By Dr. Ken Broda Bahm:
An Iowa jury just handed down a $240 million verdict on behalf of 32 mentally disabled men who lived and worked for decades at a turkey processing plant and were paid just $65 a month. That verdict, the largest ever in an EEOC case, captures the jurors’ feelings about such blatant exploitation, but in addition to anger, the judgment also signals one other critical ingredient: a feeling of power. As one juror noted, she wanted to send a message: “We wanted to let people out there know that, in the future, this cannot happen.” That sense of power can also be evoked when a jury returns a defense verdict. For example, last year a Manhattan federal jury found in favor of Citigroup and against the Securities and Exchange Commission. In that case, the jurors noted, “We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct.” So they issued a statement along with their verdict which was read aloud by the judge: “This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary.” In other words, “Change the law and we’ll get them next time.”
What unites these examples is that in each we are hearing the voice of an empowered jury. In the right circumstances, a jury’s verdict is not simply an answer to a legal question, it is a message delivered by a body that has come to feel that it has the legitimate power to deliver that message. Power, or more accurately the feeling of having it, is an important dimension to consider in analyzing any audience. So this post is going to take a closer look at this concept of juror power. Of course, a jury has real power, subject to the limits of appeal, but in given situations they can be either more or less sensitized to that fact. Becoming aware of that power can lead to more dramatic decisions, as in the examples above, but based on some new research, it can also effect some important changes to the ways jurors think.
Power and Punishment: The Research
Scott Wiltermuth and Francis Flynn, business school professors at USC Marshall and Stanford respectively, wanted to look at power in a business setting. Noting the perception that leaders often become infused with a stronger sense of right and wrong and come to perceive actions with much less moral ambiguity, they also noticed the same thing in classes based on the degree of perceived power. “We noticed in our MBA classes,” Wiltermuth recently told ScienceDaily, “that the students who seemed to feel most powerful had these absolute answers about what’s right and what’s wrong.” So, they wanted to test out the hypothesis that greater power leads to a “moral clarity” that results in greater punishment. Conducting four experiments (Wiltermuth & Flynn, 2012 – You can download the article here), they manipulated perceived power by giving individuals the ability to control resources and administer rewards and punishments. Then they presented the participants with scenarios involving transgressions of some kind. They found that those participants who were made to feel more powerful were more likely to say either “yes, the behavior is immoral,” or “no, it is not immoral,” but much less likely to say “it depends.” The authors noted that their findings “imply that once you obtain power you become more likely to see things in black-and-white” and less likely to appreciate shades of gray. They also found that once they did perceive wrongdoing, the more powerful and “morally clear” participants were more likely to hand down severe punishments.
This finding has some clear implications for litigation since many situations in trial involve one party working hard to create that black-and-white sense of right and wrong, while the other side is working equally hard to encourage jurors to appreciate the many shades of gray and to adopt a healthy sense of doubt. So whether you want to foster or downplay a jury’s sense of their own power will depend on your goals in the case. Naturally, venues and judges vary widely on what will escape objection in openings and closings, but here are some thoughts on ways to either emphasize or de-emphasize the variable of juror empowerment.
Build Up Power to Encourage ‘Moral Clarity’
A jury that is helped to see and appreciate their own power are more likely to render a decision that is clear, unequivocal, and dramatic. They are more likely to reach a result that sends a message rather than one that splits the difference. So what provides jurors with that sense of power?
One, remind jurors of their power: At this point, you are the ones who will be making the final decision, so you have the power to either set things right or to leave them where they stand.
Two, frame their decision in powerful terms. You’ll be answering these questions on the verdict form, but more broadly you’ll be answering another question that is just as important. And that is the question that is on my client’s mind: Do we as a society tolerate acts like these or do we shut them down?
Three, focus on impacts and consequences. The verdict isn’t really the end of the story, it is the beginning of it. That is because the next day, and all of those that follow, will continue to be influenced by the judgment that you make here.
Play Down Power to Encourage Nuance and Relativism
Of course, one doesn’t always want a jury filled with moral purpose. That is not only to escape the brunt of a verdict for the party advocating change (a plaintiff or a prosecutor), but it may also be relevant for any party whose case depends on some appreciation of ambiguity and fine distinctions. A plaintiff pursuing a theory that might seem implausible on face (e.g., McDonald’s hot coffee) might not want to speak to the jury’s ability to make a broad statement because that statement might well be a rebuke. Instead, that party might be more interested in playing down the “message” and getting the jury to see the controversy within the narrower frame of simple legal responsibility. So how do you dial down the power?
One, emphasize the limits of the decision. A jury isn’t tasked with the goal of making everything right, because no one – at least no one on this earth – can do that. Instead, a jury is tasked with just answering some specific questions.
Two, focus on instructions. And these questions are legal questions, not broad personal matters of good and evil or right and wrong, but much more specific legal questions of what the law — not me, or you, but the law — punishes or doesn’t punish.
Three, focus on the judge’s role. As a jury, you are the final step in this process but, trust me, there have been a lot of other steps. The judge has at this point narrowed the controversy to just the issues you see on your verdict form and, when you are done, the judge will enter a verdict on them.
Of course, none of this advice takes the form of an absolute black and white statement (…because I don’t have that much power). Instead, it is a matter of degree and emphasis. For example, if you are trying to empower your jury, you would still want to emphasize the legal instructions. But you would want to give a little more salience to the “send a message” components than you give to the “answer a legal question” components. In addition, in suggesting that you can play up or play down the elements that draw attention to jurors’ power, I’m not suggesting that you can tune your jury like a fiddle either. Jurors have their own sense of power, and that is often independent of an attorney’s control. Still, attorneys should do what they can to influence this variable as they try to influence all the other variables in persuasion. A jury’s understanding of their own power — either diminished or magnified — can be an important part of your strategy in trial.
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Other Posts on Factfinder Power:
- When Arguing Damages, “Drop Anchor” Even in Murky Waters
- Consider the Jury’s Political Role
- The Dangers of Persuasion: Mind Your Jury Leaders
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Wiltermuth, S., & Flynn, F. (2012). Power, Moral Clarity, and Punishment in the Workplace. Academy of Management Journal.
Photo Credit: Justgrimes, Flickr Creative Commons (edited by author)