by Laurie R. Kuslansky
Expert Jury Consultant
We have participated in a number of Great Recession cases. They tend to be related to banking, lending, LIBOR, fraudulent conveyance, securities, housing, a partnership gone bad, failed corporate spin-offs, failed transactions, or some type of fraud. We're about to start another one that also has its roots in the economic crisis and the government's response to it.
In many of these cases, we have had the challenge of reminding jurors that economic conditions looked awfully good in the years leading up to the staggering downturn. It was only at the very end of 2008 that real fear set in for the masses. So, often a jury is now asked to put themselves into a pre-recession mindset. We have used a variety of visual and rhetorical techniques to do so. From litigation graphics that incorporate a rear-view mirror or Monday morning quarterbacking metaphors, to a whole host of really scary charts showing just how bad things got and just how fast the economy crumbled, but that at some earlier point in time, it was unforeseeable.
“I knew it all along…”
The challenge is that looking back in the absence of what one already knows is daunting, and what psychology terms as “hindsight bias,”  “The term hindsight bias refers to the tendency people have to view events as more predictable than they really are. After an event, people often believe that they knew the outcome of the event before it actually happened.”
So, on this backdrop, how does it go when we ask jurors to get into a pre-recessionary mindset and judge the decisions our client made then in that light? Well, as you’d imagine, not well. It turns out that, for the most part, jurors cannot shift their thinking to really get into that mindset and some just can't even remember good times anymore or aren’t willing to do so. They can’t un-know or un-feel what they have experienced since. This is similar to the scenario in pollution cases in which, unless a juror is old enough to remember changing their car oil and dumping it, it seems unfathomable.
So, what is one to do if your case depends on a judge or jury reaching a conclusion that decisions were reasonable -- then -- not now? We're finding that the answer is embracing the reality, changing your approach, and managing for the new reality. In martial arts terms, you might think of it as redirecting your opponent's energy instead of resisting it.
Here are 5 ways jurors have changed because of the economic crisis and what to do about it.
1) Rethink Jury Selection: Most of us have stereotypes about who is the typical plaintiff or defense juror. These must be revisited freshly and on a one-to-one basis during jury selection. Some formerly defense-minded jurors have turned into virulent plaintiff-oriented ones. If their once-secure portfolio or job were hindered, they tend to be less defense-oriented;
2) Bankers Will Pay: If your opponent is a bank, use it against them relentlessly. If you or your client is a bank, expect a jury to punish that fact. To inoculate against a banker attack, you should, to paraphrase Gordon Gecko, say, “Of course my clients are greedy, they're bankers! So why do you think they would do something that would yield bad results? They wouldn't, because they are (greedy) bankers (or CEO's or business people or a Board of Directors).”
3) Perceptions Have Changed - But Not How You Might Think: Since the recession, Pew Research Center polls consistently find that the general public actually says their first priority in this economy is time -- not money -- as one might expect. Therefore, you must not waste the jury's time! Make your case very efficient by refining it with your mock jurors and litigation consultants and by summarizing the key information into user-friendly graphics. Don’t show pages of information that can be better condensed into one graphic. Know your point and get to the point.
4) Embrace New Emotions: Because of the Great Recession, emotions may be running high in voir dire depending on the length of your case, the subject matter of your case or by factors that have nothing to do with either. Rather than run from these emotions, encourage jurors to let it all out and express what is on their mind. Remember, revealing your enemies is the first goal in jury selection. Of course, those who do express themselves strongly stand a fair chance of being excused for cause and you might just be able to tamp down some of the emotions in the jury room IF this is helpful to your case. Jury selection is one of the rare instances in which it helps you and your client to welcome hostility.
5) Trial Presentation Matters More Now Than Ever: Jurors expect faster trials than we used to see twenty years ago. You have to be quicker and very often your trial presentation is the best way to achieve that. Do not beat around the bush. Tell jurors exactly what they need to know. Rather than putting up litigation graphics that encourage a conclusion to be made, show the chart AND show them the conclusion they should draw from it.
It's not just a new normal in the legal community, it is a new normal for most Americans. Things are getting much better and most people's optimism is returning, cautiously. For many jurors however, you can expect to see a lag, corporate distrust, and a way to finish the job of serving so they can get back home and to their real job, if they have one.
 Myers, David G. (2005). Social psychology (8 ed.). McGraw-Hill Education. pp. 18–19.
 Cherry, Kendra http://psychology.about.com/od/hindex/g/hindsight-bias.htm