Deliberations

If Miss Cleo Couldn’t Predict a Jury Outcome, WHO CAN?

In an end to an illustrious career, Miss Cleo and her Psychic Readers Network came to a landmark settlement with the Federal Trade Commission where the company sacrificed $500 million dollars in fees and paid a $5 million fine for deceptive business practices.  This result brought three questions to my mind:

1. A $500 million settlement! How much money was Miss Cleo Making?  How much did she “psychically predict” a jury would award?
2. This is just one example in a sea of settlements based on predictions of trial outcomes, I must ask: How accurate are these predictions?
3. If I wore a turban and spoke in Jamaican accent, could I be a successful psychic litigation consultant? (Seriously. I cannot get over that $500,000,000 figure for a psychic hotline.)

A recent analysis out of Cornell Law School attempted to explore the meaning of “jury predictability” in the United States and if such a thing even exists.  They utilized a national comparison of jury verdicts via the 2005 National Center for State Courts Civil Justice Survey (an amazing study I have cited before) and the 2005 and 2006 U.S. Chamber of Commerce State Liability Ranking Studies.  Through a process I won’t go into here, Valerie Hans and Theodore Eisenberg established a creative method of analyzing the relationship between corporate and insurance attorneys’ assessments of juror predictability and the actual verdicts that were eventually rendered in various States.

Their results demonstrated that predictability ratings had little relation to jury compensatory damage awards, but were surprisingly in synch with punitive damage awards.  It suggests that the outcomes of cases with punitive damages (awarded in only 5% of judge or jury civil plaintiff verdicts nationally) are dominating defense attorney assessments of jury predictability.

In 2008, a paper published in the Journal of Empirical Legal Studies entitled "Let's Not Make a Deal" analyzed 9,064 decisions in contested litigation cases to examine the number and magnitude of errors made by attorneys and clients in failed settlement negotiations that ended in jury verdicts.  The results reconfirmed the findings of three prior empirical studies: both plaintiff’s counsel and defendant’s counsel frequently make dramatic miscalculations when predicting trial outcomes.  Interestingly, plaintiffs had a high rate of miscalculations (61.2%) with mid-level financial magnitudes, while defendants had a lower rate of miscalculations (24.3%) that resulted in very high financial magnitudes.  In other words, the plaintiffs guessed wrong regularly but only took a medium hit to the pocketbook, while defendants miscalculated less often but it cost them tremendous amounts of money. (I call it a tie.)

So, what does this mean? I would suggest that there could be several factors at play:

• Current methods of predicting potential case outcomes may be lacking due to an over-reliance on a small sample of similar jury trial outcomes.
• The stronger side may be sacrificing too much during mediation and settlement negotiation due to an unrealistic fear of loss or a lack of preparation towards fully establishing the power of the case.
• The idea of what a case is worth may be too heavily based on what similar cases have settled for, furthering a vicious cycle of faulty settlements.
• There is an over-dependence on Jamaican mystics and psychic hotlines.

Predicting jury outcomes is tremendously difficult task and every situation is different.  The best insurance against faulty guessing is to spend significant time learning one’s case and developing the strongest possible strategy prior to negotiation.  Just remember, that attorney who just had the embarrassing loss on a similar case down the road may have been depending on a very questionable strategy that began with 1-900…

Blogger: Matt McCusker

 

“Once Upon a Trial, in a Land Far, Far Away…”

 How many of you decided to read this blog post because the title suggested that I was about to tell a story?  What if I had use the alternative hook “Narratives and Storytelling in Case Strategy” as my opener?  Would you still have been as interested?  (I’m betting not.)

As this article by Jeremy Hsu outlines, we human beings are programmed to attach to stories.  For thousands of years we have utilized stories to teach, entertain, preserve history, and create social bonds.  Long before the written word, we spun tales around campfires and depended on the preservation of these words for future generations to avoid the mistakes of the past.  In essence, stories are our memory.

Given this propensity, why do some attorneys try to keep jurors narrowly focused on very particular facts or arguments when presenting a case?  Sure, there may be some lip service to a narrative or a key theme, but how often do trial attorneys start with “the story” and carry it as a blueprint for jurors through the entire trial? How often is the witness testimony organized by the principles of “the story” and the demonstratives created with “the story” in mind?  How often is “the story” at the base of every major strategic maneuver in trial presentation?

I would argue that the narrative must come first and then the facts can be organized (and often pruned) to support the tale told.  Trials are not about who has the heaviest bucket of facts, but instead about who is able to get jurors to attach to their plotline.  The victor is the side that is able to ride this juror attachment into a favorable deliberation where the group remembers and repeats the facts of “the story” they liked most.

A recent study out of Princeton University published in Scientific American demonstrates this exact point.  Through the utilization of active brain scans, researchers demonstrated that a good story can actually synchronize people’s brains through a form of neural coupling.  (Think Vulcan mind-meld, but without the physical contact.)  However, if the listener does not understand the story, then the bond is broken and the listener disengages.

A post on the blog Neuromarketing makes the same point through a discussion of advertising and The Narrative in the Neurons (by Wray Herbert).  In this post, it is explained that fMRI imaging studies demonstrate that successful storytelling actually activates areas of the brain that increase the experiential effects.  People actually “understand a story by simulating the events in the story world and updating their simulation when features of that world change.” (Click Here for another overview.)  While this research is focused on the written word, it further clarifies the power of a well-crafted narrative.

The law can be a foreign language to many jurors.  Making things more difficult is the high importance placed on jurors’ correct interpretation of technical words.  (As many recall from grammar school) when individuals are unsure of the meaning of a word, they search for context clues to enlighten them.  Without this contextual guidance, the words will often be discarded and forgotten.  I would argue that when presenting a case at trial, the best context an attorney can provide is a well-honed story that causes jurors to want to hear more.  Then, before you know it, they are hooked.

THE END.

Blogger: Matt McCusker

FACTS? We (the jury) Don't Need No Stinking Facts. (Or, do we?)

 I would like to begin this blog by directing you to the definition of irony.  Well, it’s not really the definition of the word, but instead a recent Boston Globe article (“How facts backfire”) that had the blogosphere aflutter.  I’m not going to lie, I was excited about this article too.  In fact, I quickly began formulating a brilliant blog post about jurors’ propensity to ignore the facts in favor of instincts and emotions.  Until, of course, I checked the facts.

Sadly, I actually tracked down the cryptic 2005 and 2006 University of Michigan studies that served as the basis for the article and was disappointed to find questionable methods and obvious bias within the research design. However, I would not be curtailed by the facts of a bad study.   I had already made my decision to write a blog on this subject, so I would find the facts that supported my belief (with the help of Science Daily).

Then, I found a piece by the researchers at Emory University that saved my day.  They produced an fMRI study (active brain scans) that scientifically demonstrated politically partisan voters (i.e. Republicans and Democrats) had no trouble using their reason to detect factual contradictions in the opposing party’s presidential candidate.  (Duh.)  However, their neural processing changed when they had to deal with inconsistencies from their own nominees.  In this situation, the partisan subjects' brains' emotional centers (not reasoning centers) went off like pinball machines when encountering disconcerting statements by their own favorite son. 

Most interestingly, was the following statement by Dr. Drew Western (lead researcher) “We did not see any increased activation of the parts of the brain normally engaged during reasoning… Essentially, it appears as if partisans twirl the cognitive kaleidoscope until they get the conclusions they want, and then they get massively reinforced for it, with the elimination of negative emotional states and activation of positive ones.”  In other words, when we don’t like the facts we switch to using a part of the brain that doesn’t need them, and then reward ourselves when we find a way to get around them.

Sure, this is a study about emotionally charged elections, but that doesn’t change the fact that the results would likely apply to jurors on a two-month long IP trial, right?  For the sake of my blog, I continued searching for more evidence that jurors will search for ways around the facts.

Coincidentally, I found another piece of evidence from my friends at Emory University (also using fMRI technology.)  Dr. Gregory Burns demonstrated that expert advice may in fact shut down the decision-making processes in the brain.  Even better, this is more likely to happen when the brain needs to assess some level of risk.  For this research, subjects’ brains were scanned when interpreting expert financial advice for making financial decisions.  Dr. Burns noted, “This study indicates that the brain relinquishes responsibility when a trusted authority provides expertise…The problem with this tendency is that it can work to a person's detriment if the trusted source turns out to be incompetent or corrupt.”  According to this research, when we have a risky decision with expert advice available, we decide that someone else can better consider the facts and we will just decide if we trust the expert or not.

While this was closer to my goal of demonstrating that jurors will often ignore facts, it was still not perfect.  My Hail Mary came when I saw an article in the Journal of Advertising Research entitled "TV Ads May Be More Effective If We Pay Less Attention".  This was it.  The study I had been searching for to prove my point.  Then, sadly, I discovered I might be undone by the facts.

In this research, subjects’ attention was measured for different TV ads aired during an episode of Frasier.  “Results showed that viewers paid less attention to likeable, creative adverts, and more attention to factual information-giving adverts, even when they didn't like them.”  What?  Factual ads work better?  Factual ads that people don’t like work better?  Say it ain’t so!

But then Dr Robert Heath said: "There has been a lot of research which shows that creative TV ads are more effective than those which simply deliver information, and it has always been assumed that it is because viewers pay more attention to them.  But in relaxed situations like TV watching, attention tends to be used mainly as a defense mechanism. If an ad bombards us with new information, our natural response is to pay attention so we can counter-argue what it is telling us. On the other hand, if we feel we like and enjoy an ad, we tend to be more trustful of it and therefore we don't feel we need to pay too much attention to it.”

And there it was.  I could exhale.  I had to search for it, but I was able to find the evidence to support my personal beliefs.  Even brainiac Frasier fans are more susceptible to ads targeted towards one’s emotions, over ads that are aimed at one’s intellect.  Take this to heart when planning your next opening statement, direct examination or closing argument.

 

Blogger: Matt McCusker

 

OPENING STATEMENT? We've got an app for that.

 Last year, comedian Louis CK delivered a hilarious rant on the Conan O’Brien Show about our modern-day technological expectations (click here to laugh).  CK makes his point about how accustomed we’ve become to the luxuries of 21^st century life by recounting an interaction with a fellow airplane passenger:

“I was on an airplane and there was internet, high speed internet on the airplane…it’s amazing… then it breaks down and they apologize the internet is not working and the guy next to me goes ‘this is bullsh**.’…Like the world owes him [YouTube clips] he knew existed only 10 seconds ago… Oh really?  What happened next?  Did you fly through the air incredibly like a bird? Did you partake in the miracle of human flight?  Wow, you’re flying!  It’s amazing!  Everybody on every plane should just constantly be going, ‘OH MY GOD!’ ‘WOW!’ …You’re sitting in a chair in the sky!”

Louis CK’s rant went viral through the internet because it rang so true.  Technological advancements have completely altered our daily expectations.  Think of the first cell phones, the first internet connections, the first automobiles.  How would we rate them today?  Progress has caused us to judge harshly those who fail to rise to the lofty goals we set.  The courtroom is not immune to this phenomenon.

Today’s information-age jurors expect well-crafted presentations that include advanced auditory and visual components which are interwoven with the case story.  Moreover, a famous 1963 Weiss and McGrath study demonstrated that there is good reason for this juror preference.  They found that information is retained at a remarkably higher rate when it is presented orally and visually (65% retention), rather than orally alone (10% retention) or visually alone (20% retention).¹  While many attorneys think that a good opening statement or closing argument does not need the aid of visual dynamics, both research and juror comments beg to differ.

However, there is also the danger of going too far.  Presentations should not be so shocking or overwhelming that they serve to drown out supporting evidence that may be key to the foundation of a case. A recent study published in the Journal of Current Issues and Research in Advertising found that commercials shown between “intense war news” segments had much lower retention rates in audiences.  One could see how it would be counterproductive to make key points in a closing argument directly before or after graphic photos were shown.

Interestingly, a similar point was made when researchers tested the efficacy of PowerPoint text animations.  A study out of the University of North Carolina at Wilmington found that college students retained less information when presented with animated PowerPoint slides, than when the same topics were presented through static (non-animated) PowerPoint slides.

Still, it should be remembered that a good PowerPoint presentation, demonstrative computer animation or video clip will only go so far.  This audio-visual array must also be set in a framework that allows jurors to focus on learning, rather than remembering.  Researchers from the University of Amsterdam and Duke University have demonstrated that learning and remembering compete for valuable resources in the brain.  As a result of this battle for brain power, jurors who are constantly trying to recall case elements (Who is who? Why does this matter? When did this happen?) are distracted.  If this happens, all of the money spent on fancy instructional animations could be wasted.  An effective story or narrative framework is essential to making multi-modal presentations stick in jurors’ minds.

Blogger: Matt McCusker

*Image courtesy of the Wake County (N.C.) Bar Awards and Merritt Videoworks.  Click Here to see all of the great work the Wake County Bar is doing for their community and see if you can help.

¹ (H. Weiss and J.B. McGrath, "Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel" (1963).)

What THE CSI INFECTION Teaches Us About ASS-U-ME(ing) Juror Biases

 We’ve all heard about the CSI Effect, but what about the CSI Infection?  A recent paper out of Loyola University explores how the widespread fear of a very debatable CSI Effect in America’s courtrooms has set off a series of chain reactions that Ms. Lawson has dubbed a CSI Infection.  If you wander around your office ready to make cheesy puns before removing your sunglasses or you have The Who’s “Won’t Get Fooled Again” set as your ringtone; then you may not want to click this link.  It is a review of empirical studies on the CSI Effect that generally suggest it does not exist (or at least it cannot be demonstrated).  However, if you need to cling to your guns and DNA testing, only read the anecdotal reports/media stories in the review and keep your rose-colored David Caruso Ray Bans on.

(Blogger’s Note: I have facilitated a focus group on a project exploring the “CSI Effect Phenomenon” and remain thoroughly unconvinced of its existence.)

As Felix Unger says, when you ASSUME, you make an ASS out of U and ME.  Oftentimes, attorneys will let their assumptions about a large group of people (i.e. the jury pool) dominate their expectations of an individual’s behavior (i.e. the juror).  This is faulty logic, as it tries to make comparisons between apples and rhinoceroses. (I believe oranges are too close to apples and actually would make a better comparison). 

The CSI Infection is rooted in a mass assumption (without much support) by many in the legal community that most jurors are too dumb and/or emotional to truly realize that a crime drama is not real life.  It has left many attorneys believing that TV has indeed rotted juors brains and made them too “soft-in-the-head” to effectively determine levels of proof or hear a case fairly.  Honestly, is this likely?

Or, is the following scenario more likely?

1.       Prosecutors choose which cases to take on.  So, the attorneys are already weeding out many cases that have the weakest evidence (physical or otherwise).

2.      The accused know if they did the crime and get to see the evidence against them.  So, when the evidence is strong, criminals will often take a plea arrangement to avoid a harsh judge sentencing.

3.      This leaves a collection of trials under the following circumstances:

a.      The person didn’t do the crime (suggesting there should not be much strong physical evidence);

b.      The person did the crime but sees weak evidence (suggesting they have a shot at an acquittal or dismissal).

c.       The person did the crime and sees strong evidence, but decides to roll the dice anyway (explaining our high conviction rate).

This same rationale can be applied to many civil cases and settlements.  Replace the word “prosecutor” with “plaintiff’s attorney” and “plea arrangement” with “settlement.”

While it is easy to blame the jurors, sometimes a weak case is just a weak case.  Sometimes an attorney’s presentation of the evidence is poor and the jurors just “don’t get it.”  Sometimes a jury is not very bright and gets it wrong.  However, rarely (if ever) does the popularity of a crime-based television show create a substantial influence on a verdict.  Unless, of course, the trial actually involves the TV show, actors or network.  Then you might say it would be a case of the CBS Effect (cue The Who, put on sunglasses, cut to show opening credits).

(Blogger’s Note: I apologize for that last line.  I’m not as good at cheesy puns as one might ass-u-me.)

Blogger: Matt McCusker 

THE ART OF PSYCHIC MIND CONTROL (In Three Easy Steps)

 Let’s face it, we have all been in the position where we wanted to use psychic mind control to influence the actions of someone around us (spouse, child, neighbor, juror, etc.).  Unfortunately, no matter how well we explain our position, sometimes the other person just doesn’t “get it.” Well, argue no more.  Now, for the price of a free cup of coffee, you too can utilize your brain to its maximum potential and psychically control your family, friends, and even perfect strangers! 

(DISCLAIMER: Brain maximum potentials may vary.  Consult your doctor before participating in any brain maximization exercises. Deliberations is not responsible for any injuries resulting from brain overuse or unfortunate consequences associated with psychic mind control.)

How is this possible?  It’s easy! Just follow these three basic steps and watch everyone do whatever you say:

1)     Assess the Subject

2)    Identify the Narrative Goal

3)    Manipulate Your Presentation

Or, as I like to say: “Tune up your brain and A.I.M.”

Step One: Assess the Subject

Research has shown that we all have the ability to read minds.  At last year’s American Society of Trial Consultants Conference in Atlanta, Dr. David Matsumoto of Humintell taught us how microexpressions are universal indicators that humans from Fiji to Finland display regularly.  Amazingly, I found that after two hours of video training, I increased my accuracy at correctly identifying these brief emotional indicators from around 40% of the time to over 80%. 

We can even read minds “remotely” through photos.  A blog by Katie Moisse at the Scientific American outlines research that suggests people can predict a person’s political party affiliation (Republican or Democrat) based on facial photos.  This study utilized black and white pictures of U.S. Senate candidates and college year book photos of voters to test whether people could accurately predict which party they aligned with. The results showed significant success (although generalized and imperfect) based on stereotypes about Republicans and Democrats. (Which begs the question: Should covers actually be used to judge books?)

For attorneys, step one would entail making an honest assessment of the community and jurors involved in their case.  This could include: Thinking about the attitudes of the area, doing pre-trial research, designing strong voir dire or juror questionnaires, and most importantly, paying close attention to the responses. 

Step Two: Identify the Narrative Goal

While it would seem easiest to simply tell someone what you want them to do, psychic mind control requires more finesse.  Rather than dragging them along, it’s better to decide on a finish line and offer signposts to help your audience arrive where you want them to.  The most basic method of accomplishing this is by engaging in the art of storytelling.

Whether it be through religion or culture, the most lasting stories of human history are those that impart some sense of morality or learning experience.  The Bible; The Koran; The Torah; Buddhist Sutras; all of these impart morals that highlight the benefits of being a good member of society (and the potential downfalls of not).  Theories of sociocultural evolution suggest that we have a predisposition to attach to these stories of morality because, as humans, we need the group to survive.  Ted Kaczynski types aside, we are a very social species and naturally attach to themes that engage this premise.

Some of the best examples of lasting stories come from a Greek slave named Aesop.  His fables became so imprinted in the cultural lexicon that we now only need to speak a few words to impart the entire story: “Sour grapes”, “cried wolf”, “the Tortoise and the Hare.”  One of the best methods of accomplishing psychic mind control is to create a story that taps into this internal need for social justice (honesty, hard work, selflessness, etc.).

Step Three: Manipulate Your Presentation

You have measured your listener(s) and catered your goals, the final step of psychic mind control is to change your message transmission; this means altering your language.

Research has suggested that something as simple as word choice can have dramatic surprising psychological and physical effects to the state of the listener.  One method of utilizing this phenomenon is to build themes on common turns of phrase and imagery (“taking a step back”, “unclean thoughts”, “that’s heavy”, etc.).

The Association for Psychological Sciences published an article (The Body of Knowledge) which outlines a variety of studies exploring the field of embodied cognition.  This area is based on the premise that many common sayings actually provide cognitive/neurological reactions from the recipient.  For example, one study found that subjects who were asked to think about a time they were rejected by someone, assessed the temperature of the experiment room as significantly colder than those who were asked to think about a time they were accepted by someone (“out in the cold” versus “warmly received”.)

By choosing your words carefully, your listeners will both hear and feel the power of your story. Thus, rendering them helpless to your metaphysical manipulations. It’s as easy as 1, 2, 3.  Just (1) know your audience; (2) craft a good story; and (3) use powerful imagery through language; then you too can be an expert in the Art of Psychic Mind Control.

Blogger: Matt McCusker