trial in Dallas. The defense attorney, a seasoned trial attorney with strong voir dire skills, was questioning a somewhat soft, feminine woman in her mid-50s. This woman had a father-in-law involved in a lawsuit against some of the same defendants as in our case. Yet she had said that she could be fair to the plaintiff attorney.

Some attorneys would be afraid of pushing too hard, afraid of seeming to bully the woman. This attorney pushed ahead, though, and the exchange went something like this:

“I see on your questionnaire that your father-in-law is involved in a lawsuit against some of the same defendants as are involved here, is that right?”

“Yes, but that doesn’t have anything to do with this case.”

“I understand that, but I’m sure you can understand that on behalf of my clients, I have some concerns.”

“Yes, I can see that.”

“Are you telling me that even though your father-in-law is sick and suing these same people in court here, it has nothing to do with your feelings about this lawsuit at all?”

“I’m not really involved in that suit. I think I can be fair.”

“Now, isn’t it true that you would have some financial interest in the outcome of that trial, that you would benefit if your father-in-law won his suit?”

“Well, yes, that’s true.”

“If you were my clients, would you want a juror like yourself sitting on this jury in judgment of them?”

“No, I guess not.”

“So would you agree with me that you may not be the best juror to sit on this particular case?”

“Yes, I guess you’re right.”

“Would you agree that it might be very difficult for you to be fair?”

“Yes, I guess that’s true.”

That juror was gone—but only because of the attorney’s persistence and patience.

Dealing with damages issues in trial

Once you have completed jury selection, you can still do a number of things during trial to minimize the chances of a high damages award if you understand the dynamics of juror decision-making about damages.

Blocking sympathy

Obviously, in many cases, juror sympathy for the plaintiff is one of the biggest potential fuels for large damage awards. In cases where sympathy is a factor, you should begin dealing with this issue in voir dire. Lay the groundwork then for a consistent campaign to instruct jurors that the law says they must set sympathy aside in their decision-making.

In opening, you should always express your client’s sorrow for the plight or condition of the plaintiff and acknowledge that the plaintiff has suffered. Then, acknowledge that it is natural to have sympathy. Next, diminish the impact of that sympathy by explaining that while sympathy is natural, the job of a jury is to examine the facts and to make a reasoned award of damages based on the evidence and the law, not on emotion. In closing, remind jurors about the need to set aside sympathy. Make sure that the jury instructions contain good language about this as well and refer to that language.

If you consistently educate jurors about the need to set sympathy aside, our experience and research show that sympathetic reactions do not always lead to larger verdicts. Jurors remember and refer back to your education and (if you are lucky) the Court’s education on the sympathy issue. In some recent post trial interviews, for example, jurors have told us, “We all felt for the plaintiff — she lost her husband. Sympathy came up in deliberations, but we discussed how that was not the issue” and “The defense attorney mentioned about ruling out sympathy, and the judge kept reminding us of our duty.”

Understanding the “severity shift”

An obvious question arises: If most jurors believe that there are too many lawsuits and damage awards are too high—as our data and that of others shows—why are there so many large jury verdicts? _[3]

Recently, research to better understand how jurors arrive at damages decisions was conducted on 509 mock juries, involving over 3000 subjects. The researchers concluded that a phenomenon they called the “severity shift” was at work. They found that when juries deliberate on damages, the damage awards typically increased as a result of deliberations. In other words, jurors’ pre-deliberation, individual damage awards were less than group jury awards they made later.

Why are jury awards more than individual awards? There is a rhetorical advantage in jury deliberations for those who argue for more money rather than less money. Surveys of the mock jurors show that most people feel it is a hurdle to argue for less money than for more.

Give jurors strong defense damage anchors

Because of the severity shift, it is essential for the defense to give reasonable defense damages anchors to jurors. It is of course often tough to argue both for zero liability and to argue damages, but research is quite clear that without a “low” anchor to balance the plaintiff demand, jurors will use the plaintiff demand as the focal point of their discussion and compromise and ultimately award a higher damage award than if given an alternate, lower defense number. That defense number must be reasonable, however, and based in some reality.

There is some dispute about whether giving a number undercuts an effort to get a defense verdict on liability. Research exists that supports both positions. There is an obvious contradiction between arguing no liability and arguing for a low damages award. This contradiction, particularly if it is not well handled in argument, can leave some jurors believing that by arguing damages, the defense has essentially admitted liability. However, there is also a substantial body of psychological research on the importance of “anchors” when people are involved in an ambiguous situation where there are no external guidelines or benchmarks. My feeling is that there are effective ways to handle the contradictions. Failing offering a low number anchor in a situation where there is a good chance you will lose on liability seems too risky.

Since plaintiff numbers are often not based in reality, the defense can help defense-oriented and low-damages jurors considerably by giving a number or numbers that are clearly backed up by discussing the value of the money. How much would this money really buy of whatever it is the plaintiff needs? Tie the amount to real-world expenditures and possibilities to help take it out of the realm of play and into the common sense worlds of bills and payments that jurors know. For example, in a recent wrongful death case in which a mother died in a terrible accident, leaving behind minor children, we recommended the defense argue for an award of $1 million each for the minor children, explaining that an excellent college education would cost $50,000 a year, or $200,000, leaving the still large sum of $800,000 for a child to invest, start a business, and buy a house. Explain how compound interest works and show jurors the amount of interest that would grow in a conservatively invested $100,000 or $1,000,000. Talk about how much it would take to create a financial security plan—shift the language away from “damage awards” to discussions of how to meet the human needs of the plaintiff(s).

How to minimize punitive awards

Of course, that is impossible to do with punitive damage awards since those awards are not designed to compensate. Recent research suggests that the best way to minimize punitive awards is to be an effective teacher of the law and get jurors to focus on the jury instructions. In a 1998 experiment with 121 juries, all involving real members of the jury pool (most experimental studies are done using students as subjects), Reid Hastie and his colleagues discovered that the key differentiator between juries that gave large punitive awards and those that did not is that jurors who have high awards did not talk at all about the law in deliberations. They also tended to blame the defendant for bad outcomes.

Juries that are less likely to find punitive damages are those that:

• Question the plaintiff’s motives.
• Suggest that judge’s instructions be followed.
• Discuss the legally relevant issues.

The most common juror error—which should not surprise you—is trouble understanding the law. Jurors usually get the facts straight but figuring out the law in deliberations is a tough task. Many juries do not even open up a discussion of the law because that is the area jurors are least comfortable discussing. It is the area they know the least about, and they usually cannot draw on their common sense experiences to help elucidate its principles.

Making the law an important part of your case

Your best defense against a high damages award, then, is to make the law a significant part of your case.

Ask the Court to pre-instruct

One of the most effective ways of making the law a part of the case is to ask the Court to pre-instruct the jury. Jurors who are pre-instructed on the law understand the evidence better as it comes in, feel more comfortable in their role as juror, and feel better about their jury experience. Pre-instruction gives them a legal “road map” for the trial just as opening statements give them a road map for understanding the evidence as it will come in.

Explain the verdict form

Jurors often are confused about just what their task is once they enter the deliberation room. Even with clear instructions, a group can quickly find ways to be confused. One of the best ways to keep jurors on track is to present the verdict form in closing and step jurors through it, question by question. Use the real form they will see, if possible, by putting it on an Elmo. Go slowly and carefully read and explain each question from your point of view.

Ask for the jury instructions to be allowed in the jury room

Ask the Judge at the beginning of trial if he or she will allow a copy of the jury instructions to be given to the jurors so they can refer to it during deliberations. Don’t ask the jurors to rely on their memories about the law—we don’t ask lawyers or judges to do that. Why should we ask jurors, who are least familiar with the law, to do so?

Conclusion

Selecting a good jury is important and with the right preparation, a defense attorney can increase the chances of seating a low damages jury. Jury selection is only part of the picture, however. With a clear trial strategy, and consistent defense themes and low damages messages, a good defense attorney can do a great deal to minimize the chances that his or her client will end up on the pages of the local paper, one more unlucky loser of the high damages lawsuit lottery.