Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

Comments

[Stephen Gustitis]

Anne:
Another way to look at this? Lawyers simply fail to develop their case from the decision maker's point of view. I'd say rarely are jurors moved by legal analysis alone. However, they are moved by what moves them - their emotions. Emotions related to fairness, the right thing. Emotions related to fixing wrongs, helping the underdog, and stuff like that. Until lawyers learn to develop these emotions themselves and incorporate them into their cases, they will largely fail. My two cents.

[EdinTally]

This is an issue that I've been thinking about for a long time now. Facts and analysis are important, but SG seems to be on to something with the emotion argument. Too many facts seem to turn people off. It seems like you have to reach them through their gut in order to keep their attention.

Of course, it probably doesn't hurt to be "likable" :)

[maybell]

I recently participated as a juror in a civil trial. The vote was 13 to 1 in favor of the plaintiff. I was the 1 dissenting vote. All I can say is that I would not want to trust my life or fortune to 14 strangers literally off the street. The group dynamic was interesting. We would arrive each morning, exchange pleasantries and proceed to our reading or staring out the windows in silence. This was strange to me since I am more friendly than not. The group as a whole seemed fairly educated beyond high school. However, an elemental understanding about business dealings and finance structures was essential and later I found that lacking. The trial was long and somewhat boring in content but what I found interesting was when we finally got the case for deliberation the usually taciturn group exploded with views and opinions bouncing off the walls of both the case and the parties involved. Also, there was a slight air of anger and indignation at the outset but I could not put my finger on it. The group settled down around the table not knowing each other's views yet. The foreman relished his new leadership role, seated himself in the only leather chair at the head of the table. The deliberation was not pretty. The judge, in his wisdom and with approval from both counsel, crafted a questionnaire for us to answer that would lead us to key pieces of evidence to consider, try to logically argue and answer each question. This in turn would help to arrive at a sound verdict. However, there was tremendous bias toward the defense led by the foreman and four others at the beginning and surprisingly, they all sat together as if they gravitated toward one another when first seating themselves. A sort of straw vote was taken and many were unsure, including myself but 5 of the jurors dug in for the plaintiff. There was a point where we needed clarification from the judge and the foreman almost refused to ask since I think that he thought the question might sway jurors away from his opinion, however, clearer heads prevailed and we were able to ask. When we resumed deliberations, anyone with a dissenting view that might threaten the view of the foreman and his posse of four were not able to fully argue their points and were shut down (sometimes rudely) by the foreman—body language was key too in their disapproval. One time the foreman got up and paced around the room pontificating and gesturing as if to argue the case again according to his very biased view. He was insufferable and pathetic at the same time but he knew he had all the authority. I was not sure that the plaintiff met his burden of proof and implored the group to look more closely at the defense's evidence to answer allegations. Jurors agreed and one woman turned to me and said, "don't let him (the foreman) bully you". Ultimately, the decision came down to timing. It was Friday, the second day of deliberations and now 2:45. We were all exhausted from this long trial and most just wanted to get it over with. Enjoying his role and wanting to extend it, the foreman hoped and asked if we willing to come back on Monday saying it was a small imposition of our time (!!). It was this realization that motivated the jurors to reach a decision and they (except for 3 of us) caved in one by one to the plaintiff's side, I believe, to get it all over with and not to have to deal with this case another day or (gasp!) another week. The other two dissenting opinions took up the burden of trying to get people to look at the defense's evidence but now outnumbered, they gave up too. The damages were now being calculated. One very quiet woman came up with a perfect (and brilliant) calculation method that flowed flawlessly with the verdict questions, even I could have considered and signed off on. All but two of the jurors agreed and were ready to use it but one of the two jurors was the foreman and he nixed it wanting to award it all. I think at this point the jurors did not want to give it all up to the plaintiff for I believe they realized that he was somewhat irresponsible in not fulfilling his obligation under the law. Another juror kicked in and came up with another calculation--not as great since this did not logically coincide with the answers given to the questions on the verdict sheet but it was all we had at this point. Sensing growing hostility toward him, the foreman agreed and the decision was made. There was a final run through the questions and I dissented. I felt that the plaintiff did not meet his burden based on the judge's questions and the evidence and I felt the decision that was reached was rushed and hindered by some members of the jury and I could not in good conscience participate in the award. I think I made people uncomfortable and they in turn made me uncomfortable, especially the foreman and 3 of his posse with glaring looks and a rude comment from the foreman when I dissented. However, six of the jurors came up to me later and said that they were glad that I stuck to my opinion. (??) Why write this tome? --To give some insight to what can and does happen in the jury room and why there was such hostility toward the defense in this case. People can toss out all reason and route for the underdog and I have to say that the plaintiff's attorneys did a good job at portraying their client as the underdog and were very humble themselves dressing low-key and neat with impeccable courtroom manners—this was key with the women. The jury was mostly women. The defense was fashionably well-dressed and well groomed but came after the plaintiff like a bull dog making him nervous and this strategy might work with most men but two of the men bristled at this and it supported sympathy toward the plaintiff. The plaintiff's cross was respectful but firm while the defense's cross came out punching—I personally thought this was Ok—after all if someone is coming at me trying to take a sizable chunk of my fortune the plaintiff better be ready but this did not work here (possibly jury make-up) and played into the sympathy card. Most of the jurors admitted that they did not have a business background. I felt that this was not a jury of either side's peers but do not know what could be done other than revamping the whole civil court process. Perhaps mediation might work with lawyers and expertise-specific people to hear the complaint and try to resolve without a jury trial. If they cannot come to a resolution then take a gamble with the general public and hope for the best. Lawyers cannot rule out current events. I know this insight may be a stretch but I would not be surprised due to the make-up of the original 5—some things are sub-conscious and the result of stations in life--the anger sensed initially could possibly be aimed at the defendant for he was a rich and successful businessman—possibly subconsciously representing the image of corporate America and the power it has…and in today's climate the public's anger toward rising prices and obscene oil profits cannot be discounted. Pleeease if any judge reads this, pleeease instruct your foreperson on his/her responsibilities for I do not wish anyone to be subjected to what I experienced. Please take out any personal information in the exhibits that could be used as prejudicial. We were instructed by the judge not to consider some of the exhibits but human nature being what it is, the foreman found the named exhibit and blurted out the contents in an attempt to gain sympathy for the plaintiff. When all is said and done and in the final analysis, I was not pleased at how the decision was arrived at but I can say that there is some consolation that the plaintiff only got 2/3 of the amount that he sought. I was willing to award some, not 2/3's, but some compensation. I pray to God that I never see the inside of a courtroom again especially as a party to a civil or criminal action for I repeat I would not want to trust my life or fortune to 14 strangers. I think we can do better.