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Thirty years ago, nearly 10 percent of federal tort cases were resolved by a jury or bench trial. Currently, no more than 2 percent are resolved by trial (Bureau of Justice Statistics, 2008). During the same timeframe, the number of cases resolved through alternative dispute resolution methods such as arbitration has skyrocketed. This trend may be largely attributed to the rising cost of litigation, judges’ frequently requiring parties to participate in a settlement conference or mediation before going to trial, and arbitration clauses in contracts that are commonly used in many standard business contracts. For example, in March 2008 the State of Delaware Court of Common Pleas amended its Rules of Civil Procedure to require all civil cases to go through some form of ADR prior to trial. As mentioned above, the rise in ADR may be attributed to several factors, including rising litigation costs and increasingly longer delays between case filing and trial. An additional reason for the increase is the perceived unpredictability of going to trial, particularly in front of a jury. Jury verdicts are often criticized as being irrational, unpredictable and out of control. In the face of such an allegedly illogical decision maker, ADR can be an attractive alternative to litigants. However, research on jury decision-making tells a different story. The research tells us that, on the whole, juries make well-reasoned decisions based on their perceptions of the evidence, and the methods they use to make their decisions are fairly predictable. The research also tells us that judges and juries agree on the outcome in a large majority of instances. These findings suggest that the belief that trying a case to a jury is akin to a “rolling of the dice” is unfounded. A vast body of research explains how jurors and juries make decisions. The research includes various types of methodologies, including surveys of jury-eligible adults, students and former jurors; mock trials using adults and students; and analyses of actual jury deliberations. Almost all research on jury decision-making has shown that the largest predictor of verdict outcome is the strength of the evidence presented. Jurors strongly prefer to base their decisions on the evidence, as opposed to emotion or extra-legal factors, and will do so to the extent they understand its meaning and relevance. It is when jurors cannot understand the evidence or do not know what to do with it that they fall back on other sources of information, such as the experts’ educational institutions. Jurors view information through the filter of their personal experiences and preconceptions but rely mainly on the evidence, as they see and evaluate it, in making their decisions. Several studies have shown unexpectedly high agreement rates between judges and juries (more than 75 percent) in civil and criminal trials. When jurors’ and judges’ preferred outcome differed, judges tended to be less lenient than juries and often cited information not available to the jury as a basis for their decision. Further, surveys of jurors and the judges who presided over their cases indicate that judges do not rate the cases as more complex than the jurors, indicating that jurors show a healthy appreciation of case complexity but aren’t overwhelmed by it. To be fair, the research also shows that there are many ways in which jurors can become confused or misuse evidence. For example, it is well accepted that jurors often fall prey to hindsight bias. In other words, a negative outcome, rendered obvious by the trial itself, is a strong indicator to jurors that someone did something wrong. A common misuse of liability and damages evidence by jurors is called “fusion” – liability evidence often influences damage awards, and severity of injury often influences liability verdicts. However, once you take the time to understand how jurors take in, evaluate and utilize evidence, common points of confusion, misuses of evidence and general decision-making processes are predictable and therefore manageable by litigators. The Story Model best describes the process of jury decision-making – jurors develop competing plaintiff and defense stories, compare each party’s story to their own personal experiences and common sense, and match the stories with the available verdict options. As researchers have identified, jurors tackle the overwhelming task of reaching verdicts by embarking on this logical, rational course of information processing time and again. This “tried and true” means of dealing with new information allows jurors to carry the heavy task of rendering a verdict with confidence and gives them a sense of ownership over their decision. While jurors’ decisions are grounded in some form of logic, occasionally the rationale is not immediately apparent, resulting in the perception that a jurors’ verdict has come from left field. When all of the facts are not entirely evident at first blush, jurors struggle with the appearance of sequential “gaps” in the stories or arguments presented. The appearance of these “gaps” is dangerous because jurors have a tendency to fill in the gaps themselves rather than with the evidence provided, which is a result of human nature rather than a defect in jurors’ information processing. If efforts are made to recognize that the danger exists, it can be easy to plan a strategic presentation of your case story to ensure jurors’ inclination to answer unresolved questions does not impact their verdict decisions. The ultimate goal should be to arm jurors with enough information about your case story so that they can pick up where you left off when they get to deliberations. Constructing a story that embodies case themes, covers information without significant lapses of time, and anticipates jurors’ questions will exponentially reduce the likelihood that they will write those portions of the story for themselves. Providing jurors with a comprehensive story of a case, which does not ignore the difficult facts, can help jurors manage the large amount of information with which they are bombarded at trial and make their job in deliberations easier. Mock trial jury research has long been relied upon to test juror perceptions in a particular venue, test theme development and assess verdict and damages risk. This pretrial preparation tool also is essential in testing the acceptance, or rejection, of the story that has been crafted by both parties in a case. Conducting jury research can protect and build upon the considerable investment of time and resources spent identifying themes, highlighting the most relevant facts and evidence, and constructing a story. Mock trial exercises can shed light on how jurors evaluate parties’ case stories from their perspectives, as well as provide trial counsel the opportunity to observe how jurors construct the story of the case for themselves. Allowing counsel and clients to witness how surrogate jurors from the venue identify strengths, weaknesses and themes in the case can make the juror’s decision-making process less enigmatic and more predictable. Realizing a jury trial may not be as risky as anticipated can guide counsel’s decision-making when it comes to determining whether ADR is truly the way to go. Whether ADR is the prescribed first or final step in litigation management, there are ways to incorporate research into the preparation plan for such proceedings. Certain research protocols designed to offer counsel insight into how jurors in the venue identify a range of damages can be instrumental in aiding the process. Jury research can provide information helpful to negotiations, such as feedback regarding jurors’ evaluation of evidence and impressions of the parties. It can also give counsel and clients confidence in the settlement amounts being considered and ultimately agreed upon in the process. Mock arbitrations, where counsel argues the case to surrogate arbitrators matched in experience and expertise to the actual panel members, can provide valuable insight into how people with similar perspectives view the case’s strengths and weaknesses. Aside from the traditional mock trial research, counsel may also prepare for ADR by conducting witness preparation specific to the format of a particular ADR proceeding. In arbitrations particularly, witness preparation can be vital to ensuring your client’s story is consistently communicated through the witnesses, while keeping the listener in mind. When arbitrators are chosen because of their expertise or familiarity with the subject matter of the case, witnesses should be prepared to communicate to those individuals differently than they would a typical juror. That is not to say that they should be prepared to address the arbitrators as colleagues in their field. Witnesses must be prepared to walk a fine line between communicating at the appropriate level and assuming the arbitrators know more than they actually do. Communication experts with experience preparing such witnesses are well versed in identifying that line and giving the witness tools to manage it. In instances when ADR cannot be avoided, strategy for case management becomes particularly critical. Strategies may be exposed that can impact future trial proceedings, and parties run the risk of settlement agreements that leave them feeling anything but settled. Conducting research and taking the time to prepare witnesses strategically in those instances will save precious time and ensure that parties are discussing a resolution that makes sense. When it comes to deciding between ADR and trial, ADR does not spare litigants from having to manage risk or prepare for potentially unfavorable outcomes. In both arbitration and mediation, counsel has to address difficult facts, difficult witnesses or client representatives, and potentially difficult outcomes. Certainly when mediation is concerned, you run the risk of having both sides “unhappy” with the result. When that happens, the old tenet of “a successful mediation means unhappy parties on both sides” applies, but it does not make that pill any easier to swallow. There also may be times when clients do not wish to spend time and resources pursuing ADR. Perhaps there is an issue regarding liability that doesn’t lend itself to compromise, or from a public relations aspect a party has taken a hard stand on certain issues to protect its reputation or avoid further litigation. In those instances, ADR can become more of a challenge than a helpful, alternative resource. With clients demanding increased accountability from counsel on litigation management, knowing how to manage jurors’ decision-making processes may lead to more “just” outcomes for your clients. At the same time, it may ultimately breathe life back into the trial process as we know it. Leslie Ellis and Jocelyn Cinquino are jury consultants with TrialGraphix/Kroll Ontrack. They advise attorneys on trial strategy, theme development and testing, jury profiling, witness preparation and judge/jury decision making. They can be reached at [email protected] and [email protected]

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