Few types of cases involve more complexity—legal as well as technical—than intellectual property disputes. The nuances are often subtle, the distinctions (“is this code the same as that code?”) virtually impossible to understand without a graduate degree and years of experience. Naturally, jurors don’t have that kind of background, but they are determined to make sense of a dispute that is way over their heads. They want facts, they want testimony that they can trust, but ultimately they aren’t going to judge the case based on a granular understanding the technology. They judge the case with the facts in the background and their values and life experiences in the foreground. And what they have taught us over the last two decades is that what we understand about life’s lessons can guide remarkable understanding. Not only of a patent or a trade secret, but also about what makes society work better, and how values can direct decisions in even the most arcane situations.
We wanted to share some of those lessons–all of which we’ve written about separately with a somewhat different focus on our firm blog (The Jury Room). In each lesson, we link to posts on our blog in the event you wish to learn more. We often find that our mock jurors can speak much more eloquently than we can on how to conduct the best presentations. One of our East Texas patent jurors who described himself (after hearing the first round of evidence in a large mock trial) as a “confused good ol’ East Texas boy” told us:
“I have no trouble judging what’s right and wrong. Just tell me the facts. Don’t sugarcoat it. And I’ll tell you what I think is just.”
That sort of common-sense and straightforward approach is how we typically try to structure case narrative in patent and IP cases. We want to bring the theoretical into practical and relevant lessons that make sense to jurors who have no knowledge of the patent process but have strong beliefs as to what they know is right and wrong. We are indebted to our mock jurors who have shared their decision-making processes with us and we hope they are both interesting and useful to you as well.
Lesson 1. Make it real in their everyday lives.
Intellectual property cases are often esoteric, arcane, theoretical, and complicated which results in the risk that jurors will see the case as deadly boring and confusing. We see pretrial research as a way to test strategies for communicating difficult ideas in a way that resonates with jurors or if jurors simply tune out and make their verdicts based on extra-evidentiary evidence (“I didn’t trust the Plaintiff attorney because she smiled too much”).
There are ways to teach the science, the process, the idea, the widget, the huge machine, industry standards, and even exotic theories. But it does take practice and often, after years of work on a case, you need fresh eyes to help you see how to tell a story simply and yet in a way that captures the listener’s attention. Whether the details of a specific case are contained in patent law, high-tech and abstract concepts, or even “brain science“, jurors need to understand it enough to make judgments on the case. And they will make judgments whether they understand your presentation or not. The question is whether those judgments will be informed by bias, knowledge, or by a coin flip and a longing to be done with jury duty.
We know from more than 20 years of interviewing jurors that they have a strong preference for clear understanding. They don’t want to get it wrong. Whether they achieve clear understanding or not, the burden of teaching falls entirely on the attorneys presenting the case. Often our mock jurors help to make the abstract and complex both concrete and simple, or at least familiar and that is a benefit of pretrial research and jurors struggling to understand concepts that are completely foreign to them. You just need to help them relate the theory, process or idea to their everyday lives. Sometimes that is done through animation, sometimes through a good analogy raised by a mock juror, and other times through a serendipitous event (never something you want to gamble your case on) that helps them engage as with this example from a juror in an infringement case.
We had a patent case once where a mock juror kept giggling when a slide was shown with a small section in the county highlighted on a graphic. In deliberations, despite his lack of formal education—he was vocal and opinionated and instrumental in shaping group opinion. When asked about his earlier giggles—he grinned sheepishly and said,
“Well, I happen to live on that spot. I know it was an example to illustrate for us how patent holders stake out their property but it just struck me as funny that they were suing for all these millions over my house!”
For him, the personal identification with a pretty obscure technical patent infringement case challenged him to focus and master the information to the extent he found possible. We got lucky with this particular juror. In another juror, the knowledge that the graphic pointed to their property may have made them disinterested because it “was obviously not real.” It is wise to not leave these sorts of lessons to chance!
Lesson 2. Realize “their world” is likely very different than your own world
Sometimes it seems like our work takes us back in time. We sometimes visit rural areas (such as the Eastern District of Texas and the Western District of North Carolina) that time seems to have passed by (seriously). Rural venues are subject to confidentiality issues due to the small number of jurors in the pool. You can’t realistically “match” a very rural venue without going to a similar very rural venue, but “rural” is very different from region to region. We have had clients tell us they “matched” a very rural venue in pre-existing pretrial research in a suburb of a major city only 100 miles away, and we always recommend they do it again. And when they do, their jaws often drop in horror at just how different real rural mock jurors are from those suburbanites. At a mock trial we conducted in a very rural area, of 36 mock jurors, only 4 had internet access at home. At another, of 48 jurors, only 11 had smartphones and a majority didn’t understand the question. Most had not “heard of” the amazon.com website! Those were projects with multiple high tech companies as defendants and they were shocked at the lack of awareness of their companies, products and attitudes toward their work. One of the companies was a major social networking site and they were taken aback when a retired schoolteacher called them “the work of the devil” and the other jurors nodded somberly.
Granted, these particular projects were a few years ago, but if we were to return there today, experience with technology would still lag far behind their urban cousins. Recently in Chicago, of 48 mock jurors, all but 2 owned smart phones, and everyone had internet access at home. The implications for what kinds of technology, witnesses, themes, and demonstratives would resonate with farmers and ranchers versus college grads and office workers are huge.
What this means for teaching is that you have to respect their reality and work to figure out how to help them understand the central issues of your case. That means relating to their unique world and crafting your story so it makes sense to them and they can care about your case. Our experience has been that these are among the nicest people you will meet. They are friendly and eager to be of help. They welcome us even when they know we are very, very urban. They enjoy ribbing us about it, and often invite us to enjoy their corner of the world. Once, we got a recommendation for the best restaurant in town—a Sonic drive through where “their frozen ice cream is just top shelf.”
They are the kind of people who, if you don’t know where something is, are likely to offer to drive where you are headed so you can follow them there. Solid gold. Of all they have taught us, and it’s a lot, perhaps the most important lesson has been that if you treat people with respect, good humor and kindness, you are almost always treated that way in return. Can you find a way to incorporate that into your trial story? The tone and tenor of witness testimony? It is one of the ways that builds the bridge between what matters to your client, and what matters to these jurors.
Lesson 3. Incorporate familiar Sesame Street lessons: “One of these things is not like the other”
Sometimes patent cases revolve around showing how two things are the same or different. This is a question jurors are often comfortable with since it is one we’ve all thought about as we move from childhood to adulthood. In 2011, we blogged about an article that described strategies for making things seem either the same or different. The researchers in this article concluded this:
If you hold something in your hand, you notice differences among objects more effectively.
If you look at something from a distance (not near your hands), you are more likely to note similarities and consistencies between those things.
The researchers say this all began when we had to tell poisonous berries from non-poisonous berries and we cannot say with certainty that they are wrong. But for us, the knowledge that there are different processes involved in close-up examination and observation from a moderate distance is a game-changer.
So, back to our story—we were in Western North Carolina for a patent infringement project on the prototype of a very heavy industrial device. Not huge, just heavy. And we saw this exact phenomenon in real life. Because of how heavy the prototype was, it was on the table in front of Doug as the focus group facilitator. He described the similarities and the differences in appearance and function between the prototype and the invention alleged to have been copied. Jurors focused on appearance and how the two items ‘looked’ the same.
But as the group prepared for a break, jurors were told they could approach and examine the objects. They did. We turned up the volume in the observation room and all studied the jurors as they examined the same objects up close. And from the privacy of the observation room, we saw them feeling and poking and hefting and examining the prototypes and exclaiming they could now ‘see’ differences between the two prototypes.
The implications for patent and IP cases are pretty straightforward.
If you are trying to establish that two objects are similar, use words to describe the similarities, and show the object from a distance. If you want to establish differences, allow for hands-on inspection.
Most of the patent work we have consulted on involves computer hardware and software—too ephemeral to be seen either close up or from a distance. But in those cases when it is a more physical invention (such as aircraft parts, turbines, highway guard rails, or a design for car seats) the opportunity is ripe.
Most IP litigation involves claims of infringement (are these two things the same?) and validity (is this different than what has come before?).
The more physical the contact jurors can have with the exhibits, the stronger their belief in the correctness of their decisions. It becomes more ‘real’.
We saw something similar when working another infringement case involving large and bulky but very familiar objects we had to keep outdoors at our facility and take jurors on a “field trip” to see them up close. The objects were placed side by side on the ground and jurors watched from a distance while an attorney explained the claims of both parties and pointed to the relevant sections. Once the attorney was done, jurors were given the opportunity to examine the objects more closely and we heard similar “oooh’s” and “aaah’s” as they poked, kicked, hefted, and peered closely and “saw” the differences.
Lesson 4. Huge damages and playground logic
No discussion of lessons learned from intellectual property jurors would be complete without discussing huge claims for damages and the effect of those damages on jurors. When jurors first hear the damages models, they often are shell-shocked. But that quickly fades and they begin discuss numbers in the billions and triple digit millions as though that were a commonplace thing. Some refer to this as the “decimal drift.”
One of the things we’ve learned from our mock jurors (especially in the high dollar disputes of intellectual property and complex commercial litigation) is that the higher the damages ask, the more that simple truths resonate with jurors. They want to know how to “make it right” or how to “make it fair.” We think of this as a way jurors can manage decisions about such huge amounts—they make it simple and they make decisions based on broad principles rather than fact nuances. The numbers lose meaning.
Here’s an example:
We did a mock trial on an IP case where a smaller high-tech company (we’ll call them David) was suing a huge high-tech company (and you know we’ll call them Goliath) for ruining their business. In this instance we were assisting Goliath. What we found was very interesting.
Early on, jurors were asked who among them tended to “automatically root for the underdog.” Of the 8 jurors who acknowledged this tendency, seven were ultimately plaintiff jurors. In our report to the clients we wrote:
Only one other attitudinal question differentiated plaintiff and defense jurors; the question is one of perceived fairness. All defense jurors thought the world was “not fair.” All plaintiff jurors thought it was fair. The predominant undercurrent in plaintiff jurors’ responses throughout their written questionnaires is one of “Goliath”’ not having been “fair.” Defense jurors, on the other hand, talked about “Goliath” not being “nice” or “not communicating well,” but focused on the right of any business to protect their intellectual property. For defense jurors therefore, the actions of “Goliath”’ might not be right or moral but they were not illegal. For plaintiff jurors, the actions of “Goliath” were unfair and caused righteous indignation as “the world should be fair.”
While most cases do not divide this neatly into plaintiff or defense juror orientations, it is intriguing when they do. Even in cases with huge damage models, playground values of fairness predominate for some jurors. In this case, while we were able to identify plaintiff and defense jurors relatively easily, both groups had sharp words for both “David’” and “Goliath.” (You can read examples of those “words” in our blog post on this case). The difference was:
Defense jurors accepted the conduct as regrettable but inevitable, while Plaintiff jurors viewed it as reprehensible.
We see this sort of reaction a lot. Jurors choose between the lesser of two bad choices as they deliberate.
Lesson 5. Identify “hot button issues” and deeply held core values and beliefs
In 2012, we wrote about a research study on what price (most people) would ask for their soul. What the researchers were looking for were “deeply held and sacred beliefs”. They figured that when people refused to sign a document expressing the opposite value from what they believed (in return for $100), the researchers labeled that belief a “sacred belief” for that particular participant. The researchers compared the fMRI’s for non-sacred and sacred beliefs and found that different areas of the brain were activated when the individual considered whether they would accept money for signing a statement inconsistent with their own beliefs. In other words, the researchers saw an entirely different decision-making process underway.
These findings are not particularly surprising to those who track the neuroscience literature. We think of this idea of the “sacred” a little differently in constructing trial arguments, and we want to know which statements correspond to firmly held or ‘core’ beliefs and values. What we see in our focus groups and mock trials is that there are idiosyncratic “sacred” ideas or perspectives for some jurors—and what we hear of those sacred ideas depends on what the case is about.
When we are doing corporate or contract work, we hear jurors who say “that just isn’t right” and other jurors who say “it’s just business and it happens all the time.”
When we are doing patent work, we hear jurors say “the inventor should get any money that ever comes out of this idea” and others who say “technology has moved on and this patent doesn’t have value.”
In personal injury death cases, we hear jurors agreeing that “No amount of money can adequately compensate the family for the loss of a loved one” and others who say that trying to cash in on the loss of a loved one is wrong. But the impact of those beliefs is that some jurors say that as a result the family should get little or nothing, while others feel that the moon is not high enough.
All of these positions represent sacred values to those engaged in the dispute. Over the years we’ve developed strategies to help jurors surprise themselves by making a decision inconsistent with what they believe is a deeply held value. It really does happen and when it does happen, it can be a beautiful thing.
Lesson 6. Understand just how deep mistrust of corporations goes
Nearly fifteen years ago when Enron failed, we thought the sharp increase in distrust of corporations would dissipate over time. Instead it seems to have become even more deeply entrenched. There is now a tendency to simply assume the worst of corporations and their poor business ethics which often lead (in the minds of our mock jurors) to trickery and corruption. In 2013, we had a series of corporate clients doing mock trials within the same month and juror comments in cases from New York to Texas were incredibly similar. Here is a sampling of some of the juror comments we heard across very different cases.
Rather than focusing on the facts of the cases, they leapt to negative assumptions about the corporations, and based on their imaginations alone (and certainly not on facts in evidence) came up with observations like the following:
“Well, they’re probably not a real non-profit. They’re probably going to expensive hotels, throwing $3,000 parties every week, having catered lunches, paying themselves huge salaries, and lining their pockets with ill-gotten gains. I want to know what their personal lifestyles are like.”
There was consistent concern with the “real people” who were potentially being harmed (or who would potentially be harmed) by corporate misbehavior.
“You know who’s really going to end up paying? Us. The taxpayers. Especially homeowners in these small towns. Poor people. It’s just not right.”
And in one case, involving fraudulent backdating of tax-related documents, jurors were appalled.
“Well, isn’t that also defrauding the US government? This man has no shame and he is just disgusting.”
There was also an abundance of question about conspiracy or at least collusion where the mock jurors made cognitive (aka conspiracy-fueled) leaps to fill gaps in the case narrative.
“I knew it! I told you so. Now I understand what happened here. This wasn’t those two’s first rodeo.” [Yes, this one was in Texas.]
Because these projects occurred so close together, it was natural for us to compare and contrast how jurors responded. In part it boils down to identity management of the parties. When you are representing a corporate client, take special care to show jurors (without them asking) how “this corporation” is different–they care about their community, they support local charities, they offer benefits to their employees to help them improve their lives, and they take steps to fix things that are wrong when those things are brought to their attention. (You may have to help the corporation understand how important it is that these things be true.) And ultimately the story may have to include ways in which even a careful company is comprised of humans who, in spite of best intentions, are no more perfect than the people who are blaming them for A to Z.
Frustration and distrust of corporations is palpable, no matter what the case themes are and no matter what the venue–across the country people have learned you cannot trust corporations to do the right thing. Position your client as being distinct from that untrustworthy norm. Sometimes, all it takes is a single witness who is seen by the jurors as ethically solid, credible, knowledgeable and honest for them to find for that party. A corporate defendant can become a good neighbor.
Lesson 7. The special case of foreign parties
When we first began to consult on IP litigation about 18 years ago, foreign corporations were not the norm for our practice. That has changed, as leading tech companies have a global reach Now our patent and complex commercial cases often involve at least one non-US party and sometimes numerous non-US entities. The general skepticism about corporate ethics and business practices is amplified when the companies in question are from outside the US. We find ourselves not only listening for our mock juror biases against “them” but also paying attention to the unique cultural experiences and expectations from our clients that add dimension to the trial story that are interesting and compelling. The anti-foreign bias is strongest in cases where the foreign company is not seen as treating US companies fairly. Here, for example, are a few quotes from recent mock jurors in cases involving foreign parties (and yes, even Canadians are foreign parties):
“He seems very aloof and precise. Unemotional. Perhaps it’s a cultural thing since he was born in South Africa.”
“Asians are always knocking off American ideas. You can’t trust them. It’s part of why our economy is in trouble.”
“If the parties’ national affiliation were reversed, I would say this is typical since the [Plaintiff’s country’s] citizens rip us off all the time. But these Defendants are from Canada. It’s confusing to me. I wish it was the other way around so I’d know how to make sense of it.”
“None of the Defendants speak English. How am I supposed to assess their honesty when they don’t seem knowledgeable?”
Some of these jurors are aware of their biases and others remain blissfully ignorant. These sorts of reactions almost always lead to frank discussions about culture, cultural stereotypes, and cultural biases with our clients (the attorneys) and their clients (the international party’s representative). In those conversations, we model a curious and respectful dialogue to facilitate communication and comfort with our difference. And we learn a lot along the way.
We often see bias against foreign companies expressed in a thinly veiled joking fashion–especially when it comes to Asian entities. Perhaps it is in part due to our vulnerable economy and perceptions of China overtaking the US as a global superpower. Perhaps it is a fear of the stereotypical sense of Asian intelligence or maybe a leftover stereotype from all those old James Bond movies portraying Asian men as super-villains. Perhaps it is all of those things, or something else. Regardless of the reason, it has to be anticipated and mitigated.
The challenge is to help the jury see the witness (or the foreign entity) as relatable, credible, and familiar. And for foreigners, the complications are far more involved. The intense discomfort that most witnesses experience when testifying is compounded by the international view of the American jury system. We have prepared witnesses from over 22 countries, including most of Europe and many Asian countries with technology industries, and what the witnesses tell us of their expectations is the product of some news coverage and a lot of exported television. The result is an impression of irrational and wildly punitive verdicts against defendants, and especially foreign defendants. That fear naturally produces anxiety and inhibits the genuineness that aids credibility and connection to the jurors. Witness preparation for witnesses from Europe and Asia is significantly different than it is for Americans.
When we were asked to work on a major defense case for a giant European industrial concern, the witness pool (mostly European engineers) was extremely skeptical. We began the ‘witness school’ with a lecture on what Americans think of Europeans, and vice versa. That lecture—research-based and well referenced—opened the door to a much more candid discussion with them about the prospects for effective cross-cultural communication. But if the prep (and the discussions with the corporate decision makers and insurance market representatives) had skipped over the cross-cultural issues, the ability of the litigation team to support the witnesses would have been much more limited.
Lesson 8. Use your expert witness thoughtfully and with an agenda
There are few things our mock jurors hate more than what they see as “dueling expert witnesses.” It really creates a dilemma for jurors who hear one expert say one thing and the second expert say a second thing (diametrically opposed to the first witness). What jurors really crave is some help in understanding the issues, which can get very murky. The more esoteric and theoretical the content, the more they hate it when “experts” don’t help them understand the case. When we work on patent litigation that is on software code or scientific processes that not even the lawyers for the parties truly understand—we watch as confusion reigns. The judge can’t understand it. Certainly the jurors don’t.
But a version of this densely scientific material can be taught. Effective teaching and patient testimony from an expert can reassure jurors that this witness can be trusted, and that this person will help them find their way through this strange wilderness of code, formulas, or physics.
Given this perspective, and from watching parades of dueling experts over the past 20 years, there are several things we ask our expert witnesses to do in their testimony:
We want them to be a really good 7th grade science or math teacher.
They explain their position, keeping in mind that they are teaching people who are motivated to learn but naive. But then, they tell the jurors what the counter-arguments (aka what the opposing expert will say) and why their position makes more sense and is supported by scientific consensus. They offer the counterpoint, and an equally engaging explanation for why that version of the dispute simply doesn’t fit the facts.
It always takes practice for experts to get this down. More than once we have been focusing on the need to speak in common language only to have the expert say “It cannot be explained more simply.” And they actually refuse to try. For a brief while. It is important for the attorneys or consultants who are prepping them to know why they are so resistant: They want to be correct. The full, correct answers are often really complicated, and the expert doesn’t want to be criticized for simplifying it to a point of error. And obviously, for appellate purposes the lawyer doesn’t want that either.
But to make it useful for jurors requires comprehension. And it requires cooperation from the witness. Explaining that you respect the challenge of telling a complex story in simple language can help the expert feel understood and appreciated, even when he is being asked to only tell part of what she or he knows. They are not talking to a peer-review panel, they are talking to home makers, teachers, clerks and people who work with their hands. Once an expert learns the lesson of who the “real audience is,” it’s a lesson we think they don’t forget.
Lesson 9. When age of your juror really does matter
There have been criticisms for years of mock trial research that uses what are referred to as “convenience samples” (i.e., college students). While there are arguments made for why “convenience samples” are statistically no different than community samples, we think there really are some important differences between our community adults and our student mock jurors. Here are a few we described back in 2011 that still hold up well today.
Cases that require life experiences to assess damages can leave college-student mock jurors pretty silent. They don’t “get” the rationale for damages and depending on personality style—will either follow older jurors or stubbornly insist on low or no damages.
High-tech cases with high-tech college-student jurors often result in young jurors speaking up actively and being listened to and questioned for additional information by less technologically proficient (and often older) jurors.
Wrongful death cases (or other cases where a damages component is mental anguish) typically result in lower awards from these younger jurors who do not yet have the life experience to empathize with chronic pain, or the horror of the loss of a partner or child.
Patent cases or intellectual property cases are often less concerning to our younger college-student jurors. They often do not see intellectual property theft as “that big a deal” and often have a higher standard of proof for awarding damages. An effective voir dire demands questions regarding attitudes about “sharing” software, music, digital media, etc.
The contribution of a Millennial juror (in research studies or in a jury room) depends a lot on individual characteristics of those individuals, and also on how much they understand and use technology. The challenge of interpreting the technology is often one that bonds older and younger jurors when older jurors comment on being “too old to get this” and younger jurors share their own difficulties understanding or offer common-sense analogies to help increase understanding.
Lesson 10. Unseat the self proclaimed “expert” in deliberations
Suppose you end up with a self proclaimed expert in the deliberation room? We see this routinely in pre-trial research when group members take a small bit of experience or knowledge and assume ‘“expert status.” If no one questions their knowledge and they present well, a single self-appointed “expert” can hijack your case. That’s why it’s essential that you teach jurors clearly and thoroughly about the essential details of the deliberations.
In highly technical cases such as patent disputes, it is often the “shade-tree mechanics” (i.e., those that know more than average but not a lot, or anything directly on point with the disputed technology) that are certain, while engineers and scientists (i.e., those that know a lot, but are more aware of what they don’t know) presume far less.
You can lessen the impact of the “self-appointed expert” in the jury deliberation room through educating all the jurors. As we point out in a blog post on the Dunning-Kruger effect, the incompetent do become more aware of their incompetence once they become more competent, but they need to be provided information that will carry them from their initial posture to a more informed position. In our experience, they will be equally emphatic either way. Even if the self-proclaimed expert refuses to consider your evidence other jurors will take it in and have information to discredit the (not-so) “expert.”
In jury selection, remember that a little bit of knowledge—or even an average amount—can still involve an individual open to changing their attitude. But if a juror believes that he or she has a firm base of knowledge it is detrimental to attitude change. Why? Because having (or believing that you have) specialized knowledge relevant to a particular situation/case results in biased processing—you fall back on what you believe to be true rather than listening to what the facts are and processing more carefully.
We saw this in a product liability case involving an automobile manufacturer. Prior to the case presentation, we measured the amount of knowledge participants in the focus group had about auto repairs and other mechanical issues.
What we found was striking: the more people perceived themselves as having knowledge about cars and things mechanical, the more defense-oriented they tended to be.
In deliberations they dismissed expert testimony about the highly technical issues, relying instead in their “‘shade tree mechanic” level of knowledge about how cars work.
Those focus group members who did not have similar levels of self-appointed expertise were more frightened by what had happened and tended to be more plaintiff-oriented.
In that case, above-average knowledge about a relevant case area resulted in a bad juror for the plaintiff case and thus, a good juror for the defense.
Beware the self-professed expert with good verbal skills—unless it will work for your case. They will rely less on facts and more on their own beliefs.
Lesson 11. Teach jurors to get back on track when discussions derail
When we first began to blog (in 2009) we saw a wonderful story about a San Francisco jury deliberation that went seriously off the rails when jurors were sidetracked by a question from one of their own about “how one would know if you’d truly disturbed a bear.”
Jurors can be distracted by the oddest things! Part of your job is to ensure they do not wander off on “rabbit trails” that lead nowhere and are ancillary to the story itself. An example of this type comes from San Francisco and a jury deliberating on a charge of “disturbing dangerous animals” after a mentally ill man snuck into the home of two female grizzly bears at the San Francisco Zoo. The question was whether the defendant had known he was entering a bear enclosure. Jurors however, became preoccupied by how one would know if you had indeed “disturbed” a bear and eventually acquitted the defendant.
This is obviously an unusual story for a jury to hear. What is more important is that the jury became sidetracked and engaged in a lengthy discussion of how one knows if a bear is disturbed. It is not unusual at all for us to observe this happening on cases where there are unforeseen “holes” in the case narrative and one (or more) of the mock jurors leap in with both feet and derail the discussion. We have sat behind mirrored glass with our clients and listened in varied emotional states to discussions of whether two witnesses were having an affair, whether a young female witness had used cocaine just prior to her deposition or if she had a cold, and even spirited discussions of whether a woman’s hair color was actually one found in nature. While (sometimes) entertaining, it is always cause to re-evaluate how we tell a story (and to interrupt the mock deliberation to refocus their attention).
We’ve learned to plug those holes discovered in the case narrative during pretrial research, but we also want jurors in the deliberation room to have tools to bring the focus of the discussion back. As with any type of trial, it is essential to teach jurors both how to deliberate and to teach them how to get back on track when discussions go seriously off the rails.
Here are some of the ways you can educate them to keep deliberations on task.
Walking the jury through the charge via over-sized exhibits is a terrific way of helping them to focus their attention in deliberation.
Characterize some of the foreseeable rabbit trails as clever distractions from the truth. Help the jurors to anticipate the issues, and to set them aside in favor of the story elements that are meaningful and relevant to the actual verdict issues.
Let them know what the operative (i.e., important) terms are in this case.
Then, when faced with a rabbit trail, jurors can appreciate the humor in a “define disturbed” segue but return quickly to the (relevant) task at hand.
Lesson 12. Character matters
You may think, “Wait! Aren’t we talking about intellectual property cases here?” and yes we are. But whether we are working on IP, contract disputes, catastrophic injury, corporate malfeasance, family trusts, high stakes divorce cases, or financial fraud allegations, jurors make judgments about character. In IP disputes, they often wonder about the people involved–was this the inventor’s dream stolen by a gigantic corporation? (In those cases, jurors often think of the alleged inventor as David and the gigantic corporation as Goliath.) In contract disputes, they assess both honesty and what they often think of as “business sense.” In catastrophic injury, they want to know whether the injured person or their family caretakers are “good people.” In corporate malfeasance cases, they look for a corporate representative they can trust. Family trust disputes and high stakes divorce cases are among the saddest cases we work (and since we are based in Texas, we do a fair amount of that work) and we hear dispirited jurors sigh about how money doesn’t make you happy and wonder why a family dispute ever came to litigation. In cases of financial fraud, jurors’ sense of suspicion is heightened and we often hear whisperings about possible conspiracies.
In other words, no matter what the case is ostensibly about, it’s always about the people. It’s always about character and it’s always about which party jurors believe. Character matters. The more ways you can tell a story to highlight good character, honesty, integrity and concern for the downstream impact on the public, the more our mock jurors support the party.
Lesson 13. It’s always about the people
What we see over and over again in our pretrial research is that jurors are always concerned about the human element rather than solely focusing on the technology or science or process or idea or product. Was someone harmed? Was what happened fair? Is there a way to make it right again? It isn’t that they are not listening. It’s simply that they need to hear what they think of as “the rest of the story” in order to care and feel their decisions are just. And the human context is crucial to their sense of justice and fairness. Here’s an example of how those juror concerns came out in a patent case:
The technology explanation was dense and incomprehensible. After two years in case development, the attorneys were in love with the technology. The jurors, hearing the case for the first time, were confused by the technology and wanted to hear about the people involved. Where was the invention development file? Inventor’s notebooks? Who was harmed? Who was cheated? Whose dream was stolen? If the patent is validated or invalidated, what is the impact?
A second example comes from a contract case. In this case, the mock jurors liked the Plaintiffs more but thought they’d made reckless decisions and didn’t want to blame the Defendant for what had happened.
A contract case where much of the agreement was not detailed in writing. The attorney thought the fine reputation for good work in the local community would serve the Plaintiff well and that jurors would want them to be able to continue in their work. This was a difficult case for jurors to hear because they knew about the good works of the Plaintiff and admired it immensely. But the jurors thought that good practitioners do not necessarily make good business decisions. They thought the defendant was a schmuck, but also that the Plaintiffs had no real case.
One of the studies we keep in mind concluded we are more angry (and perhaps even morally outraged) if we think someone hurt us intentionally. It is a playground lesson we carry forward into adult life. Harvard researchers have found that pain hurts more intensely if we think it is being inflicted intentionally rather than accidentally. The authors use the example of why we stay in abusive relationships—if we presume the hurt is accidental, it’s okay to stay. When we finally realize the hurt is intentional and will continue, we can often muster the courage and integrity to walk away.
This is an intriguing study because it speaks to the heart of telling the emotional story at trial. You want jurors to have an emotional response—a connection to your story, to your client. You want them to “want to” find for your client, and see him or her as a worthy recipient of their support. What this research tells us is that if the pain inflicted on your client was “intentional,” jurors may have a stronger emotional response to it. Here is how we might use this research finding to inform practice:
In a high stakes divorce case: S/he purposely deceived your client knowing full well that if these behaviors had been known, our client would have ended the relationship.
In a contract case: They entered into this verbal agreement with no intention of performance, their intent was simply to delay competitive progress while they worked on their own plans.
In an intellectual property case: S/he purposely worked with us to take our research findings to a competitor and secretly filed a patent application before ours was filed.
And so on. Your goal is simply to light the fire of moral indignation in the minds of the jurors. You want to answer both aspects of the common juror refrain “it may be legal but it sure isn’t right.”
Show them it isn’t right.
Show them it isn’t legal.
Give them facts to buttress their feelings in deliberations.
Sometimes what feels wrong is still legal conduct. That is unsatisfying to jurors, but they usually want to track the law in their verdicts. But sometimes the law works as it should, and what is wrong is also illegal. When that happens, jurors become engaged on a very personal level.
Let them know: “This one isn’t right AND it isn’t legal.”
Douglas L. Keene, Ph.D. is a psychologist, founder of Keene Trial Consulting, Past-President of the American Society of Trial Consultants, and teaches Advanced Civil Trial Advocacy at the University of Texas School of Law. He assists law firms with trial strategy (including focus groups and mock trials) on major civil litigation and white-collar criminal defense. He assists with voir dire strategy, jury selection, witness preparation, and related services. His national practice is based in Austin, Texas and you can visit his website here.
Rita R. Handrich, Ph.D. joined Keene Trial Consulting in 2000 and has since worked on cases ranging from medical negligence to commercial litigation and intellectual property disputes. She is a psychologist with extensive experience as a testifying expert witness, management consultation and training in the multi-generational workplace. In addition to providing trial consulting services through KTC, she is Editor of The Jury Expert. Rita is a frequent contributor to “The Jury Room” – the Keene Trial Consulting blog [and ABA Blawg 100 honoree for 2010, 2011, 2012, 2013 and 2014; and ABA Blawg Hall of Fame award in 2015].
References (by lesson learned)
1. Make it real in their everyday lives.
2. Realize “their world” is likely very different than your own world
3. Incorporate familiar Sesame Street lessons: “One of these things is not like the other”
4. Huge damages and playground logic
5. Identify “hot button issues” and deeply held core values and beliefs
6. Understand just how deep mistrust of corporations goes
7. The special case of foreign parties
8. Use your expert witness thoughtfully and with an agenda
Several posts on the impact of “dueling experts” on mock jurors: http://keenetrial.com/blog/?s=dueling+experts&x=0&y=0
9. When age of your juror really does matter
10. Unseat the self proclaimed “expert” in deliberations
11. Teach jurors to get back on track when discussions derail
Several posts on how to teach jurors to deliberate: http://keenetrial.com/blog/?s=how+to+deliberate&x=0&y=0
12. Character matters
13. It’s always about the people