Jury Economics: Recognize complexities in case, and plan to prevent randomness in the outcome
By Thomas M. O’Toole and Kevin R. Boully
It was devastating for the defense team to watch. Jared, one of the few jurors willing to consistently speak up, took control of the deliberations to offer a convoluted and completely erroneous explanation of the technology at the heart of the case, creating a path to a plaintiff’s verdict that the plaintiff’s own trial team likely did not anticipate. What the defense team thought was an easy defense had now become $45 million in exposure. Fortunately, this was only a mock trial, not the real thing. While the defense team thought its case was strong, it was smart enough to recognize the complexities involved in the case and conducted the jury research to discover problems exactly like the path Jared exposed in mock deliberations.
Complexity in cases introduces randomness in outcomes. When jurors are confused, they struggle to participate in deliberations either because they lack motivation born of their lack of confidence to rearticulate explanations of the issues, or because their confusion makes it impossible for them to defend in detail any position in the case they might feel inclined to support. This struggle leaves deliberations to the whim of whoever is willing to speak up and take control of the discussion regardless of their grasp of the facts. We call it the complexity randomness factor. Willingness to speak up in deliberations is not necessarily the result of a reasonable grasp of facts and evidence. In fact, in complex cases, there is often little resistance to erroneous assumptions or views of the case since other jurors are often too confused to challenge the erroneous views of the most vocal jurors. This means people like Jared, who are brave enough to assert themselves in deliberations of a complex case, can exert significant influence over the outcome even when they are wrong.
Too often, the answer to case complexity for many litigators is more educational efforts, with the presumption being that more information, more testimony, and/or more exhibits will provide more clarity. The solution is often that more is better. Instead, more is just more. It usually does the opposite, leaving jurors overwhelmed and even more desperate for a shortcut through the mayhem. The key to successfully managing complexity randomness is to give jurors something familiar. When people are overwhelmed and confused, they seek out and quickly latch onto anything that is familiar to them. A familiar face at a party where we do not know anyone gives us immediate comfort. A familiar idea or narrative at trial can do the same.
This sounds simple enough, but we find it is much more challenging for litigators to truly embrace, often because they are more focused on proving their case than they are on persuading the jury, and these do not go hand in hand. One of our mentors used to preach, “don’t let the facts become shackles.” Hilarious as it may sound, it turns out to be sage advice. We know jurors will remember very little of what they heard over the course of trial by the time they reach deliberations. Complexity and confusion only further erode this erasure of facts and testimony. Jurors in turn, fill these memory gaps with their own personal experiences, beliefs, and narrative tropes. In short, jurors do not necessarily decide a case on the facts, so why should the trial team worry about proving its case rather than persuading the jury?
Familiarity does not require 100% accuracy. In fact, good persuasion is often about triggering familiarity to help move jurors closer to an accurate understanding of facts or evidence that objectively differ from their actual memories, experiences, or beliefs. The familiar helps jurors slide toward the actual. Jurors will not abandon something familiar simply because there are a few wrinkles. Instead, they will cling to the familiar and find ways to smooth out the wrinkles by explaining away or simply ignoring facts to the contrary. This is to suggest attorneys should adopt familiar narratives or themes that are directly contradicted by good evidence. Familiarity is unlikely to get that far in promoting disregard of the facts. Instead, we are only suggesting attorneys abandon their neurotic views that a good, familiar theme or narrative comport with every fact in the case. This approach eliminates narrative possibilities that jurors want and need.
In a recent patent infringement mock trial involving a case with an incredible level of complexity due to the invention being related to cutting edge computer technology, narrative tropes helped drive defense verdicts even though it was clear that absolutely none of the mock jurors understood the technology. It was equally clear that this hurdle was unlikely to be overcome. The technology was in fact incredibly confusing and even if the defense could explain it in a way that jurors might understood, it was unlikely the jurors would be able to re-articulate those explanations back in the deliberation room, meaning there would still be little resistance to people like Jared. Instead, the defense adopted the narrative trope of “technology evolution” and argued the plaintiff made “a bad bet” on the invention it patented because a revolution in this technology followed only a year or so later, causing the entire industry to pivot away from plaintiff’s invention. While none of the mock jurors understood the technology, they all readily embraced the suggestion that computer technology has rapidly changed over the years, often going in completely different directions than anyone anticipated. This made it easy for them to believe the plaintiff had made a bad bet by predicting the wrong future for computer technology.
In fact, the defense found that mock jurors enjoyed giving their own little anecdotes in deliberation about how much technology has changed in their own lifetime, which meant more time in which the discussion in deliberations was focused on issues that favored the defense. The end result was the defense prevailed in all three mock juries despite the fact that virtually no mock juror understood the technology in the case. Amidst all the complexity and confusion, the defense gave mock jurors a familiar story that they could relate to in their own lives, and the mock jurors ran with it. And while this narrative trope did not perfectly fit all the facts of the case, it was easier for the mock jurors to ignore or explain away contradictory facts rather than thrust themselves back into total confusion and uncertainty.
The success of this strategy lies in its ability to provide jurors an easy and understandable way of thinking about the case. When jurors are confused by complex issues in cases, they look for shortcuts. Here, the defense provided a very compelling shortcut whereas the plaintiff’s case strategy asked jurors to do a lot more work than was otherwise necessarily to resolve the case.
The complexity randomness factor is real and often explains what happens when mock trial outcomes vary so much from the actual trial outcome in complex cases. The outcomes may have been different, but the processes were the same: Jurors were lost until one of them made some random argument that made sense to everyone else, giving them an easy way to resolve the case. The only way to these negative outcomes is to provide jurors with your own familiar and compelling shortcut for thinking about the issues in the case.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle. Kevin R. Boully, Ph.D. is a Senior Litigation Consultant at Perkins Coie in Denver.