Monday, September 27, 2021

Resources: Jury Selection and Unconscious Bias

 

Two valuable resources are available for identifying unconscious juror bias and talking to jurors about it in civil cases. First, the United States District Court for the Western District of Washington created a video about unconscious bias that is shown to prospective jurors as part of their orientation. The video features John C. Coughenour, United States District Judge, and attorneys Jeffery Robinson and Annette Hayes. Other courts have adopted the video as part of their orientations process for prospective jurors. This is the United States District Court for the Western District of Washington video

Second, Judge Theresa Doyle (Ret.) article entitled “How to Talk to Jurors in Civil Cases About Implicit Bias” is a fine companion piece of the video. In her article, Doyle explores how to discuss unconscious bias with prospective jurors and offers voir dire questions designed to get the prospective jurors to reveal their beliefs. Indeed, she suggests beginning the questioning by asking for their reaction to the orientation video. Doyle was a King County Superior Court Judge and has been Assistant Chief Criminal Judge, and has served on Unified Family Court, Drug Court and on the civil and criminal trial calendars. Prior to taking the bench she a trial attorney at the Defender Association (TDA), and an associate at Riddell, Williams, Bullitt & Walkinshaw.

The following is Judge Theresa Doyle’s (Ret.) article.

How to Talk to Jurors in Civil Cases About Implicit Bias

Say you’re getting ready for trial and your client is a person of color. You have this vague concern that because of racial bias, the jury might not find your client credible or treat your client fairly. But you’re at a loss as to what to do. 

Implicit Bias

You are right to be concerned. White juries in criminal trials are more likely to convict Black and Latinx defendants than white defendants on similar facts.   There is little reason to think that white juries in civil trials are any less biased toward plaintiffs or defendants of color.   That’s because racial bias in society is pervasive, largely unconscious, and widely held across all demographics.   Results of the Implicit Association Test (IAT)  taken by millions of people show that 75 percent of test-takers have a pro-white bias.   Even among Black test-takers, 40 percent show some pro-white bias.  Jurors bring these biases to court when they report for jury service.

Juror Orientation Video

So, how do you go about addressing race effectively in voir dire without unnecessarily alienating jurors or putting your foot in your mouth? Well, if your trial is in King County or Pierce County Superior Court, the groundwork has already been laid for you. Jurors in those counties will already have watched a juror orientation video about implicit bias prior to even being assigned to your trial, whether it’s by Zoom or in-person. 

In 2016 or thereabouts, a group of smart and forward-thinking King County judges imported from the United States District Court for the Western District of Washington a great instructional video for jurors about unconscious bias: 

https://www.wawd.uscourts.gov/jury/unconscious-bias

 Featuring Jeff Robinson, Judge John Coughenour and others, the video describes visually and in plain language the results of social science research into our unconscious biases based on race, gender, sexual orientation, national origin, and other immutable characteristics. Explained is how such automatic preferences and biases can influence our perceptions and decisions. Judges in King County adopted this revised version of the federal court video, substituting some of our own judges and otherwise improving it, in our view. 

Targeted Voir Dire

So, back to your trial. Your jurors have watched the implicit bias video so are primed on the subject. My advice is, don’t drop the ball. 

Heed this cautionary tale:  I had a trial with a Black defendant, so before the jury panel arrived in the courtroom, I reminded the lawyers about the juror orientation video and asked if either of them planned to address racial bias in voir dire. Blank stares. Then, toward the close of the voir dire, one of attorneys posed a common but perilous question: was there was anything jurors wished he had asked them but didn’t? 

Several jurors piped up in response, the first pondering whether our Black defendant could get a fair trial because there were no Black people on the venire and “what with implicit racial bias we learned about in the video and all.” Other jurors then volunteered comments about the pervasiveness of racial bias and the problem of mostly white jury pools. The poor lawyer who had asked the open-ended question had no follow-up except, “thank you for your comments.”  

You don’t have to be that lawyer. You’ve already shown the good sense to read this article.

To backtrack; why does it matter? Addressing implicit bias in jury selection is important because research shows racial bias is most likely to influence the verdict when race plays no active role in the case.  Like in a garden variety motor vehicle accident case where one party is white and the other is Black, as contrasted with a race discrimination employment case where race is central in the trial. Counterintuitive? Not really. When race is an obvious issue at trial, jurors may be 

on guard against racial bias. However, in trials without salient racial issues, jurors may be less likely to monitor their behavior for signs of prejudice, and therefore more likely to render judgments tainted by racial bias.

In other words, it’s the unconscious nature of implicit bias that’s the problem. Hence, social scientists and academics recommend that attorneys “make race salient.”  Tackle racial bias up front, in jury selection, lest it come back to bite you in the verdict.

If opposing counsel objects with, “this is not a race case,” cite the authorities in this article and in the video. You shouldn’t have any problem in a Washington court. Our judges are well-versed in the topic from the numerous judicial trainings at conferences over the past decade. If necessary, remind the judge and opposing counsel that the very purpose of voir dire is to uncover bias to use cause and peremptory challenges effectively.

Sample Questions

Best are open-ended questions that probe thought processes and values. You want to spark conversation; “to get jurors to reveal their true beliefs,” Jeff Robinson says. 

Try, “what did you think of the implicit bias video?” Or play devil’s advocate and ask whether implicit bias really exists; or “don’t we pay too much attention to race?”

Ask what the Confederate flag symbolizes; what’s the big deal about monuments to the Confederacy?

What is “critical race theory” and why are people so exercised about it?

If your client is Black, ask jurors their thoughts about systemic racism; does it exist? 

If your client is a recent immigrant or not a native English speaker, probe attitudes about immigration? Do immigrants contribute more in taxes than they receive in government benefits, or vice versa?

If your client is an Asian-American woman, bring up the recent violence against them and ask jurors for their thoughts.

Ask jurors to name the usual stereotypes about the race/gender/national origin/sexual orientation of persons like your client. 

Ask about the regularity of social interactions with persons of other races at work, school, in their neighborhood.

Consider these sample questions inspired by lawyer trainings given by Jeff Robinson:

What does it mean to “play the race card?”

Have you ever witnessed expressions of racial bias, and how did that make you feel?

What would you do if a fellow juror, during deliberations, were to make a racial slur? Would it matter if the slur was about your client? 

 If you were a party to a lawsuit and upon entering the courtroom discovered that you were the only [insert your client’s race] there, what would 

be your thoughts, concerns?

  The Bottom Line

You can have an intelligent and fruitful conversation with jurors about implicit bias without alienating them or feeling like an idiot. It’s worth the 

effort, because unconscious bias and stereotypes that lurk below the surface can pose a substantial risk to your client’s case. 

“The fact is that every single person in that courtroom has racist thoughts. It’s not a white or Black issue; it’s an American issue,” says Jeff Robinson.

  1. Jerry Kang, Judge Mark Bennett, et al., “Implicit Bias in the Courtroom,” 59 UCLA L. Rev. 1124, 1142-43 (2012), https://www.uclalawreview.org/pdf/59-5-1.pdf
 2.  Id. at 1164.
  3. Kristin A. Lane, et al., “Implicit Social Cognition and the Law,” 3 Ann. Rev. L. & Soc. Sci. 427 (2007),  https://www.researchgate.net/publication/228189909 
  4. The race IAT is a test designed by social scientists to measure implicit attitudes and prejudices by having test-takers respond quickly to images of whites and blacks, then recording reaction time.  See id., 59 UCLA L. Rev. 1124. The IAT can be found here: https://implicit.harvard.edu/implicit/takeatest.html
  5. Cynthia Lee, “Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society,” 91 N.C. L. Rev. 101, 117–18 (2013), https://aasa.org/uploadedfiles/Making-Race-Salient-CynthiaLee.pdf
  6. Id


Tuesday, September 7, 2021

Why Jurors Get Distracted By “Irrelevant” Issues





By Thomas M. O’Toole, Ph.D and Kevin Boully, Ph.D.

Does the color of my tie matter? Are there too many attorneys at our table in the courtroom? Does it matter that I am not a local attorney? These are the kinds of questions that come up constantly in our discussion with clients, referring to the innumerable peripheral factors attorneys have blamed for confusing or surprising verdicts. While it is perfectly sensible for attorneys to consider all the factors that might influence a verdict, it is risky to go down the rabbit hole of concerns about all the odd, peripheral factors that might influence the jury’s verdict. Instead, it is better to understand why these “irrelevant” factors become relevant. Attorneys will never be able to predict all the distractions that can turn a case sideways, but they have extraordinary control over whether or not jurors are susceptible to such distractions. 

         Setting aside extraordinary situations, if the attorney is doing his or her job, these issues rarely matter to jurors. To understand why, we turn to one of the oldest and most fundamental theories of persuasion, called the Elaboration Likelihood Model (ELM). ELM, developed by Richard Petty and John Cacioppo, suggests that individuals process messages through one of two cognitive routes: central or peripheral. The central route refers to a process by which the juror actually engages the substance of the message and evaluates its substantive merit and qualities. The peripheral route refers to a process in which the juror relies on peripheral cues to evaluate the message instead of engaging the substance of the message. For example, if I choose to smoke cigarettes as a result of evaluating the advantages and disadvantages of smoking, I have used the central processing route to render that decision. If I choose to smoke cigarettes because my favorite rock star smokes cigarettes and I believe I can be “just as cool” as that rock star if I smoke, I have used the peripheral processing route. 

Researchers believe the route through which a message is processed is largely determined by two key factors: the juror’s motivation to process the message and the juror’s ability to process the message. If jurors have both the motivation and ability to process the message, it will be processed through the central route, meaning they will think carefully through the main arguments and evidence in the case. If jurors lack either the motivation or the ability to process the message, they will process it through the peripheral route, meaning they are more likely to get caught up on supposedly “irrelevant” factors.

Why does this happen? Some suggest that we are all cognitive misers, desperately looking for the most efficient way to make sense of information that is presented to us. Nobel Prize-winning psychologist Daniel Kahneman has a great quote that we have used in past columns. Kahneman says, “when faced with a difficult question, we often answer an easier one instead, usually without noticing the difference.” In his popular book, Thinking Fast and Slow, Kahneman goes on to cite research findings that reinforce the inherent tendency of our brains to take shortcuts in the face of complex information. It is a fundamentally human tendency of decision making.  

Applying this to a litigation setting, peripheral factors such as fashion choice and the geographical residency of the attorney potentially only become important when the presentation of the case fails to motivate or is too complex for jurors to understand. It is in these situations that jurors seek out shortcuts for deciding the case. In other words, the route jurors take to evaluate the case is partially in the hands of the persuading attorneys. For example, in a medical malpractice case where the medicine is complicated, it is much easier for me to look at the doctor and decide whether or not I like him or her than it is for me to try to understand the complicated medicine – unless the medicine is made easy. If I am the defense attorney and do not want jurors to decide the case based on the likability of my client, I need to find a way to make the medicine more understandable to jurors. I need to make it as easy as possible for them by teaching it through ideas and concepts they already know and understand, which substantially increases the likelihood of them embracing my case theory. 

In the language of jury economics, jurors make economic decisions – weighing the costs and benefits of a more effortful analysis against those of the available shortcuts. Attorneys tasked with persuading are more than mere observers. They have the power and ability to anticipate and adapt to jurors likely route to processing information.  A few more examples can help to further illustrate how the jury economics model incorporates the tenets of the Elaboration Likelihood Model.  

The second and third pillars of jury economics are that jurors tend to make egocentric and symbolic decisions. Egocentrism means jurors relate their personal experiences, biases, and feelings about the issues to the case-at-hand and bring those egocentric factors to bear on the task of making decisions. Attorneys know this. Attorneys have the opportunity trigger a more effortful, central route to persuasion by using jurors’ experiences and egocentric biases as a reason to support their preferred decision (i.e. a motivation), and using familiar concepts to reduce complexity and increase jurors’ understanding (i.e. ability). In a case such as the medical malpractice defense example above, this could mean motivating jurors by aligning with a familiar principle to protect, such as the value of rewarding those who take care of other people, and teaching complex medical concepts via familiar ideas (e.g. coronary artery disease is a clogged pipe; medications are drain cleaners, etc.). Attorneys can leverage symbolic representations of these principles, such as the image of a doctor sitting at a patient’s bedside in the middle of the night, or a powerful demonstrative of a clotted artery being unclogged by a miracle medication, to support their central route to persuasion.  

Attorneys may also want to encourage a shortcut route to their preferred decision in the same case by using the same pillars – jurors’ egocentric and symbolic decision making. Presenting the case by triggering a concern for jurors’ own safety or that of their loved ones (a la the Reptile Theory) can serve as a shortcut for jurors to consider “irrelevant” factors that could still motivate an egocentric decision. Again, attorneys can leverage symbolism to support a more superficial decision as well – the lasting image of a frustrated doctor losing his temper in a deposition, or a parent in despair holding the hand of an injured child. These, and far less dramatic symbols of larger and more meaningful ideas, are often available and rarely leveraged in even the most banal civil litigations.  

So, do your fashion choices matter?  Do jurors care how many states you flew over to get here? The short answer, supported by both the Elaboration Likelihood Model and explained through jury economics, is: they can if you let them.  

First Published in King County Bar Bulletin, September 2021


Thursday, May 20, 2021

Webinar Conversation about Litigation Visuals



Fastcase just hosted a webinar during which my co-author, Pat Muscat, and I discuss our Visual Litigation book. Our conversation focused on the THREE Ws:

1. WHY use visuals to persuade in pretrial and trial? 
2. WHEN can you use visuals? When should you use visuals in pretrial and phases of trial? When shouldn’t you use them?
3. WHAT hardware and software can you employ to store, retrieve and display visual?

The webinar was well attended and you can watch a video of the webinar by clicking here.

Sunday, May 9, 2021

Roadways to Justice Book

 

My new book Roadways to Justice: Reforming the Criminal Justice System was just published and is available now on Amazon. America’s criminal justice system is grappling with multiple issues – police officer-involved deaths and violence; mass incarceration; racial, gender, and sexual orientation bias; the death penalty; public corruption; juvenile justice; disparate sentencing; and the ill effects of Three Strikes laws. These and other issues are examined through the lens of my experience as both a career prosecutor and educator of prosecutors. 

 Roadways to Justice tells remarkable stories of selected cases, trials, and, above all else, quests for justice. The book argues that the criminal justice system can be changed, and it offers inspiration, practical solutions, and roadmaps for how to reform that system. This volume is ideal for anyone interested in understanding how the criminal justice system really works, and it is an indispensable handbook for the new wave of lawyers, lawmakers, and others who want to improve it. 


Sunday, March 14, 2021

6 FAVORITE BOOKS ON TRIAL ADVOCACY

 

What follows is a list of six of my favorite books on trial advocacy. These books are not strangers to this blog that concentrates on the art and science of advocacy because I have blogged about most of them before. Below you will find the six favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to the full articles should you wish to visit them. 

#1—McElhaney’s Trial Notebook by James W. McElhaney

I treasure my autographed copy of McElhaney’s Trial Notebook. For decades McElhaney, the trial lawyer’s sage, wrote a lead articles for the ABA Journal. In his Trial Notebook, he covers everything from trial preparation through final argument. My favorite part of this favorite book is about Tactics in which you can find chapters on traps, how to deal with dirty tricks, ploys, stock phrases to employ as well as ones to avoid (in opening—“Nothing I say is evidence”), picking the right words, getting along with judges and keeping the client happy. 



I’m a firm believer that you can become your best by appropriating skills, strategies, concepts and words from skilled trial lawyers. As Picasso said, ““Good artists copy, great artists steal.” When you set out to craft your opening statement or closing argument, it is always helpful to refer to outstanding opening statements and closing arguments from the past, and In the Interest of Justice provides them.

Seidemann’s book contains excerpts from transcripts that meet Mr. Sideman’s two prerequisites. First, the selected cases are very high profile, including, among others, the trials of: O. J. Simpson; Marv Albert; Sean Puff Daddy Combs; Adolf Eichmann; Martha Stewart; John Scopes; Amadou Diallo; Timothy McVeigh. Second, the advocacy in these cases also satisfies the excellence test, with the lawyers demonstrating how to effectively use these devices: storytelling; analogies; phrasing; humor; pathos; logic; themes and so much more.


#3—Redeeming the Dream by David Boies and Theodore Olson

In their book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, David Boies and Theodore Olson take the reader inside the trial of their case challenging California’s Proposition 8. The book explores everything from preparing the complaint through closing argument and then the appeal to the United States Supreme Court. The book informs the reader about how highly skilled trial lawyers prepare for trial and perform in trial. It also covers the stress, fears and elation that trial lawyers and clients experience in a high-profile case. 

Redeeming the Dream returns again and again to the importance of themes. The development of a case themes and utilizing them in trial is at the core of excellent trial advocacy, For instance, when Ted Olson delivered the opening statement at trial, he led with the case theme: “This case is about marriage and equality. Plaintiffs are being denied the right to marry and equality under the law.”



A winning closing argument is often the product of learning from the best of the best trial lawyers, whether it is a how-to technique for delivery or some content for closing. A valuable resource, particularly for prosecutors, is Vincent Bugliosi’s book about the O. J. Simpson case, entitled Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder. Bugliosi was hands down one of the best trial lawyers in America. 

Why is the book so valuable a guide for shaping a closing argument? First, it is packed with illustrative arguments that can with some modification be adopted by trial lawyers to their cases. When Bugliosi’s book editor asked him to write out the closing he would have given if he had prosecuted Simpson, Bugliosi declined, saying that it would be unrealistic because he normally put three to four hundred hours into prepping his own closings and for that case the closing would have filled a thousand pages of transcript. Instead, he wrote out some of his arguments, which are in bold type. Bugliosi’s “Final Summation” chapter is jammed with arguments and runs a hundred pages.

A second reason that his closing argument chapter is so valuable is because it is filled with gems – arguments that have been cut and polished to perfection. It is apparent that Bugliosi did what all good trial lawyers do; he took many of his arguments that he had crafted and delivered in his over a hundred trials (including 21 murder convictions) and adjusted them to fit the Simpson case. They are tried and true arguments.   


#6—Trial Advocacy: Planning, Analysis, and Strategy 4th Edition by Marilyn Berger, John Mitchell and Ronald Clark

Naturally, my book Trial Advocacy: Planning, Analysis, and Strategy is included in the list of my six favorite books. The book is divided into 14 chapters with each chapter covering a separate subject—persuasion, jury selection, opening statement, objections and so on. Each chapter presents a theoretical and practical approach to the particular skill, provides illustrations of practice, and offers practical pointers and checklists.

Accompanying the book are Assignments which take the law student or lawyer through the trial process in the context of criminal and civil cases, both of which arise from a tavern shooting after which the victim dies. 

The book has a companion website aspenadvocacybooks.com that holds demonstration movies. Case files, Actors Guide, and a Teacher’s Manual for mock trials and experiential exercises for either professional development CLEs or law school classes are also on the website. 



Friday, February 5, 2021

Court Embraces Remote Jury Selection

 It is doubtful that once the virus isolation ends that jury selection will ever be the same. King County Superior Court - Seattle, Washington - has been conducting jury selection via Zoom. The Court's website provides clear instructions for prospective jurors. Here is what those prospective jurors will find on the Court's website.







Friday, January 29, 2021

Remote Jury Selection

 

Rayvid's Jury Selection Platform Under Construction

Online jury selection looks like it is here to stay. During the pandemic, jury trials have been conducted remotely via Zoom. In King County, Washington, the Superior Court began with bench trials over Zoom and by the beginning of 2021 had conducted 100 of them. Then, the court started holding virtual civil jury trials. For all of these trials, the jurors remained at home and the other participants were either all or partially remote. Washington federal courts also began remote trials.

Not only is the court system evolving to accommodate conducting remote jury trials but also industry is adapting and evolving. A leader in this endeavor is Rayvid. Rayvid’s website explains:
 “Rayvid was founded at the start of the pandemic by former business and technical leaders from Amazon, Expedia and Google because we believe that the right technology can create a more equitable, efficient and accessible legal system.

“More people in the world now have access to the internet than to justice. This has been exacerbated by social distancing and quarantine but the underlying opportunity for justice to be more democratic will not disappear with a vaccine.”

Working with King County Superior Court, Rayvid has been constructing a jury selection platform. I watched an early mock jury selection using Rayvid. My Seattle University Law School students served as prospective jurors and veteran trial lawyers conducted voir dire with a King County Superior Court Judge presiding. All of the participants in the jury selection exercise were either at home or in an office. Rayvid has built its site specifically for jury selection. To view a video of the platform click here.

Remote jury selection has obvious benefits for both the court and the prospective jurors. Above all else it saves time and money. Jurors no longer need lose time at work to traipse downtown, park, and go to the courthouse where they sit for hours waiting to be sent out to a courtroom where they may never serve because they were excused during the jury selection process. It can involve more citizens in the jury selection process. As Rayvid points out, in Los Angeles county, 90 percent ignore their jury summons.

Thomas O’Toole, my co-author of Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, along with Kevin Boully discussed remote trials in an article entitled “The Impact of Remote Trials on Jury Decision Making” (King Count Bar Bulletin January 2021). They wrote, “Zoom fundamentally changes the nature of the interaction between attorneys and jurors, making it much more difficult to build rapport.” Making a personal connection through a computer screen is just one aspect of remote jury selection that trial lawyers will need to adjust to. As the article points out, lawyers who are accustomed to moving around a courtroom and dramatically gesturing will have to consider how to adapt so as to be effective when they are viewed on a screen. While these and other differences from in-person jury selection are important for effective trial advocacy, the benefits of remote jury selection seem to outweigh them. 

When normalcy returns and trials return to the courtroom, it is hard to believe that the jury selection process will return to what it was. Remote jury selection saves both the court and prospective jurors time and money.