By Dr. Ken Broda Bahm:
My first thought was, “What’s NPR’s talented social science correspondent, Shankar Vedantam, doing talking about fish?” The story, reported on Friday, focused on research showing that fish make better decisions when swimming together rather than when swimming alone. An interesting finding, but where’s the “social” in that “science,” since people aren’t fish? In the very short segment, however, Vedantam did draw a connection to human decision making in a way that sparked some of my own thoughts on jury behavior. It all comes down to the power of the aggregate. “Social scientists have long known,” Vedantam explained, “that when you aggregate answers from people, you get more reliable answers.” For example, “If you take a bunch of polls and add up all the answers and get the average of the polls, the average of the polls will give you a better estimate of which way the election is going than any individual poll.”
Jury deliberation is a similar form of aggregated opinion. It is not a matter of one juror deciding, and not even a matter of a group of jurors combining their individual votes. Instead, deliberation depends on a unique process of aggregation allowing the jury to speak with one voice. According to Vedantam, there are some processes that regularly occur during aggregation. Paying attention to those processes during the observation of mock juries, as well as the analysis of real juries, is useful not only for those who watch and analyze mock trials, but also for legal persuaders who are looking to understand and adapt to their jury. By looking at the way a jury ‘schools’ together, litigators can better appreciate the circumstances that produce a verdict and gain some insights on the differences between persuading an individual and persuading a group.
The Benefits of ‘Schooling’
Whenever I get the chance to go diving in the tropics, I see these great schools of fish and wonder, “Why do they swim in schools? Isn’t that a pretty clear advertisement to predators? Wouldn’t they be better off on their own?” But the research covered in the NPR segment may answer those questions. Based on work by Christian Agrillo of the University of Padova in Italy, the reason for schooling behavior may be to improve decision making based on the benefits of aggregation: All the fish together are making better decisions than any of the fish would make on their own.
Those benefits are known to apply to people as well. “Among humans,” Shankar Vadantam explains “aggregation seems to work because the overly positive estimates cancel out the overly negative estimates.” We’ve noted this benefit in previous posts, for example, focusing on FiveThirtyEight blogger Nate Silver’s ability to very accurately predict the presidential election based on an aggregation of polls. In a litigation context, this aggregation occurs as jurors deliberate, isolating the extreme views on either side and building a consensus based on what is left.
There is also a leadership factor at work. Vendantam explains, “With fish, it seems to be more of a meritocracy…the fish somehow figure out which fish is the smarter fish, and they both end up doing whatever the smarter fish decides.” That too is a factor that plays a role in jury deliberations. Some jurors will end up as leaders, and will exert far more influence on the ultimate verdict than will the average juror. So it is safe to say that the ‘school’ is in session within groups in two ways: first, extreme choices are isolated and moderated; and second, leaders emerge to direct and structure the group’s options.
Watching a Jury’s ‘Schooling’ Behavior
The first question when watching a mock jury deliberate might be: “What’s their verdict?” But the more important is always going to be: “How do they get there?” The process is messy, but there are still some recognizable phases as the jurors work toward aggregating their individual preferences into a collective verdict. Based on my own experience watching hundreds of such groups, I believe it is meaningful to talk about separate stages the jury will go through. It is not always linear, with some phases being skipped or repeated, and juries likely to move backward as well as forward in the process. But as advice for mock trial observers wanting to know what to look for, let me suggest that you keep an eye out for six phases.
The Process Phase
For a few moments at the start of deliberation, the jury will ask itself, “Okay, so how do we want to do this?” Usually the question focuses narrowly on how they would like to start, but sometimes a highly analytic or Type A panel will want to map out the whole procedure for deliberation. Sometimes, jurors will draw upon the judge’s instructions, but more often, they will just rely on their own norms for cooperative communication. A common initiating suggestion: “Why don’t we just go around the table and talk about how we feel?”
The Expression Phase
Whether the jury has formally decided on this initial step or not, it is common for early deliberation to simply feature different jurors sharing their own impressions of the case. Sometimes jurors will share their overall assessment of who they thought has won and why, and sometimes they will just comment on a high point or two, reacting to a specific issue, piece of evidence, or witness. It is at this stage that the followers on the jury will find out which way the wind is blowing, and some will adapt their own views to be in line with that trend.
The Scrutiny Phase
After, and sometimes during the expression phase, jurors will begin to scrutinize the opinions being offered by other jurors. They’ll do this by offering counter arguments, by pointing out something the juror is leaving out, or by simply asking “Why?” More often than not, those in the apparent majority are the ones criticizing the minority viewpoints, but sometimes it works the other way. This is a critical phase in deliberations, and one of the most useful phases when you’re trying to analyze a case. The emphasis is not just on “What do you think?” but on “Can you defend it?”
The Influence Phase
As jurors scrutinize each other’s views, disagreement will at first be heightened, but then it will diminish over time as jurors end up influencing or succumbing to the influence of others. A juror will stop arguing for a number of different reasons: a) They’ve become convinced by the other side; b) They’ve come to doubt their ability to defend their own views; or c) They’ve recognized the ultimate unlikelihood that they’ll sway a majority or a unanimity to their side. Sometimes, particularly in the shortened time frame of a mock trial, it is simply a choice to stop disagreeing: an implicit or explicit, “I think what I think, but I’ll never convince you so I won’t stand in the way of the group.”
The Compromise Phase
At other times, of course, jurors in the minority will stand their ground. When that happens, deadlock is a real possibility, and in a mock trial, jurors understand that a deadlock can happen without much consequence. But when the jury does get past this point and move to a consensus verdict, it is generally the result of compromise. It doesn’t always include explicit horse-trading (e.g., “Will you vote with us on liability if we keep damages to a minimum?”), but sometimes it does. Even when implicit, the effect is the same, and the process accounts for the fact that a jury, as a whole, can reach a verdict that individual jurors would not have chosen on their own.
The Closure Phase
The last step is for the jury to make sure that they’re clear and settled upon a verdict. It can be surprising, but it is not at all uncommon for a jury to go through all or most of the phases above without referencing the verdict form. Instead of answering the specific questions asked by the court, they are answering a more general question: “Who do we think should win?” But in the end, the jury understands that it needs to map its general preferences onto the specific verdict questions. Often that prompts some confusion and a return to earlier phases, as well as questions for the court. Ultimately, the goal is to dot the I’s and cross the T’s, confirm that the verdict matches their intentions, and deliver it to the court.
In dividing deliberation into phases, I don’t want to give the false impression that it is neat and orderly. That impression isn’t just false, it is wildly, empirically, and reliably false. We once hosted a combined mock arbitration and mock jury trial at the same time. The audience was able to switch back and forth from watching the live deliberation of the jurors in one room and the arbitration panel in the other. Jurors and arbitrators reached nearly identical verdicts, but the ways they got there could not have been more different, with the mock arbitrators moving through an orderly and analytical discussion and the mock jurors bouncing all over the place. One viewer commented that it was like watching a group of cats attempt a synchronized swimming event.
The lack of clear organization and linearity to the discussion doesn’t mean that the jury isn’t systematic, and isn’t accomplishing different goals at different times. I believe that anyone who has spent time watching mock juries deliberate will recognize the phases described above, or some close cousins of them. Knowing about those phases not only provides a useful playbill for the mock trial observer, but it also carries an important reminder for the litigator: You aren’t just persuading individuals, you’re preparing a group, and individuals within that group, to work through a process.
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Other Posts on Deliberation Process:
- See the Process and Not Just the Product inDeliberation
- Determine Whether Your Jurors Are Driven by Processor by Verdict
- Pay Attention to Minority Influence
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Image Credit: 123rf.com, used under license