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No lawyer who walks into a courtroom can ignore the implications of preference reversal. Preference reversal occurs when a decision changes depending on the way it is elicited. The way a question is asked can make all the difference. Children learn that an effective way to ask for a puppy is to ask first for a pony. When closing a sale, sometimes it works best to push the buyer to make a choice; at others, to ask the buyer to name a price. Yet courtroom strategies often remain founded on the assumption that juror decisions are always based on detailed, rational analysis. Behavioral-decision research suggests otherwise. Consider an experiment conducted with a group of doctors. Half of the doctors are told that one last check of the patient’s records showed that one medication has not yet been tried as an alternative to surgery. Almost all of the doctors decide to delay the operation. The other doctors are told that the check of the patient’s records showed two untried medications (doubling the chance of successful treatment). Yet most of these doctors send the patient directly on to surgery. Donald Redelmeier and Eldar Shafir, “Medical Decision Making in Situations That Offer Multiple Alternatives,” 273(4) JAMA 302 (Jan. 25, 1995). Changing the question-simply by adding an option-created a preference reversal. Under the rational model, a change like this should not matter and preference reversal should not happen. Yet research shows that it does happen. Among the factors that behavioral research has shown to have bearing on decision-making, three are especially relevant to litigators: the framing effect, decision-making rules and arbitrary judgment of value. The framing effect involves the way a decision is presented to the decision-maker. For example, a magazine listed three subscription options. The online edition cost $59; the print edition, $125; and both editions for $125. Not surprisingly, 16% selected the first option, 0% the second and 84% the third. However, when a researcher eliminated the second option, 68% chose the $59 online edition and just 32% chose the $125 option for both editions. Simply adding a “decoy” changed the question enough to produce a significant preference reversal. Dan Ariely, Masters Forum lecture, Minneapolis (Nov. 16, 2006). This type of framing activity can have a decisive impact on a case. What impact, for example, may an alternative damages award presentation have on a jury’s verdict? When will a suggested alternative award act as a decoy choice and cause a preference reversal?
MODERN JURY Nuclear win was years in the making. It really does pay to make a good first impression with jurors. Reason is nice, but subconscious cues often decide cases. Spotting, and winning over, jurors with axes to grind.

Likewise, when might the addition of a third-party liability claim cause a preference reversal and move jurors away from a decision that no one is to blame? The prominence effect Framing is also driven by the prominence effect, which concerns the disproportionate importance that people place on certain elements of a decision. For example, the strong value that a juror places on safety may lead him or her to overvalue the presence or absence of a warning. Studies have repeatedly underscored the strength of the prominence effect. In 1975, a researcher presented participants with two automobile-tire alternatives. These tires differed in tread life and price. The price of one tire was left blank, and participants were asked to fill in a price that made the options equally attractive. Later, the participants were asked to choose between the options they had equated earlier. Even though they had equated the tires on price and tread life, 79% chose the higher tread-life tire over the cheaper tire. Paul Slovic, “Choice Between Equally Valued Alternatives,” 1 J. Experimental Psychology: Human Perception and Performance 280 (1975). If jurors are asked to choose between options, the prominence effect suggests that they will tend to overvalue the option that provides more of what they consider to be more important. Assume that jurors in a patent case are driven by a strong interest in protecting an inventor. When asked to choose between a no-infringement verdict and an infringement verdict with a high royalty payment, the prominence effect suggests that their desire to protect the inventor will push them toward an infringement verdict-irrespective of the royalty amount. However, the prominence effect also indicates that the same jurors, if asked instead to calculate a royalty payment, would be less likely to be influenced by their desire to protect the inventor in determining the royalty amount. Another framing effect is called prospect theory. Research has shown that a choice between two essentially identical options is affected by the way they are phrased. People avoided risky options when the problem was framed positively, but preferred risky options when it was framed negatively. Amos Tversky and Daniel Kahneman, “The Framing Of Decisions And The Psychology Of Choice,” 211 Science 453 (1981). This study asked participants to choose between two options for combating a disease expected to kill 600 people. For half of the people, the options were framed positively, in terms of lives saved. (With one option, 200 people are saved; with the other, there is one-third probability that everyone will be saved and a two-thirds probability that no one will be saved.) For the other half, the options were described negatively, in terms of lives lost. (With one option, 400 people will die; with the other, there is one-third probability that no one will die and a two-thirds probability that all will.) With the options framed positively, 72% chose the more certain option; with the options framed negatively, 78% chose the less certain option. The questions the research findings raise for jury trials include: To what extent are damages award decisions influenced by positive framing (“An award for medical monitoring will help increase the plaintiff’s life expectancy”) versus negative framing (“An award for medical monitoring will help prevent a decrease in life expectancy”)? In capital cases, to what extent does the option of a life sentence without possibility of parole influence juror opinion by increasing the perceived certainty of the punishment? Especially significant, to what extent are a juror’s burden-of-proof perceptions influenced by the extent to which instructions and arguments are phrased positively or negatively? The threat of unavailability is a framing effect that increases the perceived value of an option. People tend to value keeping options open, even when the options offer little or no value. This higher perceived value arises primarily from aversion to loss, and has been shown to persist even when the cost of doing so is explicit and doubled. Jiwoong Shin and Dan Ariely, “Keeping Doors Open: The Effect Of Unavailability On Incentives To Keep Options Viable,” 50(5) Mgmt. Sci. 575 (2004). Like the others, this framing effect has significant implications for jury trials. To what extent are jurors influenced by instructions to determine damages regardless of liability decisions? Conversely, to what extent does the threat of unavailability influence liability decisions, so as to keep damages award options open? How often do jurors ignore expert damages testimony simply because acceptance of it limits their options? Preference reversal can also arise from humans’ propensity to make simple rule-based decisions. Research has shown that individuals often do not engage in extensive cost-benefit analyses and instead resort to do-and-don’t rules in making decisions. These rules are typically binary, overgeneralized and culturally specific. When invoked, they are almost always followed by the decision-maker. Perhaps most important, rule-based decisions are usually invoked without the conscious effort or even awareness of the decision-maker. On Amir and Dan Ariely, “Decisions by Rules: The Case of Unwillingness to Pay for Beneficial Delays,” J. Marketing Res. (forthcoming). As a preference-reversal factor, rule-based decisions influence judgment when they are invoked, and do not influence judgment when they are not invoked. Studies have shown that when cookies are offered at a large discount, people purchase in high volume, but when the cookies are free almost no one will take more than one cookie. When money is involved, a money-related rule-based decision is invoked (e.g., take advantage of a good deal). When no money is involved, the money-related rule-based decision is not invoked and a different decision is made. Id. Once a rule-based decision is invoked, people follow it without serious consideration. However, the research has also shown that, if instructed to do so, people may subsequently override rule-based decisions. They are an initial reaction that can-if explicitly challenged-be overridden. Ellen J. Langer, “Minding Matters: The Consequences of Mindlessness-Mindfulness,” 22 Advances in Experimental Soc. Psychology, 137 (Academic Press 1989). One of the most important benefits of pretrial jury research is identifying rule-based decisions that are invoked with jurors in response to the fact pattern of a case. In our own research, we have found that these rules vary strongly by region of the country, by generations and by other major social groupings. Arbitrary judgments Another important vehicle for preference reversal is the human tendency to make arbitrary judgments of value. Research shows that people do not know how much to pay for anything and rely instead on their own arbitrary judgments to generate a value. A recent study showed people one of several products: a computer, a video game and a bottle of wine. The people were then offered the opportunity to buy the item at a price equal to the last two digits of their Social Security numbers. The research revealed that the price the subjects were willing to pay was driven largely by the random offer they had received only moments before: Those with high Social Security numbers systematically bid more than those with low ones-often up to 100% more. Dan Ariely, George F. Loewenstein and Drazen Prelec, “Tom Sawyer and the Construction of Value,” Federal Reserve Bank of Boston Working Paper No. 05-10 (July 2005). In our jury research, we find that award verdicts are strongly influenced by the first damages amount number raised in deliberations. This first number acts, arbitrarily, as an initial judgment of value. The implications are numerous. To what extent, for example, does the dividing of a damages prayer into subcomponents reduce a damages award because the first number mentioned- simply because it’s a subcomponent-is likely to be smaller? Conversely, when does an early large damages award request help the plaintiff because it sets a high arbitrary judgment of value? One may well wonder whether these preference reversals can be defused. Research findings suggest that they often cannot. In several of the experiments discussed here, subjects were later presented with the results and asked to go through the exercise again. In most cases, the results were nearly identical. Most people make these choices and behave this way because it works well for them to do so. For trial attorneys, the question is how to proceed. Does one continue to address jurors on the assumption that their decisions are always based on detailed, rational analysis? Or does one enact a preference reversal of one’s own and implement a strategy based on the expectation that jury decisions will be influenced by factors such as the framing effect, decision-making rules and arbitrary judgment of value? Paul H. Jepsen is a director in the Minneapolis office of the trial consulting firm DecisionQuest. He can be reached at [email protected] .

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