July 31, 2018 Articles

A Guide to Implicit Bias and Explicit Views of Lawyers' Race and Gender

Read this original study to test mock jurors' views of lawyers

By Cynthia Cohen

Explicit Bias and Unconscious Bias

Voir dire sets the stage for trial. Some people believe that jurors make up their minds by the end of opening statements. Others believe that the case is over at jury selection. My observation is that how the evidence is presented and the jurors’ bias from life experience and their impressions of lawyers and parties determine deliberations. Explicit bias is evidenced when people speak about stereotypes. Batson v. Kentucky, 476 U.S. 79 (1986), and its progeny challenge explicit bias in jury selection. Unconscious bias occurs without forethought. Understanding why some people stick to their own stereotypes for impression management helps in mitigating unconscious bias.

This article discusses the psychological underpinnings of both explicit and implicit (or unconscious) bias and stereotyping, as well as empirical findings from an original study to test mock jurors’ views of lawyers. I examined (1) bias in mock jurors’ preferences for gender and race if they were to hire an attorney and (2) perceptions of lawyers’ skills to see whether it affects verdicts. Four hundred sixty mock jurors were randomly assigned to eight identical surveys varying the gender and race of the attorneys described in the scenario (i.e., Asian females, Asian males, African American females, African American males, Caucasian females, Caucasian males, Hispanic females, Hispanic males). Mock jurors rated attitudes about the legal system and their lawyer preference before reading a hypothetical scenario. Conclusions regarding stereotypes and why some people go against their own in-group explain choices they make for their lawyer preferences.

Who Would You Hire?

Asians preferred the “Caucasian Male” lawyer as their first choice when asked “Who would you choose as your lawyer?” Other races rated their own race most favorably. Table 1 shows ratings for preferred lawyer by mock jurors’ race. Asterisks indicate first and second preference, for each group. African Americans prefer females over male lawyers within their own race. Caucasians and Hispanics prefer males over females within their own race.

Table 1: Mock Jurors’ Preference for Lawyer Representation by Mock Jurors’ Race

LAWYER PREFERENCE

Asian

African American

Caucasian

Hispanic

Total

1. Asian_Female lawyer

4

5

5.5

8

6

2. Asian_Male lawyer

2*

6

5.5

7

5

3. Black_Female lawyer

6

1*

3

6

4

4. Black_Male lawyer

5

2*

4

4

3

5. Cauc_Female lawyer

3

4

2*

5

2

6. Cauc_Male lawyer

1*

3

1*

3

1

7. Hisp_Female lawyer

8

7

7

2*

7

8. Hisp_Male lawyer

7

8

8

1*

8

When all races are combined together, the Caucasian male lawyer is number one and the Caucasian female is number two (Table 2). All females’ combined ratings tilt toward the black female lawyer as the next preference. All males’ combined ratings tilt toward the black male lawyer as the next preference. The Asian male lawyer is rated higher by males than females.

Table 2: Mock Jurors’ Preference for Lawyer Representation by Mock Jurors’ Gender

LAWYER PREFERENCE

Females

Males

Total

1. Asian_Female lawyer

5

6

6

2. Asian_Male lawyer

6

4

5

3. Black_Female lawyer

3

5

4

4. Black_Male lawyer

4

3

3

5. Cauc_Female lawyer

2

2

2

6. Cauc_Male lawyer

1

1

1

7. Hisp_Female lawyer

7

8

7

8. Hisp_Male lawyer

8

7

8

Past experience with lawyers. Caucasians led other races in experience of hiring a lawyer (Chart 1a). Males and females equally have hired a lawyer (Chart 1b). Divorce from a traditional marriage could account for the gender equality.

Chart 1a: Mock Jurors’ Experiences with Lawyers by Mock Jurors’ Race

Chart 1b: Mock Jurors’ Experiences with Lawyers by Mock Jurors’ Gender

Attitude ratings. Mock jurors’ attitudes on skepticism and trust affect how they view a case. Basic questions, asked before the mock jurors read the scenario, give insight into how the verdict is affected. Means below 3.0 indicate the group agrees, and means above 3.0 indicate the group disagrees with that attitude. Baseline differences between races (Charts 2a and 2b) and gender (Chart 2c) exist on these items. All race groups equally disagree that “4. Gossip columns are generally true.” Blacks and Hispanics are more likely to want to make the world a better place. Blacks and Hispanics more strongly agree that “3. There are many conspiracies in the U.S.” Caucasians believe more strongly than blacks that “9. People look for opportunities to sue corporations (and 10. to sue cities).” Females are more likely to believe that “12. Truthfulness is important in trials.”

Chart 2a: Mock Jurors’ Attitudes by Mock Jurors’ Race

Chart 2b: Mock Jurors’ Attitudes by Mock Jurors’ Race

Chart 2c: Mock Jurors’ Attitudes by Mock Jurors’ Gender

Mock jurors’ opinions on awarding damages. “What is your opinion on money damages that are awarded in lawsuits?” In the results analyzed by race in Chart 3a, fewer blacks think that money damages are usually too large and more blacks think that damages are occasionally too low. More Caucasians believe that money damages are usually too large. In the results analyzed by gender in Chart 3b, males are more likely to believe that money damages usually are too large, and females are more likely to believe that money damages are occasionally too low.

Chart 3a: Mock Jurors Opinions on Awarding Damages by Mock Jurors’ Race

Chart 3b: Mock Jurors Opinions on Awarding Damages by Mock Jurors’ Gender

A Hypothetical Scenario and Eight Surveys

Imagine a police officer with a homeless person involved in shooting a gun. What does the police officer look like to you? What does the homeless person look like? Did you imagine the police officer and the homeless person to be a particular race or gender? Was it your own or another race or gender? Now stop and think, if you need a lawyer, who would you hire? Does that lawyer look like you? Now imagine being interviewed by a potential client—what does that person look like? It is impossible to imagine a person without conjuring up both a race and gender.

From Los Angeles to Ferguson to Baton Rouge, police shootings typically polarize communities. Community sentiment matters in jury trials. This study set out to determine whether race and gender factor into perceptions of lawyers representing parties as well. Bias exists in all of us. Bias helps everyday decision making from the time of birth. Babies smile at faces similar to theirs and are frightened by unusual faces. Babies racially discriminate at about six months old. P.O. Bronson & A. Merryman, “Even Babies Discriminate: A Nurtureshock Excerpt,” Newsweek, Sept. 4, 2009.

I used a stratified random assignment of mock jurors’ race and gender to each of the eight surveys. That is, each survey had virtually equal numbers of mock jurors from each race and gender. The scenario about a police officer shooting a mentally ill homeless person who had a gun balanced facts for the Smith family and the City of Metropolis. For simplicity, the plaintiff’s lawyer (the Smith family lawyer) and the defendant’s lawyer (the City of Metropolis lawyer) had identical race and gender within each survey. (For example, each survey had a brief description of qualifications: Lawyers for both sides of this case are “Asian Females.” Both happen to be practicing for seven years and each went to a prestigious college and graduated top of the class in law school.)

After reading the scenario, mock jurors were asked who should win this case. The verdict split—55.4 percent for the Smith family and 44.6 percent for the City of Metropolis—indicates that this hypothetical was even-handed.

Plaintiff-oriented jurors (POJ) versus defense-oriented jurors (DOJ).

Issue Questions

Accountability versus fear. Mock jurors answered issue questions before indicating their verdict and why they chose their verdict, and attributed race and gender to the police officer and the decedent. The number one reason favoring the plaintiff is the belief that accountability in the system is broken. The number one reason favoring the defendant is that the police officer feared “own life” was in danger. The three issues supporting the defense clustered together (Chart 4a). Mock jurors could choose more than one issue for selecting a verdict.

Results vary within issues and race (Chart 4b). There are race differences in accountability of the system, police always lie, and the homeless person had a gun. There are similarities between some races in police officer feared “own life” was in danger (Asian and Caucasians are similar, and blacks and Hispanics are similar). Two issues similar across all races are the shooting was intentional and the mental illness issue.

Chart 4a: Issues Determining the Verdict

Chart 4b: Issues by Mock Jurors’ Race

Chart 4c: Issues Important to Each Race

Chart 4d: Issues Important to Each Race

In Chart 4e, a higher percentage of males perceive that police always lie. Accountability of the system, whether the shooting was intentional, police feared “own life” was in danger, and the homeless person had a gun had no gender effects. The mental illness issue differs slightly between men’s and women’s perceptions (a higher percentage of females indicated that as their reason for the verdict).

Chart 4e: Issues by Mock Jurors’ Gender

Emotions determine verdict. Police shootings are highly emotional cases. Experiences at the epicenter of a case generally differentiate between those who are for the plaintiff and those who are for the defendant. In this case, fear has a bigger effect than did mock jurors’ experiences with gun ownership and whether they ever witnessed a shooting (Chart 5a). Those who fear civilians owning guns or who are afraid of police officers favored the plaintiff’s case.

Chart 5a: Mock Jurors’ Emotions by Verdict

Asians are more likely to fear civilians with guns (Chart 5b). Hispanics have a higher percentage of police officer friends, while Asians have the fewest police officer friends. Chart 5c indicates similarities between gender perceptions, although we see females, more than males, fearing civilians with guns.

Chart 5b: Mock Jurors’ Emotions by Mock Jurors’ Race

Chart 5c: Mock Jurors’ Emotions by Mock Jurors’ Gender

Community attitudes. It is important to get a contemporaneous read of community attitudes before a trial. Attitudes change as people observe issues on television and social media. The data, collected shortly before the 2016 presidential election, show most people agree that newspaper stories report the facts. That item could change with the prevalence of alleged “fake news” now discussed in the media. Understanding community attitudes when trying a case can affect the case presentation.

Impacting this hypothetical case, defendant-oriented jurors agreed slightly more than plaintiff-oriented jurors that people look for opportunities to sue corporations (item 9) or to sue cities (item 10). Item 5, “I would like to make the world a better place,” is a belief equally held by both plaintiff-oriented jurors and defendant-oriented jurors.

Note: In Chart 6, attitudes above the 3.0 neutral point are items that most people do not believe. Item 4, “Gossip columns are generally true,” is above that neutral point, and  defendant-oriented jurors were slightly more likely to disbelieve gossip columns. Item 2, “Television news reports facts,” is below the 3.0 neutral point.

Chart 6: Mock Jurors’ Attitudes by Verdict

Mock jurors’ experience with lawsuits. We often hear questions in voir dire about damages or experiences in court. In this study, we asked, “What is your opinion on money damages that are awarded in lawsuits?” We examined whether it was predictive of verdict (Chart 7). Just because a prospective juror says damages are usually too low or occasionally too high does not mean that that juror would award or not award damages in your case. In this hypothetical scenario, we see that it is counterintuitive that those who have been sued are more in favor of the plaintiff (Chart 8). We saw in Charts 3a & 3b above that more Caucasians than Asians previously hired an attorney and there are no gender differences in that experience.

Chart 7: Mock Jurors’ Opinion on Money Damages by Verdict

Chart 8: Mock Jurors’ Experiences in Court by Verdict

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.

Chart 9a. Perceived Race of Decedent by Mock Jurors’ Race

Chart 9b. Perceived Race of Decedent by Mock Jurors’ Gender

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.

Chart 10a. Mock Jurors’ Perceived Race of Police Officer

Chart 10b. Mock Jurors’ Perceived Race of Police Officer

 Chart 10c. Mock Jurors’ Perceived Race of Police Officer by Mock Jurors’ Gender

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?

Chart 11: Mock Jurors’ Attribution of Lawyers’ Hard Work/Luck by Verdict

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.

Chart 12a: Mock Jurors’ Attribution of Plaintiff Lawyers’ Luck by Survey

Chart 12b: Mock Jurors’ Attribution of Defense Lawyers’ Hard Work by Survey

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.

Chart 13a: Plaintiff Lawyers’ Skills by Survey

Chart 13b: Defense Lawyers’ Skills by Survey

What We Learned from This Study

  1. Most consumers prefer to hire a lawyer from their own race, except that some Asians may prefer Caucasian males as their lawyer.
  2. 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.
  3. Asians and Caucasians are more likely than blacks and Hispanics to believe that people look for opportunities to sue corporations and cities.
  4. Defense-oriented jurors are more skeptical and less likely to believe gossip columns, television news, or lawyers.
  5. 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.
  6. Surnames influence presumed race.
  7. Caucasian male is the presumed race and gender of an imagined police officer.
  8. Caucasians are rated highest in preferred lawyer and lowest on perceived skills and attributes. This is a contrast effect that needs further discussion.
  9. 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.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).