Twelve Angry Men?  Think Again

by Joseph A. Rice, Ph.D.

In a legal system starring a "jury of one's peers," it's vital to understand how a dozen citizens will perceive your case.

Imagine the scene: a claim for constructive discharge. The plaintiff demands $120,000, the school district offers $25,000 and the jury awards $450,000 in damages. What happened? Obviously both sides failed to recognize the emotional and potentially explosive issues of the case as perceived by the JURY. Unfortunately, this is not an unusual outcome. Every day juries across America are evaluating liability and damages in ways that make risk managers cringe.

The principal issue is that ultimately every lawsuit has the potential to wind up before a jury. Jurors are, in effect, the consumers of the "product", and their views of the issues in a case often differ dramatically from those of risk managers, attorneys and experts. As a result, it is important to evaluate all files anticipating that a jury will make the final decision regarding liability and damages.

Recent advances in social science research have played a significant role in the evaluation, strategy planning, and ultimate outcome of large numbers of lawsuits. It should be no surprise that the Menedez brothers, William Kennedy Smith, the Rodney King trials and other high profile cases have utilized social scientists to help in the evaluation of evidence, the preparation of case themes, and ultimately selection of a jury. It may be surprising to learn that countless cases, involving relatively minor damages, are also utilizing many of these research tools to reach effective resolutions. Cities, counties, school districts, and community hospitals are now enlisting the aid of social scientists to appropriately evaluate, settle or try disputes.

 Witness Preparation

Many cases come down to the actions of one or two key parties who were at the scene at the time of the accident or injury. The testimony of these individuals will make or break the case. Unfortunately, few people are hired for their poise during deposition and trial. Trial testimony is neither listed on the job description nor considered during the job applicant's interview. Yet in today's legal environment, there is an increasing probability that an employee may be required to participate in a deposition, and testify at trial. As a result, it is critical that key witnesses be adequately prepared before deposition.

Witness preparation involves the participation of the witness and trial counsel. A simulated direct and cross examination should be video-taped and reviewed with the witness. Research clearly demonstrates that we learn best by observing ourselves, and videotape is a harsh, but effective, means to judge one's performance. Following the review of the videotape, the witness and attorney should repeat the same content area and re-tape the direct and cross examination. This allows the witness to focus on the issue of presentation and improve the delivery of information to the audience, the jury.

Research demonstrates that spaced practice is better than massed practice. That is, it is more effective to divide witness preparation time over several sessions, as opposed to a marathon session shortly before deposition or trial. Trial consultants and communication specialists can be an effective adjunct to this process and usually charge on an hourly basis for this type of service.

Methods of Case Assessment

One of the principal tasks of the risk manager is to evaluate the potential exposure of a case and make recommendations regarding settlement or trial. Due to the volatile nature of juries, it is valuable to bring the perspective of the jury into the evaluation process. Many different types of research exercises have been developed which allow the risk manager to assess the relative strengths and weaknesses of the case and to make valid predictions about potential outcome.

Informal Discussion Groups

The are now many different formats available to risk managers depending upon the complexity of the case and the potential exposure. The easiest and least costly method available to a risk manager is to hold informal discussion groups with neighbors and friends who are not risk managers or attorneys. The risk manager should review the elements of the case and elicit "jurors" reactions' and thoughts. It is particularly important to assess common life experiences or analogies which these "jurors" offer that can be used in the real trial to summarize the case. In reality, most cases are foreign to jurors and they struggle to understand the issues based upon their own life experiences. In fact, research demonstrates that 50% of the time jurors spend in the deliberation room, they are talking about themselves. As a result, it is particularly powerful for the trial attorney to present the case using analogies and examples generated by such a discussion group.

Focus Groups

A more formal technique is to enlist the aid of a research firm which is familiar with the demographic characteristics of your jurisdiction. The firm can recruit, screen and select 12 or more community residents to participate in a discussion group about your case. These individuals assist you in identifying effective themes, preparing witnesses, developing effective demonstrative evidence and predicting potential outcome. These discussion groups, or focus groups, have had a dramatic impact on the course and scope of litigation. Experience demonstrates that focus group exercises can actually reduce the scope of discovery and allow the trial team to focus valuable energy and financial resources on only those issues and witnesses that jurors need in order to reach their decision.

Mock Trials

The most formal methodology available is referred to as a mock trial. As its name suggests, it involves that staging of a mini-trial, usually one day in length, to a panel of community residents who deliberate the case. The methodology allows you and your legal counsel to directly test your best case against the plaintiff's best case. The deliberation process is observed and videotaped, allowing the trial team to analyze the issues which were utilized to render a verdict. The results of mock trial exercises which follow certain research guidelines correlated remarkably with the outcome of the actual trial, allowing you to predict the potential exposure or outcome associated with the case. On many occasions public agencies have utilized the results of a mock trial exercise to justify a settlement which results in a saving of defense costs, as well as the award.

The Audience

In today's economic and political climate, many agencies are unable to settle significant claims, and the case must be decided by a jury. Recent surveys demonstrate that community residents typically hold strong beliefs about governmental agencies which may be detrimental to your position in the case. In these instances, your success is directly tied to the biases of the decision makers. It is not so much what you say, but who you say it to that counts. In this circumstance, jury selection may be the deciding factor in the outcome of the case. Survey research techniques have been demonstrated to be particularly powerful in assisting the trial team to identify pro-plaintiff and pro-defense jurors. The usual methodology involves a telephone survey of 300 to 500 community residents who listen to a summary of the case and render a verdict. The participants also provide a significant amount of demographic information about themselves, which allows researchers to correlate the demographic and attitudinal variables with the verdicts. A statistical profile of pro-plaintiff and pro-defense jurors can then be developed. These profiles establish the worst and best potential outcome of the case. Due to the large sampling associated with this process, it has the highest level of predictive validity and is an extremely powerful tool for use in settlement and at trial.

Summary