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Group Psychology, Voir Dire, Jury Selection and Jury Deliberations

Ken Lopez
By: Ken Lopez

Jury Questionnaire, Jury Consulting, Jury Consultants, Voir Dire, Jury Selection, Psychology, Leadership

by Ken Lopez
A2L Consulting

Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I've been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I've ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure.

I think the author Robert Young captures the essence of the group dynamics model Bion describes when he says, "My experience was that, sure enough, from time to time each group would fall into a species of madness and start arguing and forming factions over matters which, on later reflection, would not seem to justify so much passion and distress. More often than not, the row would end up in a split or in the departure or expulsion of one or more scapegoats."

I've written about Bion's work before in 5 Signs of a Dysfunctional Trial Team (and What to Do About It) and When a Good Trial Team Goes Bad: The Psychology of Team Anxiety. These articles and Young's article from the Human Nature Review provide a good introduction to Bion's group dynamics model. Here are the key aspects of Bion’s group dynamics model.

In Bion's framework, groups are always functioning in one of two modes. Either they are working or they are operating dysfunctionally (he called this later state the Basic Assumption State). Both groups rely on a leader, and the members interact with the leader in predictable ways. In the working group, the group gets things done. They understand the meaning of the task at hand and cooperate to get it done without unnecessary emotional distress.

In the dysfunctional group, much less gets done, and the group moves through a progressively worse set of dysfunctional behaviors triggered by some anxiety or pressure. Initially, the dysfunctional group will attempt to look to the leader to make the anxiety go away by treating the leader as a type of wise superhuman. If that fails to make the anxiety go away, two or more members of the group will begin to conspire to replace the leader or form a new group, If that does not work, fighting and/or departures will begin. All of this is subconscious, but once you understand the patterns, you'll see them everywhere. Knowing where you are in the process of dysfunction can be one of the most valuable tools a manager, leader or consultant can have.

I bet you can guess another group that behaves in predictable ways that I have an interest in — that's right, juries. And they certainly behave in ways that solidly fit Bion's group dynamics model. If you understand how this works, you can use this knowledge during jury selection.

Our team has seen thousands of juries deliberate. That's unusual since jury deliberations are secret. Of course, when we see them deliberating, often four juries at a time, it is behind the one-way mirrors of mock trial facilities. The behavior we see from jury to jury is remarkably consistent. We've detailed some of these behaviors in the article 10 Things Every Mock Juror Ever Has Said and the webinar and the podcast 12 Things Every Mock Juror Ever Has Said. Furthermore, an article by A2L's Managing Director of Jury Consulting, Dr. Laurie Kuslansky, called 10 Ways to Spot Your Jury Foreman is a useful background piece for those interested in this area of study.

When a jury is operating effectively (a well functioning working group as described by Bion), it focuses systematically and logically on the task at hand. This jury moves through the evidence in an orderly way and avoids a result-driven approach to deliberations.

There is much that a litigator can do to help a jury operate in this way, including explaining to the jury how to calculate or why they shouldn't calculate damages, illustrating how to work through the verdict form, and making the case clear and compelling through the use of storytelling and professionally designed demonstrative evidence.

But, what if a jury becomes anxious? What if unanimity is required and there is a holdout (e.g. 12 Angry Men)? What if there is strong disagreement among jurors? What if the case is hopelessly confusing? Under these circumstances, a jury can become dysfunctional. Unfortunately, this happens more often than it should.

I asked our own Dr. Laurie Kuslansky about the application of group dynamics to juries, and she shared some key ideas to remember.

"Most jurors start out with a false consensus," she said. “They believe everyone will think the way that they do. If we do not screen for leadership and get the right amount on our jury, a jury becomes far less predictable. This is especially true if we are in a venue where it is socially acceptable to stand your ground like the Southern District of New York."

Juries are not irrational, they just look at things differently than a lawyer. They are looking for experts in the group, and they are looking for leadership. As we help to assemble a jury during the jury selection process, a key part of our job, both as jury consultants and as litigators, is to ensure the right types of leaders are present. If we do our job well, we can achieve better control over group dynamics.

Other articles and resources related to group dynamics, jury selection and jury consulting from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

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