The Legal Intelligencer Blog

What Does It Mean to Have a Fair Trial?

By Melissa M. Gomez
Special to the Legal

In my career as a jury consultant, I have been confronted repeatedly with the concept of what it means to have a fair trial. The criminal child-molestation trial of Jerry Sandusky was quite a headline-maker for 2012 and I received calls from several newspapers and news stations alike to provide commentary from a jury perspective. Each reporter was concerned with the jurors’ connections to Penn State University, for whom Sandusky was the former assistant football coach. Each reporter asked about the implications of jurors’ Penn State connections and, considering those connections, whether it was possible Sandusky could have a fair trial. It all got me thinking about what it means to have a “fair” trial as a general concept.

Anais Nin wisely said, “We don’t see things as they are. We see things as we are.” So, if we consider the concept of fairness as having jurors who come in as blank slates upon whom the trial evidence is placed and weighed, then no one can have a fair trial. Ever. It is just not the way that people work. It is human nature that people will look at the evidence and arguments in any case through the spectacles of their own experience. Having experience or opinion with a particular subject matter will give that person a perspective before hearing any case facts, but does that mean that person can’t be fair? It depends on the relevance of that experience to the person, the strength of their opinion and how that opinion comports with the evidence that will be provided to them at trial. The question comes down to whether their experience outside of the courtroom will take priority over the evidence or will the evidence take priority over their experience, not whether we can eliminate that experience from their minds. In other words, it is not just the experience in and of itself that is relevant. It is the perspective about that experience and the strength of the beliefs that resulted from it.

Preconceived opinions in your jury pool can’t be eliminated completely, no matter how good you think you are at jury selection. Instead, you can hope to take out the people who are completely closed to your story through the voir dire process. What you have left are people who still may be skeptical. Is this fair? I can’t say that it is or is not, but it is the system we have and the issue applies to both sides. Admittedly, though, they often can be more troubling to one side over the other depending on the case and the venue.

As a result, it is imperative to understand, as much as possible, the mindset of the jurors and their community before you go to trial and be sure to tell a story that accounts for it. If your arguments are contrary to a widely held belief, you are unlikely to succeed. You must make sure that your strategy accounts for the people who are hearing it. Don’t expect them to change their perspectives for you and your case. They won’t.

Let’s go back to Sandusky’s case. Did a connection with Penn State automatically render jurors incapable of being fair and impartial? The judge didn’t think so, and neither do I. The issue here was really whether a juror, given his or her background and experience, regardless of whether or not he or she resides in or has connections to the Penn State community, was willing to listen to both sides and carefully consider the evidence. For the Sandusky trial, the jurors took two days to deliberate, requesting some of the trial testimony be read back to them. To me, that seems to pass for careful consideration of the evidence. As for the result, after having read the synopsis of trial testimony provided to me by one of the news stations, a couple hundred years behind bars for this particular fellow sounds pretty fair to me.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.

 

Why Haven’t I Gotten on the Online Jury Research Bandwagon?

By Melissa M. Gomez
Special to the Legal

It’s all the rage. It is pretty darn cool and it is much less expensive than the old, archaic way of doing things. Online mock trials. The technology now even has avatars that look like jurors sitting around a discussion table talking about your case. Really, how cool is that? There are myriad new and interesting ways to get juror feedback about your case and you don’t even have to leave the comforts of your office. Sorry to say, I am not yet convinced.

I am open to having my mind changed. Really, I am, but I haven’t heard anything yet that will make me think that conducting a mock trial with a group of people in different rooms and different houses and different towns is a good idea. I am uncomfortable relying on the feedback of people I can’t see, so I can’t be sure whether they are really there and paying attention or went to get a snack or are checking their email or playing Sudoku or letting their teenaged son take their place because they need to run to the grocery store. Call me old-fashioned.

So, let’s say we can get those identity things under control and there are ways to make sure that the person providing the feedback is there and paying attention and is the same person as the person who is supposed to be providing the feedback. Sorry, still not convinced.

There are two important aspects of communication. There is the central message of words being said, and then there is the peripheral message of everything that happens around the words. Is the person raising his or her voice? Has she crossed her arms and pushed back from the table? Is he watching the presentations intently or snoozing? How are people reacting to one another across the table in deliberations? The human dynamic is an enormous part of the courtroom – not only for witnesses and their communications but for jurors as well. While we do our best to capture a high-level idea of how humans react in a human way to a case, I think these important dynamics are truncated quite enough in the context of a traditional mock trial in which we present the case without live witnesses (usually) and in a much shorter period of time. It is one thing to ask someone to rate his or her anger toward a party on a scale from zero to 10 and quite another seeing how people speak with emotion (or not) about their feelings toward that party and the relevant experiences that impact those feelings.

So, I ask, what are we gaining from taking so much of the human element out of these exercises by conducting them online with a group of folks who haven’t met or seen each other? Will we really be able to understand how participants are really reacting? Why are we limiting the feedback they can give by only asking for what they can type? People tend to say more when they can talk through their thoughts and when they can tell a story as opposed to when they type. What happened to the ability for people to engage in a real debate in the same manner in which they will debate at trial?

Not every case and every client can afford a live mock trial or focus group, of course, but I believe that we have to take a close look at what is helpful and truly useful information from a reliable source and what is just marketing. While I risk losing some competitive edge in my industry by staying “old school,” I believe that, currently, online focus groups lose too much of what is real about people in the courtroom to be something I would use as a resource to make decisions about important cases. I am ready and willing to be convinced otherwise. It just hasn’t happened yet.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.

Understanding Juror Emotion: When Sympathy Can Backfire

By Melissa M. Gomez
Special to the Legal

In my experience with injury cases, I have seen an all-too-common error of plaintiffs counsel in jury trials. The error is an over-emphasis on sympathy in an effort to accelerate damages. I remember one such example of a horrible case involving the death of a child. For the first two days of trial, plaintiffs counsel put family member after family member on the stand, talking about the horrendous accident at issue in the case and its impact on the child’s family. By the end of those two days, everyone in the courtroom, especially the jurors, were emotionally drained. The problem for the plaintiff was that no one yet understood why this was the defendant’s fault. Sympathy for the plaintiff was high. The verdict was for the defense.

Sympathy is a natural emotion and a powerful one. The problem is that when sympathy is overplayed, jurors feel manipulated and they become angry at whoever is making them feel so terrible. Despite the defense mantra “beware of the crying juror,” I have seen jurors in mock trials weep at the case story and then become strong advocates for the defense. Unfortunately for defendants, there is not much to be done in a case like the one above to mitigate sympathy except to accept and join with it. Rather, remind jurors that the plaintiff’s burden is not to prove how horrible the injuries are, but to provide the proof that will cause those jurors to look at the defendant and be able to say: “You caused this.”

The power of the sympathetic aspect of the case is in the hands of the plaintiff and it is a dangerous power to control. There is a balance between presenting the full story of the plaintiff’s injuries and turning jurors off by playing too strongly on emotion. It is more powerful to pepper the damage information with liability witnesses so jurors make a real connection between what happened and who is to blame. Sympathy can be a great asset to a plaintiff’s case, but if it becomes the focus, it can harm your case, being perceived as a smokescreen for a weak liability story.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

 

Are You Looking Carefully Enough at Your Verdict Form?

By Melissa M. Gomez
Special to the Legal

In jury trials, semantics can be critical, especially on the verdict form. A question that can be interpreted in multiple ways, as many can, can very easily be misinterpreted to the detriment of your case.

Take, for example, a medical malpractice case involving facial plastic surgery. The plaintiff, a man in his 60s, had received a facelift from his plastic surgeon. While aesthetically, the results of the surgery were quite good, the plaintiff complained of facial pain, and there was no physiological reason for that pain that could be found. The plaintiff claimed that there was negligence in the manner in which the surgeon conducted the surgery, and also made a claim of failure to provide informed consent. He claimed that, if he had known that permanent pain was a risk of the surgery, he would not have had the procedure done.

In the end, the jury found that the doctor was not negligent regarding the manner in which he conducted the surgery. They did, though, find for the plaintiff on the issue of informed consent, which, for an elective procedure like plastic surgery, they felt as though a higher standard of informed consent should apply.

The tricky part of the verdict form for the defense came with the causation question. The question, as read on the verdict form, asked whether a “reasonable person” would have refused the surgery had more information been given. Interestingly, as we learned in post-trial interviews, jurors felt that the plaintiff would have had the surgery anyway, because, they felt, he was an unreasonable person in his quest for the fountain of youth. But that wasn’t the question. The question was about a “reasonable” person.

Therefore, this jury, comprised of one male and the rest female, put the standard of being “reasonable” on the male juror. That is, they decided that their male counterpart was a reasonable person and they asked if he would have had the surgery. His answer was no. He, a male in his 20s, personally would not. He simply found getting a facelift unreasonable, in general. Regardless, in the manner in which these jurors interpreted the question, the answer stuck and the verdict was for the plaintiff. When it came to damages, though, they only reimbursed plaintiff for the cost of the surgery.

I have seen several examples of cases in which verdicts are won or lost on the way the question on a verdict form is worded. Because they are in unfamiliar legal territory, jurors tend to look at the semantics of questions and interpret them quite literally. Therefore, it is critical to look closely at the wording on the verdict form. Where you can argue for needed change, argue for it. If you can’t, make sure you take the jurors through the verdict form in closings. Provide the road map to the issues to consider when answering each question. Without that road map, folks are more apt to get lost.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

 

Do Voir Dire Questions Inject Bias Into Your Jury?

By Melissa M. Gomez
Special to the Legal

There is a study that indicates the power of suggestion on perceptions. In this study, subjects are read a list of negative words (war, damage, harm, etc.) or positive words (rainbow, beach, play, etc.) and afterward they are asked to look at faces with neutral expressions and project emotions onto those faces. Not surprisingly, subjects who were read negative words before viewing the pictures ascribed negative emotions like sadness and anger to the neutral faces and the subjects who were read positive words ascribed more positive emotions like thoughtful or peaceful.

So, with all of that, what kinds of projections are we creating when we ask voir dire questions at trial or in a mock jury exercise? Are we tainting our jurors by asking them their perceptions of relevant issues before we give them a case story? Some folks believe that, based on research like the study cited above, we are. I disagree.

First of all, research, like the study cited above, is about influence on flash stimuli. A set of words and a flash of a face were the stimuli in the aforementioned example. Trials and mock jury exercises subject people to hours or days of information. The impact of the inundation of information throughout the trial will be vastly more powerful than any suggestion by a voir dire question.

Second, in the research cited above, the words provided were clearly biased toward one end of the emotional spectrum. Voir dire and pre-research questions are (or at least should be) balanced to find bias against both sides of the case, not just one. Both sides of the case get to ask questions, after all, and any good jury consultant knows in mock trials and focus groups to make sure pre-presentation questionnaires are written to be balanced.

There is an exception, though. Voir dire questions that suggest information that may or may not come into the trial can be harmful. It can put ideas in folks’ heads that they may not hear about as evidence. For example, if a plaintiff in a personal injury suit had a prior history of alcoholism and you are not sure whether that will come in or not, don’t ask about it. The question itself could become evidence. Hopefully, all of those issues will have been worked out before voir dire, but I have seen instances in which they are not.

There is a difference between putting new apples in the basket of jurors’ minds and simply looking to see what apples are already there. As we know, preconceptions influence perceptions. What people have learned in 20, 30 or 40 years of life will have more impact on their perception of a case story than anything we do or say. We do ourselves no service by failing to understand what preconceptions are out there and how they may influence perceptions of our case story, especially in jury research exercises. It is in those exercises that we can later analyze said preconceptions to see if there are any associations with verdict orientation—letting us know what information is the most important to gather in voir dire.

So, go ahead and ask the question both in voir dire and in your jury research. The answer may just be the difference between knowing who to strike and who to allow in the group of decision-makers.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Getting to Know You: Why Witness Preparation Should Start With the Basics

By Jocelyn Cinquino
Special to the Legal

All too often we are presented with the challenge of a difficult witness who seems intent on doing more damage than good for the case. It’s the corporate executive impatient with being on the receiving end of a question. It’s the medical professional personally offended by having his or her care criticized. It’s the person scared to the point of anger who doesn’t understand why he or she is involved in the case and is afraid of the outcome. So talk in trial prep goes along the lines of, “How can we make sure this person does the least damage to our case?” instead of, “How can we use them to support our case?”

But what if the witness is actually much different than he or she first lets on? It doesn’t happen all the time, but often enough that it’s worth the effort it takes to find out. Remembering to ask about the witness’ background before you get too far into the case claims can explain a lot of negative attitudes and behaviors.

A great example of this came from a recent medical malpractice case. Dr. X was deposed and even he admitted he had a bad attitude. He was less than cordial, acted too smart for his own good and was disinterested in the process – characteristics that only served to back the plaintiff’s assertion that he provided substandard care. It became questionable how he could support his own defense at trial. Good thing the team gave preparation with him one last try. He communicated so well on the stand that he ran out of business cards at the end of trial from jurors looking to schedule appointments.

So, how did he get there? From the team asking him all the right questions that didn’t have anything to do with what the case was about — or so it seemed. Turns out this doctor was extremely compassionate and as a result was so personally connected to his patients that he could not even begin to imagine being “accused” of doing his patients wrong. The claim made him sad and rather than appear hurt, he went in the opposite direction and made it appear he felt nothing.

Recognizing there had to be a reason for this behavior, the team took a few minutes to step back from the claims and ask him, “Why did you get into this area of specialization?” and “What’s special about your practice in particular?” Such basic questions allowed him to step outside the negativity of the case and reconnect to what made him feel positive about his practice and confident in his care. It also helped clue the trial team into how effective it would be to position themselves as part of the witness’ team in the effort to overcome the claim. This helped build enough rapport so that the witness could let go of anxiety, trust them when testifying and let his true personality become evident.

It’s also important to stay alert for any personal issues a witness might be experiencing that impact how he or she manages his or her testimony. Maybe he or she is going through a divorce, change in job or some other life event that starts to make its way into how he or she feels about the present case. It is OK if you can’t (and often times you shouldn’t) ask about such issues directly right off the bat. If they are important enough factors that they are clouding your witness’ ability to testify, he or she will drop hints for you along the way.

It can be uncomfortable and take some patience to start with these kinds of questions in prep rather than just jump into the reason why you are all there. But unless you do, you could miss out on something great in your witness and something valuable for your case.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at jocelyn@mmgjury.com or call 917-733-0770.

Yes, Jurors Do Care About Your Case … Eventually

By Melissa M. Gomez
Special to the Legal

We have all been there. We have prepared for years for a trial, labored for thousands of hours taking depositions, writing briefs, preparing witnesses and doing all of the other things we do to put our case together. Then, we finally get to the courtroom, ready to pick a set of jurors who are supposed to make the final decision about our clients’ dispute. The jurors arrive. Voices grumbling. Arms crossed. Scowls on faces. Minds searching for anything and everything they can say or do to get out of jury duty. These are the people who are making this decision that will so greatly impact your client? Yes, they are.

It is easy to be disheartened going through this process, especially for your client, for whom the case is very important — potentially life-altering. There is good news, though. While I will admit that many jurors are cynical coming into jury selection and are resistant to having their lives disrupted for weeks to deal with someone else’s problem (and who can blame them?), it is a rare juror who remains completely uninvested in the case after being selected and hearing the story.

Once jurors get over the hump and realize that they are in it to the end, they take their jobs seriously and truly care about making a right and fair decision — in injury and commercial matters alike. Across the hundreds of prior jurors I have interviewed, most have found the experience to be rewarding, understanding and enjoying the concept that their opinions count and will have a real impact on the lives of others. Jurors who have expressed frustration with the process rarely (in fact, I can’t think of one) cite their frustration as a matter of having to make a decision on something about which they did not care. Instead, frustration was typically because they cared strongly enough to become upset when the jury could not agree and they felt that true justice was not well served.

Therefore, I do advise attorneys to manage client expectations regarding what clients may see in jury selection in terms of juror crankiness. A simple discussion on this topic can help alleviate clients’ stress that comes from thinking the case will be decided by people who simply don’t care. It is important that neither we nor our clients have undue worry about such juror attitudes. They will take their jobs seriously once in the jury box.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

Do Jurors Pay Attention to What Lawyers Say?

By Bruce Merenstein
Special to the Legal

Most trial lawyers would consider their opening statement and closing argument two of the most important parts of a trial. The opening offers the lawyer his or her first chance to set out a case for the jury and lay the foundation for the story to be told throughout the trial. Thomas Mauet, in his “Fundamentals of Trial Techniques”, notes that “opening statements can and often do make the difference in the outcome of a case.” The closing argument is the lawyer’s last opportunity to reach the jury and convince it to see the facts his or her way. It also offers the lawyer the one chance during the trial to directly urge the jury to reach the result the lawyer has been working toward since the beginning of the case. Yet, Pennsylvania’s appellate courts regularly reject claims of trial error when lawyers make allegedly improper comments during opening statements or closing arguments, on the ground that what the lawyers say has little effect on the jury.

Consider a recent decision from the Pennsylvania Superior Court, Commonwealth v. Lewis. Erin Lewis was a probation officer who became involved in a relationship with one of the probationers she was supervising. When they took a trip together to Atlantic City, Lewis falsely noted in the probationer’s record that he was traveling to Atlantic City with family. After she left her job, the truth of her relationship and her trip to Atlantic City were discovered and she was charged with tampering with public records or information.

At trial, the prosecutor referred in his opening statement to the Luzerne County bribery scandal to — according to the Superior Court — “illustrate his point that there is no type of ‘minor’ public misconduct.” The trial court sustained Lewis’ objection to the comment but denied her request for a mistrial. On appeal, the Superior Court found no error in this ruling, holding that the comments “were not so prejudicial as to deny Appellant a fair trial.” In doing so, the court invoked a rationale that Pennsylvania appellate courts typically rely upon when rejecting claims regarding improper lawyer comments: the trial court had “instructed the jury that opening statements of counsel were not evidence and could not be the basis for a verdict.”

Of course, jurors are instructed in almost every case that statements of counsel are not evidence and cannot form the basis for their verdict. Yet, it seems the only point of such an instruction is to give appellate courts a basis to reject claims of improper statements by counsel, because, despite the instruction, lawyers clearly believe that jurors do rely on the statements of counsel to reach their verdict. If they did not, what would be the point of opening statements and closing arguments? And why would lawyers put so much emphasis on them?

Ultimately, the Superior Court concluded, the prosecutor’s remark simply had no effect on the jury: “any possible impact from the prosecutor’s remark was marginal.” Again, this raises the question: if this comment (like so many others that are improper, but found to have no effect on the jury) had no impact on the jury, why did the prosecutor say it? Presumably, he believed it would impact the jury’s verdict or else he would not have said it. Indeed, the precise point of his comment was to “impact” the jury’s verdict.

The Lewis scenario is repeated regularly in Pennsylvania’s courts, usually in criminal cases, but occasionally in civil cases as well. In the vast majority of these cases, the Pennsylvania appellate courts invoke the twin rationale above: the jury was instructed to ignore the lawyer’s comments and the comments had no impact on the jury. If this is true, lawyers are wasting a great deal of time preparing and giving opening statements and closing arguments. Of course, despite what the appellate courts tell us, jurors are listening to what the lawyers say, for better or worse.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing bmerenstein@schnader.com.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

When Are Jurors’ Sense of Fairness at Odds With the Law?

By Melissa M. Gomez
Special to the Legal

While presenting at a CLE seminar with a panel of litigators and judges about the psychology of jurors, I presented a piece of data I had collected over the years to the crowd. In my research, I have asked thousands of jurors to answer this question: In a trial, is it most important that the jury makes a decision that a) follows the rules set by the judge, or b) the jury believes is fair? While most of the lawyers on the panel were not surprised, some of the judges were no less than dismayed to see that 61 percent of the folks surveyed indicated it is more important that the jury makes a decision it believes fair.

A senior judge on the panel raised his hand and asked me a very legitimate question. “Well,” he said, “are they in conflict?” I pondered the question for a moment and responded, “That depends on who is making that decision.”

There are some cases in which the issue is really about the person listening to the evidence and his or her sense of justice. There are some folks who simply do not trust the system and so will not be compelled by what some man or woman in an official-looking robe tells them is right or wrong. Their life experiences and sense of justice will take precedent. This, needless to say, is an issue for jury selection.

Then, there is also the issue in which jurors simply aren’t properly educated on the law and the proper context around the case fact as they apply to that law. Without a deeper understanding of what it all means, fairness can be misinterpreted on its surface. For this issue, understanding how to properly educate without inundating is critical.

Then, there is the unfortunate reality that sometimes jurors do see the law and fairness to be in conflict simply because of what the case is. An example comes to mind in which an episode of molestation occurred between an EMT and a minor in the back of an ambulance. The EMT was in jail and the minor, through her family, was suing the ambulance company for failure to catch the abuse in time to prevent what was happening. The only legal issue, really, was whether the driver of the ambulance acted reasonably based on what he could perceive from the driver’s seat.

In our focus group, what we learned was that while the jurors did not see that the driver did anything wrong and felt sympathy for the position he was put in, they weren’t buying that the ambulance company lacked responsibility. The company hired a child molester. It didn’t matter what the law said. It didn’t matter that the perpetrator had neither a history of such behavior nor a criminal record. That company hired him and he molested a child. End of story. The case could not be settled and the team was forced to go to trial. Unfortunately, the real jury felt the exact same way.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

When Common Sense Isn't so Common

By Melissa M. Gomez
Special to the Legal

I hear it in real trials. I hear it in mock trials. Just about every one. What is it? It is the following statement: "Ladies and gentlemen, you just have to use your common sense to find (insert what you want the jurors to find here)."

But the fact of the matter is that common sense isn't always so common, and what you may consider common sense may not relate to the sensibilities of a particular juror.

While this can be true in any kind of case, I find it particularly true in complex commercial cases in which the issues make it difficult for jurors to make any sense of the case, let alone consider any of it common. I remember in particular some very complex contract litigation chock full of accounting principles and financial complexities. In mock trial deliberations, knee-deep in the information, jurors laughingly referred to a "common sense" comment made by one of the attorneys. While it may have been common to the attorney, it certainly wasn't to them.

The words you use and the insinuations you project through those words can have a profound impact on the way jurors view you and your case. Be careful about making such assumptions regarding what you feel someone should consider obvious or common sense.

The danger is this: If you are telling a juror to use his common sense to agree with you, and he sees things differently, you not only have someone who may not see things as you do, but you just alienated that person. The end result is that you may have created a stronger adversary than otherwise. You have insulted his common sense for disagreeing with your position, after all.

It all makes common sense, doesn't it?

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. If you have questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.