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Do NOT take that silence as agreement.

There are a few phrases that we hear frequently in jury selections—regardless of venue and across attorneys—but one phrase that we hear more than most is, “I will take your silence as agreement.” We say: Don’t. In most cases, silent jurors aren’t expressing agreement—or anything else. Their silence is simply silence and provides the attorney with no reliable information. Here, we examine how jurors view such “agreements” and offer a more dependable approach for gaining commitments from jurors.

We hear this phrase most often when an attorney is asking questions to the entire panel and the panel is not particularly talkative. The attorney asks a broad question: “Does everyone agree [to base your verdict on the evidence and not sympathy, e.g.]?” No one on the panel responds and there’s an uncomfortable silence. The attorney then says, “I will take your silence as agreement,” and continues on. While we imagine that this is done for a variety of reasons—as a transition statement, as a method of dealing with an awkward situation, or maybe due to a genuine belief that jurors are agreeing by not responding—we have learned, from research and bitter experience, that those jurors do not believe they have entered into any agreements under those circumstances and definitely do not feel bound by that “agreement.” In fact, it often causes internal pushback from jurors (“You may take it however you want, but I did not agree to that.”).

What can you do to avoid that trap? Given that you want a real connection with and genuine agreement from jurors, we recommend that you revise your voir dire strategy and ask focused questions of individual jurors. Let’s take the example of “zero damages.” The question, “Can everyone award zero damages?” is often followed by complete silence. Rather than starting with that general question and assuming that you have garnered an implicit agreement on the issue, we recommend trying this approach instead:

-First, elicit an explicit agreement from several individual jurors, with a more detailed question: “Ms. Jones, if the evidence warranted zero damages, is that something you believe you could award? Even though she’s a nice lady, could you send the plaintiff home with nothing?”, followed by, “What about you, Mr. Pearson, could you award her no money?”.

-Once you have an actual agreement from some jurors, then pose a more general, but also focused question to the remaining jurors: “Is there anyone who feels uncomfortable with that? Does the thought of that make anyone think, ‘I’m not sure I could do that?’” These responses, even if they are silent responses, are responses that jurors do perceive as an agreement.

Jurors are silent for many reasons—awkwardness, unfamiliarity with the court system, shyness—so any assumptions about what that silence means can alienate jurors, give you false confidence, and prevent you from digging deeper and learning valuable information about what jurors are actually thinking. Designing questions that prevent silence will always serve you better than accepting silence as a tacit agreement.

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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.

 

Getting Jurors to Reveal Taboo Truths

A recent NY Times article examined the fact that Donald Trump polls better in online polls than in polls conducted with a live interviewer, most likely because embarrassment is preventing people from openly sharing their real opinions and preferences. Embarrassment about opinions that are generally perceived as socially undesirable, even taboo, is not confined to politics. We all know from experience that trials often involve some facets that jurors are reluctant to discuss openly and honestly in open court (or even in a written questionnaire). So what do you do when your case includes topics—racism, gender biases—that you know will influence how jurors perceive the case, but that jurors will not cop to in jury selection? Are you stuck with simply guessing which jurors you believe and which you don’t?

Thankfully, no. When confronted with identifying socially undesirable attitudes, it is tempting to default to familiar strategies: asking the question repeatedly in slightly different formats, imploring jurors to be honest in spite of their embarrassment, or instructing jurors that those attitudes are improper considerations when deciding the case. Unfortunately, jurors don’t decide which of their attitudes influence their decisions, nor do they have the ability to ignore specific attitudes when making those decisions.

However, most taboo attitudes co-exist with more socially acceptable attitudes, so identifying and questioning jurors about those attitudes allows them to reveal their biases without stigma or embarrassment. In cases where useful information is unlikely to be discovered using a direct path (“Do you have negative feelings about people of other races?”), there are indirect paths that can lead you to the same endpoint (“Have you ever experience reverse discrimination?” or “Do you believe that minorities are given special treatment that adversely affects you?”).

The key to a successful jury selection in such cases is identifying the indirect paths that are most closely related to the target belief system, and are therefore, predictive of that belief system. This requires an in-depth analysis of the interplay between juror beliefs and attitudes, which can be done relatively quickly and inexpensively using online surveys. Online surveys also provide the anonymity required to coax participants into revealing taboo beliefs—because in jury research, just as in jury selection, people reveal the most when they think they are revealing the least. And that is something we would encourage you to capitalize on.

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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.

 

Know your jury.

In social science research, there’s something called the ecological fallacy—using data gathered at one level to infer attitudes or behavior at another level. Like using information about an aggregate of people to predict what one person will do. We often see this mistake made in discussions of jury selection and case presentation, usually involving assumptions about demographic categories (“Low-income people think this way”), or age cohorts (“Millennials are entitled”), and political parties (“Republicans lean defense, Democrats lean plaintiff”). But much the same way that you don’t fit all the norms and stereotypes for groups you belong to, neither do jurors.

This doesn’t mean that all information about groups as a whole is useless. But it does mean that in a trial preparation/jury selection context, it usefulness is very limited. For example, as Millennials are becoming a larger percentage of jurors, we are often asked how they should be approached. Our advice is to be mindful of their life experiences—don’t use pop culture references that are too dated for them to understand, consider their preference for shorter, pithier presentations, and don’t make self-deprecatory remarks about how hard technology is to master. Having said that, many Boomers and Gen-X’ers have mastered new technology (computers, iPhones, social media, Hulu, etc.) and what juror wouldn’t prefer a more succinct presentation?

When we become aware of how group characteristics are used in other arenas – advertising, political consulting—it can be quite tempting to try to apply those findings to your trial practice. And as we mentioned above, there are some limited ways where that information can be useful. However, what you have available that those mediums don’t is the unique ability to know exactly who you are presenting to. Rather than selling something to the masses or trying to persuade a huge crowd, you are presenting a clear, comprehensible, and persuasive case about a complex event to a small group of people. And you are afforded the opportunity to know important information about each member of that group.

So if you’re going to rely on an advertising adage, please choose this one: Know your audience. Advertisers and political consultants use group characteristics when they craft appeals for selling something—the Millennials feel the Bern, Subaru owners Feel the Love—because they have to. If, instead of trying to reach millions of people at once, they were tasked with selling to 12 known individuals, they would shift strategies dramatically. Instead of relying on assumptions about a group, they would gather information about each individual and craft their presentations accordingly. And that is exactly what we would recommend to you. Don’t make assumptions about individual jurors based on group membership. Ask them about the case. And then listen to what they say.

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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.

 

Am I pushing your buttons?

In most product liability trials, the plaintiff’s goal is to keep the focus squarely on the behavior of the defendant. They want to characterize that behavior as “bad” and try to elicit strong emotions, typically fear and anger, from jurors. Unfortunately, our clients have often given them something to work with, even if it’s only tangentially related to the case. A seasoned trial attorney can usually identify what will be an issue ahead of time – those unfortunately worded marketing documents, that insensitive email – and craft a response. Still, despite your best efforts, you may find yourself in court answering for bad conduct and trying to calm the rage that plaintiff’s are trying to ignite.

To complicate the matter further, sometimes there are hot buttons that you don’t know exist until you push them. In a comment analysis we conducted on a vaccine article, the second most discussed issue – after vaccines – was raw milk. In the original article, the author made a passing remark casting doubt on the safety of raw milk and that comment unexpectedly hit a nerve with many readers and altered the course of the discussions. As anyone who has watched mock jury deliberations can attest, this happens quite frequently with jurors, and can be unnerving.

Identifying the hot button issues in your case prior to trial is imperative. But it is not enough. In order to develop an effective trial strategy, you must understand why it is a button. What emotions is it evoking? Why are jurors so sensitive to this issue? This deeper understanding is essential for two reasons:

1) So you can disarm the button. If you do not understand why the information is triggering such a strong reaction, you cannot address it in a way that does not offend jurors or appear to be minimizing the behavior. The response to the bad behavior has to be sensitive to jurors’ concerns and address the specific cause of those concerns. For example, if a young, female employee testifies that she flagged a problem, but the company did not take action, it is easy to focus entirely on the missed warning and craft a response that is solely directed at disarming that button. What that response is likely to miss, however, is the underlying button that aggravates many jurors – Was she ignored because she is young? Because she is a woman?

2) So you can choose the best jury. With any hot button issue, jurors will fall into one of three categories: not emotionally triggered by the issue; emotionally triggered, but able to be receptive to the right argument; and too triggered to be persuaded by any argument. Only a thorough understanding of the buttons imbedded in your case will allow you to tell the difference.

So even in cases with plenty of interesting and titillating facts to distract jurors from where you would like them to focus, there is still reason to hope. As long as you properly identify and address what is stoking juror reactions, there are jurors who can quiet their emotions and respond reasonably to your case.

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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.

Jury Selection: Should I listen to my gut?

In a perfect world, reason, analysis, and thoughtful discussion guide jury selection. Before jury selection begins, you have an idea of the type of juror you desire and the type who would cause you concern. Any jury research has been done and analyzed and, if allowed, juror questionnaires have been pored over and scored. A clear plan for voir dire is in place. But sometimes, in the middle of all this rationality, the trial attorney has a visceral reaction to a juror. “My gut says to trust this one,” she says. Or, “I can’t say why, but that juror gives me a bad vibe,” he says. How much of a vote does the gut get?

Our answer is: If you gut is telling you to keep a juror who indicates they are against you, then do not trust your gut. Outside of the actual jury selection, it is difficult to imagine wanting to keep a juror who expresses biases against you, but this situation arises quite frequently. Even experienced trial attorneys tend to be seduced by the following reasoning:

*I can reach him because we’re similar. Although the similarities may be real and clear to you, jurors typically see only a limited facet of your personality. As a result, those similarities are rarely obvious to them.

*I can reach her because she’s intelligent and reasonable. While intelligence and reasonableness are definitely positive attributes in a juror, they do not ensure that a juror will share or adopt your perspective. Intelligent, reasonable jurors often see the case very differently than you do – and they are likely to have a lot of sway over other jurors.

*I can reach him because he likes me. Being liked by jurors is important, but a juror’s positive feelings toward you oftentimes do not transfer to your case or client. In fact, in post-trial interviews, jurors will comment, “I really liked Mr. Trial Attorney, it’s a shame his client was liable and had to pay lots of money.”

Our rule of thumb is this: Always believe a juror who tells you they are against you. That type of honesty may make them endearing. And self-aware. And likeable. But they are still against you. And the attitudes that cause them to lean against you took a lifetime to develop; that belief system is deeply entrenched. Believing that you can alter that over the course of a few days or weeks is unrealistic and unwise.

So, is the gut always wrong? No. Guts are like Socrates’ daimonion, a sort of guiding spirit, that never told Socrates what to do, only what not to do. Most people are sensitive to cues of not being liked and we can tell if someone isn’t receptive to us. As a result, experienced trial attorneys can sense when there’s some problem in connecting with a juror. Although they may be unable to articulate exactly what the issue is – it is often described as a “bad vibe” or a feeling that they can’t reach that juror – their gut says “No.” Those cues provide valuable warnings that should be heeded. So in your next jury selection, please remember: When you’re gut says “No,” listen to it. When it says “Yes,” say “No.”

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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.

 

Using mind maps to guide early litigation

If you have ever worked with us, then you know we have two mantras: 1) Look at juror attitudes and experiences, not demographics, and 2) Start jury research sooner rather than later. So it should come as no surprise that we believe strongly in learning about jurors’ relevant attitudes and experiences as early as possible in any litigation. Although many traditional forms of jury research, such as in-depth focus groups and mock trials, aren’t as helpful or cost effective in the early stages of discovery, there are ways to gain valuable insight during those early stages. One method is to conduct online research into the litigation topic and related issues and construct mind maps, visual representations of concepts reflected in layperson comments.

To illustrate the benefits of this method, we used it to learn about lay attitudes towards a new prescription drug that, to our knowledge, has not yet been involved in litigation: flibanserin. Flibanserin is the so-called “female Viagra,” a libido-enhancement drug for women approved by the FDA just this year. We analyzed 475 on-line comments to stories about this specific drug and its approval process, and constructed mind maps. Our mind maps identified these concepts, among others: how flibanserin compares to other drugs/interventions, whether a decreased libido is a “real disease” requiring medical treatment, and concerns about female sexuality and autonomy. Here’s how these findings could be used in trial preparation:

Most laypersons will not be familiar with the drug, and as a result, will understand this drug in the light of drugs and interventions they do know. So flibenserin was compared to Viagra, HRT, cosmetic surgery, implants, and anti-depressants. This has implications for discovery (what comparisons, if any, do witnesses and documents offer?), theme development (X comparison is helpful, include it; & X comparison is misleading, address it), jury research (explore such comparisons further), and jury selection (identifying juror experience with “comparison” drugs and interventions).

Most jurors will have their own experiences with libido and will likely have strong opinions about whether lower libido is a genuine problem, what the cause is, and how/if it should be treated. Gaining a full understanding of different perspectives on lower libido and whether it should even be treated would help ensure that your trial themes resonate with the greatest number of jurors.

Commenters also expressed concerns related to female sexuality and agency: Could this drug make women lose control over their sexual urges, with negative practical and moral consequences? Who should be making these decisions about a woman’s body? Who even has standing to comment on this issue? These remarks demonstrate an underlying fear for women’s safety and autonomy – fears that are likely to be deeply rooted and capable of producing strong visceral reactions. The trial team should be acutely aware of and sensitive to such fears.

As the above example demonstrates, mind mapping can provide valuable and early insight into how jurors could view the products and major players in a litigation. It can alert you to any underlying hot button issues you should be sensitive to and/or prepared to address or debunk. Knowing this information early ensures that you are attuned to salient juror beliefs and attitudes when examining documents and that your witnesses and experts are prepared to explain or address juror concerns. It is also beneficial in guiding case strategy and theme development as well as providing direction for more case-specific research.

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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.

 

Doctor vs. Patient in Failure to Warn Cases: Who should jurors believe?

In litigation involving personal injury and prescription drugs, the plaintiff often claims that a doctor or other healthcare professional failed to warn him or her about the risks associated with the drug. Very often, the doctor in question claims that he/she did, in fact, warn the patient. Absent written documentation, it becomes the doctor’s word versus the patient’s. In such cases, juries may assume that the patient’s recall would be better given that the doctor rarely has an independent recollection of the visit and has had many conversations with many different patients.

But the patient is probably wrong. Decades of studies of patient-doctor interactions support this notion. The trend of those studies is the conclusion that most patients remember very few details of their doctor visits. One study even used tape recorders to document what the doctor said, and then questioned patients later, when nearly all of the patients “positively but wrongly denied that certain major items had been discussed.” So while patients were certain they remembered what had been discussed, empirical evidence proved them wrong.

The results of these studies made us wonder whether this research could help the defense in failure to warn cases. Would jurors be receptive to this information and adjust their opinions accordingly? Could jurors be easily educated about this phenomenon in a way that made them less likely to give the patient the benefit of the doubt in such scenarios?

We decided to test these questions using an online survey. The brief questionnaire we constructed focused on respondents’ attitudes toward drug safety and their experiences with doctors and prescription drugs. We then provided a brief explanation of the aforementioned study and its results. Finally, we gathered respondents’ reactions to the study and questioned who they would believe in a case where the doctor claims to have warned a patient about a particular risk or side effect of a medication and the patient claims he/she received no such warning.

Our findings demonstrated that a majority of respondents accepted the study’s findings as accurate. Additionally, after receiving information about that study, the vast majority sided with the doctor in a dispute about whether the doctor warned of a particular risk or side effect. Our findings also provided valuable information about the characteristics of jurors who resist such arguments.

We chose to examine a very limited issue, but these results highlight the ability to educate jurors about a fact that 1) arises extremely often in failure to warn cases and 2) is most often presented to jurors as simply a “credibility contest.” Although persuading jurors can be difficult, findings such as these demonstrate that in some cases, it may be easier than we might think.

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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.

 

Yes, you really should respond to that inane argument.

In any disagreement, it’s incredibly tempting to only respond to the arguments that you think are persuasive and simply dismiss those that you find absurd. Unfortunately, as can be easily seen in any political debate, that often leaves both sides talking past each other – and never actually addressing the other side’s concerns. Unless and until you actually address the opposing arguments directly – even those you think are ridiculous – you are simply “preaching to the choir.” And while it is important to provide ammunition to those who are on your side, ideally, you would like to persuade those who are on the fence or against you.

To highlight this issue, think about a political issue you feel strongly about. Now consider the opposing arguments on that issue. Do they actually address your concerns? Or do you feel they are missing the point entirely? Are you persuaded by arguments that don’t address your concerns?

This same dynamic surrounds practically every sensitive issue that people have a vested interest in. Consider vaccines, for example. Vaccine resisters believe that there are real and widespread risks of vaccines that outweigh the risks of childhood diseases. They fear that vaccines will cause permanent injuries and changes to their child. Vaccine advocates emphasize the seriousness of those childhood diseases and our social responsibility in protecting vulnerable populations who cannot be vaccinated. The advocates’ approach is typically to scoff at anti-vaxxers or to focus on educating them. However, their arguments are rarely persuasive to those who oppose vaccines, because they dismiss the fundamental force driving their position – fear of causing harm to their child – instead of addressing it.

In fact, studies designed to examine what arguments actually influence anti-vaxxers’ thoughts about vaccines have found that parents’ vivid and detailed descriptions of their child actually getting those diseases (measles, whooping cough, etc.) are most effective. This is likely because those personal accounts speak to the fear in vaccine resisters – and elevate their level of fear concerning childhood diseases to a point that balances out the scales a bit more.

Every time you go to trial, you are introducing new topics to jurors and asking them to become invested in the issues – which they do. But to create the greatest chance that they will become invested in your position, you can’t simply hope they think like you and will be persuaded by the same arguments you are persuaded by. You should consider that some jurors may have a different perspective – one that you would like to change. So next time you don’t want to bother addressing an opposing argument because “no one will ever believe that,” remind yourself that someone will. And he/she may be on your jury.

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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.

Using an analogy at trial is like…oh, just don’t do it.

When teachers want to explain a new concept to students, they often offer analogies: teaching fractions in terms of pieces of a pie or likening the brain to a computer for the body. Scientists rely on analogy to help themselves think: for example, Robert Boyle, the founder of modern chemistry, used analogy to conceptualize and explain “local motion,” the movement of invisible particles. Analogy, and its relatives the metaphor and the simile, is a powerful tool for explaining new and complex concepts and facts to a lay audience. It’s not surprising that lawyers turn to analogy in the courtroom to explain causation or complicated facts.

But using an analogy in the courtroom is like having a gun in your house: it can protect you, but a burglar could take it by stealth or force and use it against you. And that analogy highlights the problem with analogies. Analogies are never 100% fitted to the new situation, and that difference between analogy and situation, especially if the analogy makes use of a politically or emotionally charged example, can distract jurors and derail the discussion. The gun analogy likely caused most readers to react to that statement and thus, distracted them from our main point: be very cautious when using analogies.

You can see the distracting power of analogies in almost any conversation or discussion, including the example below. In our research on lay attitudes towards vaccinations, we analyzed reader responses to a blog post by Maria Konnikova, a writer for the New Yorker. Konnikova was writing about a study that explored the effectiveness of particular ways of communicating information about childhood vaccines to parents; the benefit of childhood vaccination was not up for discussion. In the course of her post, Konnikova made two analogies: one to the use and regulation of raw milk and another to Galileo as a pioneer in science. There were over 340 comments and of those, only a handful directly addressed the topic of the post, communicating with parents. Of the remaining comments,

1) 124 argued the pros and cons of childhood vaccines

2) 83 argued the pros and cons of raw milk

3) 46 commented on Galileo.

It’s tempting to want to explain complexity with an analogy, but “likeness is a most slippery tribe,” says the Stranger in Plato’s Sophist, and we agree. Whatever analogy you’re contemplating, we bet it can be turned inside out, and you can be sure the opposing attorneys will try their hardest to do so. And if they can’t, they can always fall back on dismissing it: “Opposing counsel likened this X to a Y, which is totally wrong and demeans X.” It’s a rare analogy that can hold up under that scrutiny.

And it’s a rare juror who is persuaded by an attorney-generated analogy (they can be persuaded by their own analogies, but that’s another post). So instead of spending all of your time trying to come up with the perfect analogy, spend that time focused on what you want the jurors to focus on: your case.

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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.

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