Jury trials are a cornerstone of our modern legal system. In fact, it could be argued that they’re a necessary component of a democratic society. Yet for all their advantages, jury trials also present certain challenges for us as Ohio civil litigation attorneys.
Personal vs. human juror biases
The reason is simple: juries are composed of people, and people are complex. We all have our own individual experiences and beliefs that color the way we view the world. In addition to those personal biases, there are more general human biases that are a part of our psychology and how we are wired.
Personal biases and prejudices are part of the reason why there’s a process called voir dire (meaning “to speak the truth”) where attorneys ask potential jurors questions in order to assess whether they are able to render a fair and impartial verdict. But what about the subtler juror biases? The ones grounded in basic human psychology and not just prejudice or partiality? Those too require certain techniques in trial if we are to ensure our clients secure the justice they deserve from a jury of their peers.
Primacy, recency, and the art of storytelling
When presenting a case to a jury, a certain amount of storytelling sensibility is helpful (as we’ve discussed before) in order to maximize the information’s impact. The primacy and recency effects are biases that cause people to better recall the first and last parts of information presented in a series.
With any kind of storytelling, capturing the audience’s attention right away is key. For the purposes of presenting a case, primacy can have an incredible impact—it means telling the story in a manner that immediately gets the jury focused on the issues involved, as well as the outcome that’s being advocated.
On the other hand, the very last statement a jury hears can also make a big impact, especially if it’s a longer trial. In terms of recency, we like to finish our presentation of the evidence with compelling testimony. A persuasive closing argument powerfully summarizes the testimony for the jury members and provides them with something to discuss as soon as deliberation begins.
Juror bias of loss aversion
One of the more fascinating, and less obvious, forms of juror bias that civil litigation attorneys need to keep in mind is rooted in the concept of loss aversion. Social scientists who study human behavior report statistics showing people have a strong tendency toward preferring the avoidance of losses over the acquisition of gains.
This inclination toward loss aversion requires subtle adjustments when dealing with a jury. If, for instance, the jury’s job is characterized as awarding compensation to improve the plaintiff’s life, jurors will likely interpret that as providing a gain and will feel less receptive toward it.
If, on the other hand, an award is characterized as a means of making up for a loss suffered by the plaintiff, jurors may be more inclined to agree with granting it. They are able to view the award as effectively restoring the plaintiff back to the state they were in before they were wronged. In the jurors’ eyes, the plaintiff’s life isn’t improving by adding a gain, rather, the void that was created by the defendant’s misconduct is being filled. The difference is quite subtle, but it can have a powerful impact on a jury.
Appealing to the status quo
A related strategy for addressing jury biases involves how you present the “status quo,” or typical situation, of the plaintiff. There’s a tendency for people to like things to stay relatively the same, as opposed to changing them. In court, we take that preference into account.
For example, in a personal injury case, if a client’s status quo is being projected as that of an injured person, the jury’s receptiveness will potentially be different than if the status quo was presented as that of a healthy person. We aim to project a healthy status quo for our clients so that, in the minds of jurors, an award to the plaintiff will restore the healthy condition they enjoyed before it was degraded by the defendant’s misconduct.
The importance of being personable
Many human biases come into play during jury trials, and knowing how to strategically address them is a mark of a great attorney. However, there is more to practicing good, effective law than text book knowledge—being personable and accessible are also extremely important attributes of successful civil litigation attorneys. We strive to communicate using clear, simple language that juries can easily respond to in order to get the best outcome for our clients.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.