Expect the Unexpected
Experienced attorneys, as soon as they begin hearing about a new case, begin analyzing it and planning that opening statement, “This is a case about…” Being able to provide jurors with a concise explanation of the case is vitally important, but what is that explanation based on? Typically, it is based on the attorney’s experience and schema of what will be important in this type of case. While that is a reasonable place to start, we would suggest exploring how potential jurors view the issues in the case before going too far down that road.
Time and again, we have seen jurors take the facts of a case, a case where both sides expected them to argue over the merits of X, and instead go with a ϕ—a letter from a completely different alphabet. For example:
-In a case involving the efficacy of sunscreen, or whether a drug makes users more susceptible to skin cancer, you’d expect an argument over the efficacy of sunscreen. But would you expect the belief that skin cancer is actually caused by sunscreen?
-In a case involving drugs for diabetes, you might expect jurors to focus on the risks and benefits of those drugs. But would you expect some of them to argue that diabetes isn’t actually a disease, but a lifestyle condition?
-In a case involving a drug increasing the probability of a type of cancer, you’d expect to argue probabilities. But would you expect someone to argue that none of this matters because drug companies actually have a cure for cancer (and for AIDS), but won’t release it because they make more money treating rather than curing. The proof? Magic Johnson is still alive.
Many attorneys find watching focus groups and mock jury deliberations extremely frustrating for this very reason. After presenting a clear, logical, and linear case, they find it disheartening to hear jurors being swayed by previously held beliefs or tangential facts. This frustration arises most frequently from the assumption that those factors are beyond their control and influence. But is that really the case? We would assert that you can prepare for such unexpected and often illogical arguments.
As strange as some of these “left field” arguments may seem, they are commonly held beliefs among a certain subset of individuals—and those individuals tend to discuss their opinions freely. For this reason, both the left field arguments, and the type of jurors who will respond to them, can be identified with proper research. Doing juror research early can save you time and money by highlighting such attitudes, allowing you evaluate how they benefit/harm your case, and helping you prepare for the unexpected ways that jurors may react to the case facts. It also reduces some of the uncertainty and unpredictability associated with jurors’ attempts to make sense of complex cases.
So in addition to evaluating your case based on your experience, we would advise you to always prepare for the arguments from left field. Because when you presume to know how jurors are going to think, they tend to seize the opportunity to prove you wrong.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.