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Most attorneys understand the need to adapt their arguments to the jury, but few appreciate the size of the gap between their own experiences and attitudes and those of the people they need to persuade. Lawyers ignore this gap at their peril. Education and income levels are among the most obvious differences between lawyers and jurors. About 25 percent of Americans have a four-year college degree, while attorneys by definition have at least one advanced degree — a juris doctor — on top of a college education, and many have undertaken graduate study in other fields. Likewise, the median household income in the United States is about $43,000, less than half the median for lawyers. So just how much do differences in experience translate into differences in attitudes? As part of a continuing education course on jury decision-making, we put some of the same questions we regularly ask participants in our research projects (who are selected to be representative of prospective jurors) to a group of litigators at a large law firm. The questions aimed at two issues: a sense of entitlement and the tendency to believe in conspiracies. Here’s how the two groups compared on various statements: • “If a student tries hard in class and completes all of the required work to the best of his or her ability, that student deserves a passing grade, regardless of the quality of his or her work.” Of jurors, 54 percent agreed, compared with 21 percent of attorneys.

•�”Once a person gets a job in an organization, if the person performs well, the job should be guaranteed for life.” Fifty-five percent of jurors agreed, compared with 21 percent of attorneys. •�”John F. Kennedy was killed by an organized conspiracy rather than by a lone gunman.” Sixty percent of jurors agreed, compared with 22 percent of attorneys. The differences are pronounced, and they are consistent. Lawyers are much less likely than jurors to subscribe to conspiracy theories. And they are much less likely to believe people are entitled by virtue of effort or length of service to social or economic benefits. Of course, the point is not that lawyers should ask jurors whether Lee Harvey Oswald acted alone or whether dim-witted but hardworking students deserve a “gentleman’s C.” Few judges would allow such questions, and few jurors would answer them honestly in open court. Instead, the lesson is that jurors bring experience and attitudes to the jury room that are likely to shape how they view a case in ways that are often not intuitive. To take the most jarring example, our research suggests that one or more members of almost every jury will subscribe to a variety of conspiracy theories — the Air Force is concealing evidence that UFOs have visited Earth, drug companies are withholding a cure for AIDS so victims will have to keep paying for expensive treatments, and the like. With conspiracy-oriented jurors on a panel, allegations that a defendant corporation’s senior management knew about wrongdoing by midlevel employees may prove difficult to rebut effectively. In fact, during deliberations in mock trial exercises, we often see participants argue that top bosses ordered, deliberately ignored, or covered up misconduct in ways that were not argued or included in the evidence in the exercise. FAIRNESS, NOT RULES Although the willingness of many jurors to embrace conspiracy theories is among the most glaring differences between advocates and their audience, we see several other gaps with implications for how trial lawyers approach their work: Jurors are interested primarily in fairness. Lawyers want to win, and while they may believe their clients are in the right, they sometimes lose sight of the fact that for jurors, the trial is not a competition but a forum for trying to reach a fair result. For example, our research shows that many jurors in antitrust cases think large companies have an obligation to help smaller companies. For these jurors, the defense argument that the antitrust laws are designed to protect competition, not competitors, reinforces their belief that the playing field is slanted in favor of large corporations at the expense of the little guy. A defendant is better off arguing that its practices were not just legal, but fair. Jurors are not as tied to instructions or other rules. Attorneys spend a great deal of time and energy trying to persuade judges to adopt instructions of law or use verdict questions that frame issues in ways that are favorable to their clients. In our experience, however, it is not unusual for jurors to set aside instructions and verdict forms for most of their deliberations. Even jurors who read the instructions during deliberations often misunderstand or misuse them. Part of the problem is that jurors usually are more comfortable arguing about factual questions than about the application of legal principles. This is not because jurors want to ignore the law, but because they generally are not accustomed to debating the meaning of language, which is usually necessary to apply instructions of law with precision. To be sure, our observations of deliberations in mock trials show that some jurors will use language in instructions or verdict questions as tools to argue with their fellow jurors. No lawyer, however, should count on a nuanced instruction or artfully constructed verdict question to settle the debate in the jury room. Just as jurors are interested in fairness, they are results-oriented, so they tend to pick from among the jury instructions the ones that help to secure the result they want to reach. Jurors want the story to make sense. For lawyers, a trial is about proving or disproving facts that establish the legal elements of their case. Jurors, though, expect a coherent narrative that explains not only what legal duty was breached and by whom, but why events unfolded as they did. This is part of the appeal of conspiracy theories: They give jurors a way to explain gaps and inconsistencies in the record while providing motives that give a story narrative coherence. An exploration of the motives of the parties is important even if motive is not directly relevant to the legal questions to be resolved in the case. For lawyers, motives may be important to credibility or may figure into issues such as punitive damages, but they tend to get short shrift. If the parties fail to explain why important events in the case happened as they did, at least some of the jurors will try to write the rest of the story in the jury room. Jurors do not care as much about the case as the lawyers and their clients. By the time a case is presented to a jury, the attorneys on both sides generally have spent years immersed in the facts, the vast majority of which will never reach the jury. Even a lengthy trial will not expose the jury to the mass of evidence — and contextual information — that shape the way the lawyers see the case. In addition, even the most conscientious juror does not have as much at stake in a case as the parties or their lawyers. When attorneys present massive amounts of technical information without explaining how to test and apply it during jury deliberations, the attorneys should not be surprised when jurors ignore that evidence. WHAT JURORS THINK We do not mean to suggest that the views of attorneys and jurors always diverge. We found very close agreement on some kinds of value judgments. For example, to this statement: “A lumber company that spends millions of dollars for a piece of forest land has the right to cut down enough trees to protect its investment,” 36 percent of jurors and 35 percent of attorneys agreed. Conversely, 65 percent of jurors and 64 percent of attorneys agreed that the lumber company “should be limited by law in the number of trees it can cut down.” The good news is that by making a serious effort to understand how jurors think — and the range of opinion likely to be represented in any diverse group of people — trial lawyers can do a great deal to minimize the chances that they will talk past their audience. There are three basic ways to discover what jurors think: (1) Jury research conducted well before trial designed to test how attitudes and experiences shape views of the case. Every research project should include a background questionnaire that probes a wide range of opinions and attitudes. The questionnaire should be given before jurors hear any information about the dispute. By comparing the background questionnaire to jurors’ verdicts in mock deliberations after they have heard the evidence and arguments, the trial team can understand which factors are likely to be important and adapt accordingly. (2) Opinion research available from public sources. If the available time and money will not allow for jury research, public opinion research sometimes can provide valuable, albeit much less specific, insight. For example, the Pew Research Center maintains a large library of its survey results on its Internet site. One recent report provides a portrait of “Generation Next,” the 18- to 25-year-olds who will increasingly populate jury panels. (3) In some situations, lawyers will benefit simply by examining their assumptions carefully and thinking about how these assumptions look through the eyes of a juror. It often helps to talk to people from all walks of life — not just other lawyers — about some of the basic issues in the case and to try to present the issues to people from the perspective of the other side to evaluate how jurors might react. These steps are well worth the effort, because few attorneys grasp how much their assumptions diverge from many of the jurors they are trying to persuade. The failure to appreciate these differences is a serious mistake. After all, success in law school may depend on how well a student learns to think like a lawyer, but success in the courtroom has more to do with how well a lawyer has learned to think like a juror.

Charles Kauffman, Ph.D., and Casey Anderson, J.D., are litigation consultants at CapAnalysis in Washington, D.C. The firm provides economic, financial, regulatory, environmental, and litigation consulting services.

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