by Laurie R. Kuslansky, Ph.D.
For decades and in every part of the nation, mock jurors who are presented with various fact patterns and legal issues tend to have the same reactions. Some are helpful and others are harmful, depending on where you stand in the case. Knowing that these issues recur over and over can help to prevent those which are unfavorable to you:
1) Why did the plaintiff wait so long to sue?
While there may be good reason to delay filing suit, mock and actual jurors often use the delay between the alleged problem and the filing of a claim as a yardstick of its merit. The longer the gap, the less credible the claim. If counsel fails to address this issue, it tends to work against the plaintiff. It is especially damaging, for example, when someone claims an issue in the workplace, but waits until they are no longer employed. To many jurors, this signals that it was the termination, separation, or voluntary departure that was the issue, not the conduct, such as discrimination, that is the subject of the complaint.
2) That doesn’t make sense.
Lawyers don’t always put their case through the basic “smell test” or test of common sense from the layperson’s perspective. They skip this step at their own peril, because those are the tools most accessible to lay jurors. While the theory of the case may work for a sophisticated user, it may go over other people’s heads and not square with more fundamental questions. Jurors’ questions may and often do fall outside the strict legal requirements of verdict issues to answer -- but if left unanswered for the jury, those gaps often harm the party that failed to close them. For example, motive may not be required legally, but is required for most cases psychologically. People want to know who gained and who lost? Why did they do what they did? Did they have alternatives? Why would someone act against their own interest? Why would a rich person nickel and dime?
3) How much should we give them?
Without the benefit of law school, or knowledge of the law, lay jurors often have no difficulty separating causation from damages. Instead, some permit other motives (e.g., sympathy), to drive a desire to award some money, whether or not liability has been proven. Therefore, it is not uncommon for mock deliberations to begin not with a question of liability but with the question, “So, how much should we give [plaintiff]?” A mere reading of instructions is not the remedy. Instead, defense counsel needs to pay particular attention to this possibility and address it directly – not only legally (the law requires a finding of liability before considering damages) – but in terms of messages of why it is okay not to award damages, or not okay to award them from a practical perspective. For example, one might argue that awarding damages to the plaintiff means that the defendant did the wrong thing and the evidence shows that these people (defendants) did not do the wrong thing.
4) That may be true, but they didn’t prove it.
Thankfully for some defendants, many jurors express their belief that the plaintiff is right, but accept that the plaintiff must prove its case and that the evidence does not amount to proof. Arming defense-oriented jurors to espouse this posture to defeat plaintiff-leaning jurors is always worthwhile, especially in cases that may engender sympathy for the plaintiff. “You may think the plaintiff is right or you may want the plaintiff to win, but the test is for the plaintiff to prove their case and if they do not do so, then you cannot find for the plaintiff.” This line of thinking should also be incorporated into the voir dire where available, e.g., asking questions along the lines of “If plaintiff has to prove its case and does not prove its case with the evidence, can you assure me that you will not find for the plaintiff?”
5) Let’s see what everyone wants to give and divide it.
In an attempt to fairly represent everyone’s position about damages, the most commonly seen approach is the quotient verdict on damages, whereby the average of the individual awards is the final one. Research has shown that it is not a true mean, but rather skewed upward because those wishing to award/punish more strongly tend to stand their ground more fervently and exaggerate the amount more than the opposing camp. To prevent this, individual jurors should be encouraged to stand their ground and should be armed with messages in summation on how to deal with this possibility.
6) Do we have to be unanimous?
No matter how clear the jury instructions when unanimity is required, someone in the deliberations will question it. This typically occurs when the group is not in agreement and seeks an easier way out of resolving their differences. If unanimity helps your side, then additional attention needs to be paid in summation to what the jury is being asked to do. Summary litigation graphics that make it easy for everyone to have a mutual reference point can help disparate thinkers converge on the points made visually, and the presenter should incorporate language that leads them to unanimity, e.g., “As we can see in this summary of the evidence, no one should disagree that x, y, z.” “Everyone on the jury saw and heard the testimony of X, which showed that …., so everyone has the evidence needed to come to a unanimous decision on that issue to decide Y.”
7) Were those real attorneys or actors?
It is surprising, but consistent, that mock jurors assume the actual attorneys are actors, but that the jury consultant is an attorney.
8) Where is it in writing?
People who lack legal training or involvement in fields in which spoken agreements are common are extremely skeptical about any oral agreement, absent documentary support. In some places, cultures, or age groups, a handshake is a durable bond (e.g., the South and the older generation), but in others, it amounts to a mere he said/she said and means little to nothing. Overall, most jurors and mock jurors reject the concept that a verbal agreement is as binding as a written one, no matter what the law may say. Though a course of conduct may help reinforce that there was an agreement, it often requires some writing to be believed, so it is an uphill climb to prove a binding agreement in its absence.
9) We should give them something.
When a plaintiff is especially sympathetic (e.g., a baby or a child), a defendant is disliked or perceived to be rich (e.g., a pharmaceutical or insurance company), or the conduct is notably unlikable (alleged pollution), jurors often rig their decisions in order to award money to plaintiffs, stating their discomfort and reluctance to send plaintiff home empty-handed. This echoes the process of awarding damages stated earlier, whereby there is a disconnection between liability and damages. Part of overcoming this behavior entails arming jurors with a message of why it is not okay to penalize the defendant when wrongdoing is not found, or why it is okay not to reward plaintiff. Again, it is a subject that should be addressed in voir dire. “Although you may have sympathy for the plaintiff(s) in this case, do you have any doubt or discomfort awarding no money if the plaintiff does not prove his/her case?”
10) It may be legal, but it just isn’t right.
For some mock and actual jurors, the moral barometer is sufficient to find liability, regardless of the legal standard. Counsel for the defense should make sure to address this possibility. While someone may not like the law, the law is what he or she is required to follow. The subject should also be included in voir dire, e.g., “If your personal feelings are different from the legal instructions, please explain if you would have any difficulty following only the law and the evidence to reach your decision.” “If you have any religious or moral beliefs that might stand in the way of you making a decision only based on the law, and setting those aside, please let us know/raise your hand.”
Here are some other resources on A2L Consulting site about jury consulting, trial consulting and mock trials:
- Contact A2L with a question about a mock trial
- 12 Tips for Getting the Most Out of Your Mock Trial
- Here are 6 good reasons to conduct a mock trial
- Get more information on our Micro-Mock service
- Sample One Year Trial Prep Calendar with Mock Trials
- Learn more about Mock Markman excercises
- 13 BIG changes coming to jury consulting and mock trials