By Dr. Ken Broda Bahm:
In a recent jury selection, the attorneys, clients, and I were huddled over the seating grid for the panel, talking about our strikes. “I like Jones,” the client said, “with her background, she is really going to identify with our witnesses.” Those kinds of feelings are very common during this part of the selection process. Especially for the clients, there is an operating principle that “like attracts like,” and doctors will want someone with a medical background, business executives want someone with a similar role or a similar business, and technocrats will want those with a similar technical background and acumen. As the trial consultant, however, I am often in the role of calling for my team to use its strikes on those potential jurors who seem a little too similar to us. Why? Because the jurors that would seem to be our natural friends can often end up being our enemies, or at least risk inhabiting that ambiguous “frenemy” category of being in some ways both favorable and risky.
There are reasons, some based on practical experience and some based on social science, underlying the fear that the “enemy” side of that equation will win out over the “friend” side, and that similar-to-us juror could end up not just being a critic of our side, but a very influential critic precisely due to that similarity. The same experience that made the juror familiar and likable to the client can also induce a hindsight-driven and self-protected attitude of, “I would not have let myself get in that position,” and make them credible and influential to the other jurors. Or, that same experience can make the juror identify and affiliate with the similar parties. It could go either way, but in this post I’ll explain that there are good reasons to believe that the dark side is more likely to win out.
The Implicit Motive to Support: Identification Based on Similarity
First, let’s look on the bright side. I have written before that one of the strongest principles, and potentially a dominant principle, of persuasion is the idea of identification: The ability of persuaders and their targets to see relevant common ground based on similar situations, experiences, and commitments. When an audience believes that a speaker is similar to themselves, or otherwise aligned with their own situation and interests, that speaker is going to be more credible and more influential to that audience. That certainly can be an advantage to a specific witness. Jurors with management experience in an employment case might have an easier time understanding and believing the witness who is also in management. That explains the basic appeal of wanting your jurors to be like you.
The Implicit Motive to Critique: Self-Protection in a “Just World”
Identification, however, isn’t the only force at work. Jurors also feel the need to come up with a compelling narrative account of what happened: to rationalize what is often a bad outcome. In processing that outcome, jurors often apply a well-known psychological bias called a “Belief in a Just World.” The motivation is to believe that things happen for a reason, and bad things don’t just happen to good people without those good people having done something to make that outcome more likely. The idea of personal victimization is less troubling, less personally threatening, if we are able to blame that victim at least a little bit. While that often cuts against a plaintiff, it can also cut either way. Since a defendant is in the unfortunate position of finding themselves the target of a lawsuit, they can similarly provoke a “You brought this on yourself” attitude from a jury. And here’s the kicker: The greater the similarity between the juror and the party, the stronger the motivation to distance oneself from that risk. The parent doesn’t want to believe that a child would become significantly injured without at least some degree of parental responsibility. The doctor doesn’t want to believe that wholly blameless doctors face the risk of substantial lawsuits. The HR manager doesn’t want to believe that a careful and caring HR manager would still find themselves the target of an employee’s wrath. When someone in your shoes experiences misfortune, it is more comfortable to believe that they partially brought it on themselves, because that reinforces your own motivated sense of control over that risk.
Why Is the Motive to Critique more Likely to Win Out?
In jury deliberations, what matters is not just influences on the individual, but influences on the group dynamic. So advocates should focus most on factors that don’t just influence an individual leaning, but also survive and thrive in the crucible of group deliberations and vote. What I have observed in mock trials, and what also makes sense in a social science context, is that peer-critical sentiments are more likely to be used as reasons during deliberations than peer-supportive statements. I think there are two reasons for this.
One, The Motive for Self-Protection is Strong in a Negative Scenario
Litigation is a negative scenario, typically for both parties. Whether plaintiff or defendant, something bad happened: Someone was harmed and someone was sued. Broadly speaking, most jurors wouldn’t want to be in the shoes of either party. In that specific setting, we should expect the self-protective motivation to be stronger than the identification motive. To the doctor, the bias of “I wouldn’t have done what that doctor did…” is likely to be much stronger than the bias of “That doctor is like me.” That is one thing that proponents of the Reptile perspective have gotten right: The motive to distance oneself from a perceived threat is a powerful motive.
Two, The Criticism Sounds Unbiased and Less Self-Serving
You might say that similarity makes us care, but criticism makes us share — and in deliberations, you care most about what gets shared. In a deliberation context, the criticism is going to sound more neutral than the support. Let’s say an engineer on the jury comments on one of the parties who is also an engineer. If it sounds like the motivation is “Us engineers need to stick together,” that is not likely to to be persuasive to the other non-engineers on the jury. But if, on the other hand, it sounds like, “I know engineering, and this guy did some things that I would never do” then it is likely to be hugely influential to the non-engineers on the jury. In effect, you now have an expert witness that you can’t cross-examine, and that person is sitting in with the jurors during deliberations.
This dynamic creates a reason to fight the tendency to want the ‘birds of a feather’ to flock on your jury. While it is certainly possible that they’ll support your similarly situated client, it is also possible they’ll be devastatingly effective critics, and that is my greater concern.
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Other Posts on Jury Selection:
- Move Beyond the Myths of Voir Dire
- Use Forced Choice in Oral Voir Dire
- Fight for Your Strikes
- Let the Lawyers Ask: Five Reasons for Attorney-Conducted Voir Dire
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Image credit: 123rf.com, used under license