Prior jury service. In this study, 25.4 percent previously served on a jury (19.8 percent on a civil jury and 10.4 percent on a criminal jury). More Caucasians served on civil and criminal juries than did Hispanics and Asians. Language barriers sometimes preclude panel members from making it onto the jury. In validating the mock jury sample, this approximates the 27 percent that the DRI study reports for its study. Langer Research Assocs., The DRI National Poll on the Civil Justice System (2012).
Race and gender bias in the decedent, Alex Smith. When asked “What race did you picture the decedent Alex Smith?” this study showed implicit bias. Most thought the decedent was either African American or Caucasian (Chart 9a). Blacks more frequently pictured the decedent as African American. Caucasians more frequently pictured the decedent as Caucasian. Most of the sample (89 percent) thought Alex was a male. Chart 9b shows that those who pictured Alex to be a female more often were female. Asians more frequently than blacks indicated the decedent was a female. Images of race and gender appear in one’s mind. The surname “Smith” is likely associated with African American or Caucasian surnames. The first name “Alex” is more likely associated with males.
Race and gender bias in the police officer. Who is the police officer? When asked “What race did you picture the police officer?” 81 percent answered Caucasian. When asked “What gender did you picture the police officer?” 91 percent answered male.
Attorney Persuasiveness
The Hispanic male is most persuasive for the plaintiff Smith family. Looking within each race/gender scenario (Table 3), what is remarkable is that Survey 8, the Hispanic male lawyer scenario, produced the highest number of plaintiff-oriented jurors, even though the Hispanic male lawyer was the least preferred in the lawyer preference rating. (Table 2 illustrated preferences for hiring a lawyer before the mock jurors read the scenario.) Let’s look at why.
Table 3. Who Should Win This Case
Lawyer
|
Plaintiff-Oriented Jurors
|
Defendant-Oriented Jurors
|
TOTAL
|
Survey #1 – Asian Female
|
36 (60%)
|
24 (40%)
|
60
|
Survey #2 – Asian Male
|
29 (54%)
|
25 (46%)
|
54
|
Survey #3 – Black Female
|
28 (47%)
|
32 (53%)
|
60
|
Survey #4 – Black Male
|
34 (61%)
|
22 (39%)
|
56
|
Survey #5 – Caucasian Female
|
29 (48%)
|
31 (52%)
|
60
|
Survey #6 – Caucasian Male
|
30 (53%)
|
27 (47%)
|
57
|
Survey #7 – Hispanic Female
|
28 (49%)
|
29 (51%)
|
57
|
Survey #8 – Hispanic Male
|
41 (73%)
|
15 (27%)
|
56
|
Total
|
255
|
205
|
460
|
Attribution theory—luck or hard work? In social psychology, attribution is the process by which individuals explain the causes of behavior and events. Professor Bernard Weiner’s attribution theory is mainly about achievement. Weiner’s most important factors affecting attributions are ability, effort, task difficulty, and luck. B. Weiner, “An Attributional Theory of Achievement Motivation and Emotion,” 92 Psychol. Rev. 548–73 (1985). In regard to becoming a lawyer, one expects that it is a difficult task and takes effort. This study directly measured two factors, luck and hard work. Subsequent ratings measured lawyers’ perceived skills and traits.
Did LUCK have anything to do with the Smith Family’s “ASIAN FEMALE” lawyer becoming a successful trial lawyer?
Did HARD WORK have anything to do with the Smith Family’s “ASIAN FEMALE” lawyer becoming a successful trial lawyer?
Did LUCK have anything to do with the City of Metropolis’ “ASIAN FEMALE” lawyer becoming a successful trial lawyer?
Did HARD WORK have anything to do with the City of Metropolis’ “ASIAN FEMALE” lawyer becoming a successful trial lawyer?
Did LUCK have anything to do with the lawyer becoming a successful trial lawyer? Chart 12a is the LUCK breakdown for each of the 8 surveys.
27.4 percent said “yes” for the Smith attorney.
25.2 percent said “yes” for the City of Metropolis attorney.
Did HARD WORK have anything to do with the lawyer becoming a successful trial lawyer? Chart 12b is the HARD WORK breakdown for each of the 8 surveys.
86.7 percent said “yes” for the Smith attorney.
79.3 percent said “yes” for the City of Metropolis attorney.
The “Black Female” Smith family lawyer was highest on luck. The “Hispanic Female” and the “Hispanic Male” City of Metropolis lawyer scored lowest on luck. The “Asian Female” Smith family lawyer was deemed to work the hardest, and the “Caucasian Male” City of Metropolis scored lowest on hard work being a factor.
Attorney Skills and Ratings
After deciding who should win the case, the mock jurors rated lawyers on skills and traits. For example, “How skilled is the Asian female lawyer for the Smith family?” The traits also included the following: Open-minded, Ethical, Intelligent, Honest, Experienced, Persuasive, Trustworthy, and Credible. A “4” is a neutral point and a “7” is the highest score on the trait. The higher the score, the more they deemed the lawyer possessed that skill or trait.
Plaintiff attorney ratings. Chart 13a shows the means for each group rating the Smith family lawyer. Mock jurors’ ratings of lawyers indicated statistically significant differences in perceptions on “intelligence” and “honest” based on the race / gender of the lawyer.
Intelligence: The Caucasian male lawyer representing the Smith family rated lower than other groups. The black male lawyer and the Hispanic male lawyer are rated slightly higher than other groups.
Honest: The black female lawyer rated slightly higher than other groups, while the Caucasian male lawyer rated lowest.
Other differences to note were in Experienced, Persuasive, and Credible. The Hispanic female rated highest on Experienced. The Asian female rated highest on Persuasive. The Hispanic male was highest on Trustworthy. The Asian male rated highest on Credible.
Defense attorney ratings. Chart 13b shows the means for each group rating the City of Metropolis lawyer. Mock jurors’ ratings of lawyers indicated statistically significant differences in perceptions of “Open-minded” and “Experienced” based on the race / gender of the lawyer.
Open-minded: The black male lawyer rated highest and the Caucasian male rated lowest. One factor could be their unconscious bias toward the decedent and the race they attributed to the decedent.
Experienced: The Asian male rated highest and the Caucasian male rated lowest.
A trend in Ethical reveals the black female highest and the Caucasian male lowest on this trait. The Asian male rated highest on Skilled and on Credible. The black female rated highest on Ethical, Intelligent, and Persuasive. The Hispanic female rated highest on Honest. The black male rated highest on Trustworthy.
What We Learned from This Study
- Most consumers prefer to hire a lawyer from their own race, except that some Asians may prefer Caucasian males as their lawyer.
- Case issues are more determinative of verdict than trial lawyers’ race and gender. In the scenario, issues determined verdict (e.g., accountability in the system is broken, shooting was intentional, police always lie, police officer feared “own life” was in danger, and the homeless person had a gun). Mock jurors’ race and gender did not determine verdict.
- Asians and Caucasians are more likely than blacks and Hispanics to believe that people look for opportunities to sue corporations and cities.
- Defense-oriented jurors are more skeptical and less likely to believe gossip columns, television news, or lawyers.
- Experience with being sued does not predict that jurors will favor a defendant in a case. More plaintiff-oriented jurors than defense-oriented jurors had sued someone or had been sued.
- Surnames influence presumed race.
- Caucasian male is the presumed race and gender of an imagined police officer.
- Caucasians are rated highest in preferred lawyer and lowest on perceived skills and attributes. This is a contrast effect that needs further discussion.
- The Hispanic male lawyer produced the most plaintiff-oriented jurors in this scenario, yet was the lowest on the preferred lawyer rating. This is another contrast effect.
Implicit Association Tests. Professors Banaji and Greenwald, developers of the Implicit Association Tests, find that people discriminate against their own groups. M.R. Banaji & A.G. Greenwald, Blindspot: Hidden Biases of Good People (Delacorte Press 2013). It is often surprising to individuals to find that they have an inherent bias against their own race or gender. Implicit bias has to do with unconscious choices. In the Asian culture, there remains a bias favoring males. In hiring an attorney, the choice is more explicit. Most of the time, individuals prefer to hire someone similar to themselves.
Lawyer image. Many jurors obtain their knowledge of lawyers from television and the Internet. The public is addicted to watching real trials such as criminal prosecutions against Casey Anthony, Jodi Arias, Michael Jackson, Conrad Murray, O.J. Simpson, or George Zimmerman. Popular also is a depiction of lawyers in television series à la Law and Order, Suits, The Good Wife, and the O.J. Simpson Mini-Series. John Grisham’s or Charles Rosenberg’s popular crime novels show up on the laps of jurors waiting to be called into the courtroom. Whether television drama accurately portrays the courtroom procedures, this depiction becomes part of the jurors’ knowledge base. Jurors’ perspectives about the legal process, whether they are accurate or not, affect trials.
Series like Boston Legal and Ally McBeal improve public trust in real lawyers. Extreme characters, such as William Shatner’s Denny Crane or Calista Flockhart’s Ally McBeal, create a contrast effect when compared with a real lawyer. Cynthia R. Cohen, “Media Effects from Television Shows—Reality or Myth?,” in Lawyers in Your Living Room: Law on Television (M. Asimow ed., ABA 2009). Ally McBeal’s character boosted competence perceptions in women lawyers in the 1990s, just as male lawyers receive a boost in perceived trust when compared with Denny Crane. That is, when jurors compare the real lawyer with a television character, evaluation of your image and performance is boosted. Hopefully, that contrast effect works for trial consultants when compared with Dr. Bull.
More women are trial lawyers today than in generations past, although the numbers are still lagging for first chairs at trial. S. Scharf & R.D. Liebenberg, First Chairs at Trial: More Women Need Seats at the Table (American Bar Foundation and the ABA Commission on Women in the Profession 2015). Women today have more opportunities to become president of the United States or to have a seat at the table in a boardroom, but more images of women in leadership roles are needed for equity and as role models for future generations.
Attribution theory could explain our Hispanic male scenario where the expectation of a Hispanic male may be that he worked harder to get there. Why more plaintiff-oriented jurors in Survey 8 occurred because there was no expectation for the Hispanic in a police shooting case. This could also be why the Caucasian male is rated lower in the skills. Expectations are high and the Caucasian male is seen as normative. Once we share experiences with individuals who don’t look like us in school, in jobs, in transactions, or in sports teams, we broaden our cultural experiences. As we interact, diversity opens new doors in social and client relations.
Credibility factors. Developing credibility with the jurors is a major goal for trial lawyers. When respect is established, jurors are more likely to see you as more genuine, trust your arguments, and believe your case. Confidence, clarity, and expressiveness are the three factors that lead to perceived credibility. Cynthia R. Cohen, Demeanor, Deception and Credibility in Witnesses (ABA Section of Litigation Section Annual Conference materials 2013). Confidence is visible when you physically command the courtroom or pick yourself up if you fall flat in front of the jurors. How you deal with obstacles matters. Clarity deals with graphics and verbal explanations. Expressiveness deals with tones of communication.
Other things being equal, there is a tendency to like people more if they are honest rather than dishonest, helpful rather than harmful, friendly rather than unfriendly. On direct exam, it is easy to relate to witnesses in a friendly manner. Early psychology studies of trustworthiness looked at underlying characteristics. Anderson compiled a list of 555 adjectives used to describe people. N.H. Anderson, “Likeableness Ratings of 555 Personality-Trait Words,” 9 J. Personality & Soc. Psychol., No. 3, 272–79 (1968). The trait most valued by college students in the 1960s was sincerity. Of the eight top adjectives, six related to sincerity (i.e., sincere, honest, loyal, truthful, trustworthy, and dependable). The adjectives rated lowest were liar and phony—dishonest was close to the bottom. Possessing the highly rated qualities increases the probability that one will be liked.
Lawyers sometimes like a juror and falsely assume that it is reciprocal. Liking is more visible with witnesses. How much you like someone greatly affects how much he or she likes you. Once you form a positive impression of someone, it is more likely that the two of you will like each other. If you form a negative impression, the reverse is true. The more positive you are in expecting to be liked, the greater the chance that you will be liked. However, if your enthusiasm is seen as gaining rather than altruistic, distrust occurs.
Liking and similarity. There are many theories of liking, and while determinants of liking (e.g., proximity, rewards, similarity) do not ensure credibility, liking contributes to consideration of trusting the lawyer. Similarity is one of the most important factors affecting liking—sharing a common interest in playing bridge or golf, for example. The effect of similarity is seen most clearly with people who share cultural and demographic characteristics, attitudes, beliefs, interests, and backgrounds. This is probably why we see the choices people make in hiring professionals.
Liking plays an important part in how you relate to your client. Jurors notice everything in the courthouse, and being respectful of clients is critical. Jurors trust body language. Physical attractiveness is a factor that affects liking. People considered attractive are more liked than people considered not attractive. W. Stroebe, C.A. Insko, V.D. Thompson & B.D. Layton, “Effects of Physical Attractiveness, Attitude Similarity, and Sex on Various Aspects of Interpersonal Attraction,” 18 J. Personality & Soc. Psychol., No. 1, 79–91 (1971). Stroebe’s research indicates that physical attractiveness is more important to men than to women and that similarity had a greater effect for females than males.
While it is overly simple to conclude that more contact is always good, familiarity leads to liking. Zajonc showed subjects pictures of faces. R.B. Zajonc, “Attitudinal Effects of Mere Exposure,” 10 J. Personality & Soc. Psychol., No. 4, 1–27 (1968). Some of the faces were shown as many as 25 times, others only one or two times. Afterward, the subjects were asked how much they liked each face and how much they thought they would like the person pictured. The more often the subjects had seen a face, the more they said they liked it and that they thought they would like the person pictured.
Freedman, Carlsmith, and Sears studied the effect of familiarity with actual people. J.L. Freedman, J.M. Carlsmith & D.O. Sears, Social Psychology (Prentice Hall 2d ed. 1974). Each pair of subjects met either 3, 6, or 12 times. At each meeting, they sat across from each other without talking. At the end of the series of meetings, the subjects were asked how much they like each of the other subjects. The more often they met, the more they liked each other. Initially unlikeable people may become more likeable to jurors as time progresses. To put this into practice, consider having your client at trial as much as possible.
Trial Recommendations
Jurors have bias in perceiving case issues. Voir dire is critical in assessing preconceived bias. Even if Batson was not in effect, demographics (i.e., race, gender, age, or socioeconomic status) are not sufficient determiners for verdict. It is illegal to eliminate based on gender or race, and that is a help to trial lawyers because stereotypes mask the individual. Look at jurors’ prior experiences, and focus on case issues and attitudes for informed and successful de-selection.
Jury consultants involved earlier in the pretrial process with online jury studies make it is easier to recruit sufficient numbers of mock jurors for greater opportunities to identify predictors for unfavorable jurors. An online study of 400 randomly sampled mock jurors can statistically obtain predictors for bias in your case. Being prepared for jury selection gives the trial lawyer flexibility in dealing with uncertainties at trial. It is easier to recognize a juror who favors plaintiff or defense positions during voir dire from jury study insights.
Some judges allow a jury questionnaire to enhance voir dire; others curtail voir dire if a questionnaire is used. When judges limit time for voir dire, assessments with minimal information are made quickly and a greater need for a jury questionnaire exists. When asking the judge to permit a jury questionnaire, ask for sufficient time to read the collected questionnaires. It is a practical matter when getting copies late in the day or immediately before meeting the jurors in voir dire. Adequate time to read and analyze the questionnaire depends on the number of questionnaires collected as well as the length of the questionnaire. A functional questionnaire management system helps recall the responses that must be addressed.
Juror questionnaires provide great value with in-depth background to reveal bias prior to hearing the jurors speak. Address, during voir dire, red flags found in comments or answers marked private in the juror questionnaires. Ask the juror who marked answers as private to speak in chambers or sidebar. Look for emotions and experience that bias perceptions. The closer the jurors’ experiences are to the epicenter of case issues, the more difficult to reduce their bias. If a juror had a family member injured, that incident affects jury deliberations in a personal injury case. Experience influences jurors’ convictions in the deliberation room.