Last year I found the perfect solution for lonely, late nights at the office preparing for trial. I bought a fish. I named her Voir Dire.
Voir Dire was a betta fish. I was told by the eager PetSmart associate that her species is native to the Mekong basin of Laos and Cambodia, so she naturally liked shallow water, small spaces, sunlight, and plants, and she did not need to be fed often. Based on this batch of assumptions, and without further research, I decided on a very small glass bowl that fit nicely on the edge of my desk near the window. I filled the bowl with shallow water, purple rocks, and an underwater castle. I added a neon green plastic plant for ambiance.
Voir Dire liked to swim right up to the glass when I tapped lightly on it with my finger. She didn’t seem to mind when I forgot to feed her or when she went far too long between tank cleanings. She often seemed to be staring out the window with her gills puffed up to maximum size. I took these things to mean that she was happy, glad to interact with me, and thrilled to look at the outside world. I could always count on her support at 2 a.m. when I was dead tired and running on pure adrenaline. Once, during a late-night cross-examination prep session, I swear I saw her mouth “just keep swimming.”
Ultimately, I would learn that her name had been the perfect choice. Like a jury, I struggled to truly know Voir Dire because we did not speak the same language. I spoke lawyer; she spoke fish. Like a juror, she was there by force, not by choice. And like jury selection, Voir Dire’s fate was sealed from the beginning due to a series of assumptions I made about her species, her feelings, and what I perceived to be a favorable reaction to unfavorable conditions.
Many of the traditional jury selection techniques are based on unfounded assumptions about types of jurors or serve only to check an “important” topic off a list. However, jury selection is the last place trial lawyers should be simply checking questions off a list of time-tested topics without reflecting on the value of the questions or whether, as posed, those questions create more problems than they solve. Jury selection is the only point during a trial at which we, as lawyers, can have a conversation with the women and men who will decide our client’s fate. Unfortunately, far too often there are strict limitations placed on the amount of time we have for these precious conversations. These limitations make selecting topics, framing questions, and being conscious of subconscious biases even more critical to a successful process. Imagine that you only had 30 seconds to speak to the person who was going to resolve the greatest conflict in your life. What would you want to know? What wouldn’t you assume? What would you be careful of asking? How would you ask the question?
Avoid Group Questions and Beware of the Illusion of Transparency
Beginning jury selection by asking the venire a set of group questions is common training. However, group questions that begin with “Does anyone here . . . ?” or “Do any of you . . . ?” often elicit zero useful information. The most common response following a group question is “Let the record reflect no response for any juror” or “Let the record reflect no hands were raised.” The silence may be deadly. Due to forces beyond their conscious control, many times jurors believe that you and their fellow jurors have already been able to discern essential information regarding their beliefs despite their silence or based on their facial expressions. This is due to two simultaneous phenomena observed and referred to by social psychologists as the illusion of transparency and the spotlight effect.
As discussed by social scientists in the Journal of Personality and Social Psychology summarizing multiple studies on the topic, the illusion of transparency is a powerful subconscious mechanism that causes people to grossly overestimate the extent to which others can discern their internal reactions and thoughts. See Gilovich, Medvec & Savitsky, The Illusion of Transparency, 75 J. Personality & Social Psychol. 332–46 (1998). In other words, most people tend to feel as though others can “see right through them.” Id. at 335. This is especially true when someone is hiding information, lying, or experiencing something unpleasant. Id. at 343. Similarly, the spotlight effect “refers to the tendency to overestimate the extent to which others notice and attend to one’s external appearance and behavior.” Id. at 333.
Together, these two phenomena have been used to explain many puzzling questions about how humans respond in groups. For instance, researchers credit the illusion of transparency as an explanation for why people in groups are reluctant to speak up or intervene in emergencies. It has been generally observed that when a potential emergency arises, “people typically play it cool, adopt a look of nonchalance, and monitor the reactions of others to determine if a crisis is really at hand.” Id. at 339. However, because everyone in the group holds back, sometimes everyone in the group concludes that the situation is not an emergency and does not require intervention. Id. “Because people think their own alarm is more apparent than it really is, they assume that others are comparatively less alarmed, leading them to conclude, in turn, that the situation is not really an emergency and that no intervention is required.” Id. at 342. In the context of group questions, these phenomena work like this: The individual jurors overestimate the extent to which their personal beliefs and opinions are perceptible to others; to compensate, they stay quiet and act as though they have nothing contrary to say; they observe their fellow jurors remaining quiet; they conclude based on the silence of their fellow jurors that there is no need to volunteer information.
My advice: Avoid group questions as much as possible. If time is limited, spend the time you have asking meaningful questions to individual jurors. If the subject of your group question is that important, then spend your time asking each juror that question individually.
If you must ask group questions (some judges encourage this to “save time”), start with an individual question and expand the juror’s answer to the group. The smartest jury consultant I have ever worked with, Eric Oliver from Meta Systems, Ltd., taught me something very simple to help with this strategy. Eric stressed that it is not what you say as much as how you say it. Replacing the word “anyone” with the phrase “who else” helps combat the subconscious transparency illusion and spotlight effect:
ATTORNEY: Ms. Smith, do you have strong feelings one way or the other on suing a doctor?
MS. SMITH: Well, no, not if they intentionally hurt someone. But if they just made a mistake. You know . . . we all make mistakes.
ATTORNEY: I understand that. Thank you for sharing. [Speaking to the group:] Who else here feels similar to Ms. Smith? If a doctor did something intentional, they would understand bringing a lawsuit, but if it’s more like a mistake, they would have a harder time with that?
Ms. Smith was sitting quietly without any outward indication that she had strong feelings about lawsuits against physicians, but when prompted to share her strong feelings, she did so. Ms. Smith’s revelation allows other jurors to draw the right conclusion about everyone else sitting quietly—that they just haven’t shared their views yet, not that the apparent silence of others means they don’t feel the same way.
Ask Questions That Decrease Anxiety and Increase Group Value
Avoiding group questions does not mean abandoning group identification or harshly singling people out in a way that challenges one of the most important human motivations: self-esteem.
“You in the back.” A phrase commonly spoken at a juror in the back row with a raised hand or head cocked to the side while pointing directly at the nameless person. All heads in the courtroom turn to set their gaze on the unlucky person being pointed at. Suddenly the spotlight has shone brightly on that person sitting in the back row. That person’s entire goal was to hide, say nothing, and get excused as soon as possible. By pointing directly at this person whom you didn’t bother to address by name, you have diminished his self-value and increased his anxiety, and you have created the risk this nameless potential juror will seek to distance himself from the group in which you are attempting to include him. Simply put, you have increased the chance that this juror will turn into every trial lawyer’s nightmare—a holdout.
For years, psychologists have been exploring the question of why people need self-esteem and what function it serves. See Pyszczynski, Greenberg, et al., Why Do People Need Self Esteem: A Theoretical and Empirical Review, 130 Psychol. Bull. 435–68 (2004). Out of this research have arisen several dominant theories, including terror management theory (TMT). TMT suggests that self-esteem is a socially constructed “shield” designed to protect against the terror and deeply rooted anxiety that results from the awareness that we all will die someday. Id. at 436. Self-esteem is based on viewing yourself as “living-up to” values derived from your culture and worldview. Id. at 437. Self-esteem is maintained through a process of validation by others that helps maintain your “anxiety-buffering shield.” Id. Under a TMT theory of self-esteem, inclusion and positive evaluation by a valued group can bolster self-esteem. Negative evaluation or disagreement with someone’s beliefs threatens this protective shield. Id. at 454–55. If group validation and agreement bolster self-esteem, why would any one person distance himself or herself from a group? Like most questions about interpersonal relationships and group dynamics, this a complex question. TMT suggests that people will distance themselves from a group to protect their self-esteem or if they don’t believe in the valence, or “goodness,” of the group. Id. at 461.
How do you avoid challenging self-value during jury selection? My first suggestion is simple. Be polite. If you had only 30 seconds to speak to the person who was going to resolve the greatest conflict in your life, you would say hello, you would introduce yourself, you would address that person by name. You would not point directly and say, “Hey you!” As a society, we value identity, signs of respect, and social decorum. When you address someone by name, you validate that person’s self-worth. When you inquire how she is doing, you are expressing an interest in her worldview:
ATTORNEY: Okay. Next I would like to speak for a moment with Ms. Smith. Good morning, Ms. Smith. How are you doing today?
MS. SMITH: Very well, thank you.
ATTORNEY: Ms. Smith, I was very interested in something you wrote on your juror card. It looks like you have quite a large and successful family. Can you tell me about your family?
MS. SMITH: Thank you. Yes. I have six children and two grandchildren. And my oldest two children are doctors. My youngest two are lawyers.
Secondly, if a person’s decision to include herself in a group is based on whether she values the validation of that group, lawyers cannot wait until closing argument to explain the value of the jury as a whole.
Many lawyers are trained to elicit promises from each juror as to what each will individually do at the end of the case. For example, plaintiff’s attorneys are trained to ask: “If the Plaintiff has proved her case, would you be able to sign a verdict in her favor even if that verdict is for millions of dollars?” Conversely, defense attorneys ask: “If the Plaintiff does not prove her case, will you be able to set sympathy aside and send the family out of the courtroom with nothing?” However, these questions empower individual decision making. When the questions are reframed, they can place important emphasis on the value of the group and inclusion:
PLAINTIFF’S ATTORNEY: Mr. Smith, if you are a part of this jury, you will be part of a group that is tasked with sitting together and discussing the evidence we bring to you and making a unanimous decision about what occurred or did not occur during this operation. If we do our job, and we bring this group the evidence you all need to decide this case in favor of the family, will you be able to sit and discuss with your fellow jurors what is a fair and reasonable amount of money, even if that amount is millions of dollars, to compensate this family for the loss of their father and deliver a verdict with your fellow jurors in favor of the Plaintiff?
DEFENSE ATTORNEY: Mr. Smith, if you are a part of this jury, you will be part of a group that is tasked with sitting together and discussing the evidence we bring to you and making a unanimous decision about what occurred during surgery. If the Plaintiff does not prove her case, will you be able to sit and discuss with your fellow jurors sending the family home with nothing?
Ask Individual Questions That Test Your Own Judgment
Concentrating on individual questions and dialogue does not mean asking the same questions 12 different times. The value of individual questioning is the opportunity to ask meaningful questions to each juror that reveals something about the juror’s decision-making process or challenges something about your own. In the 1970s, cognitive psychologists and friends Daniel Kahneman and Amos Tversky began studying individuals’ judgment and decision-making functions. Ultimately, much of their work would become the foundation for the field of behavioral economics. In 1974, Kahneman and Tversky published their seminal paper exploring how people make decisions in the face of uncertainty. Tversky & Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 Science (n.s.), no. 4157, Sept. 27, 1974, at 1124–1131. The paper concluded that people rely on certain subconscious “heuristic principles,” or mental shortcuts, to reduce the complexity of assessing an uncertain situation. Id. at 1124. Kahneman and Tversky also recognized that while these heuristics can be useful, they can result in systematic errors or biases.
Giants of trial may have mastered how various heuristics and their resulting biases can be manipulated to influence jury decision making. At this point in my career, that would be quite a feat. However, I have found that awareness of heuristics at work in my own brain and the resulting biases is doable and testable during jury selection.
In the mind of an attorney during jury selection, the most dominant heuristic principle at work is representativeness. Kahneman and Tversky describe the representativeness heuristic (or judgment by representativeness) as the mental trick we use to answer the question “What is the probability that object A belongs to class B?” Kahneman and Tversky use the example of a librarian. If an individual is described as shy, withdrawn, helpful, and having little interest in people, we will assess the probability that the individual is a librarian, and not a farmer or a salesman, as very high. Id. However, judgment by representativeness alone can lead to serious errors because we ignore other important information, such as base-rate frequency and sample size, at the expense of representativeness. The fact that there are more farmers and salesmen than librarians in the workforce should enter into our assessment of whether the individual is a librarian rather than a farmer or a salesman—but it did not. Reliance on representativeness led to the neglect of this important probability parameter.
Moreover, we are overly (and unwarrantedly) confident in our predictions based on representativeness when there is a “good fit” between the information we are perceiving about an individual’s personality and the outcome, regardless of the quality of the information. Id. at 1126. For instance, “people express great confidence in the prediction that a person is a librarian when given a description of his personality which matches the stereotype of librarians, even if that description is scanty, unreliable, or outdated.”
During jury selection, lawyers are attempting to rapidly sort individuals into categories to deselect: plaintiff oriented or defense oriented, leader or follower, generous or stingy, rule follower or rule breaker, etc. It is in our best interest to eliminate any systematic flaws in our assessment of the probability that a certain juror belongs to a certain group.
In the interview setting, awareness of potential biases is critical to eliminating error when attempting to group individuals based on representativeness. Time is precious during voir dire. So addressing potential bias head-on is the only way to test whether it has skewed your grouping based on representativeness. Using Kahneman and Tversky’s librarian example as a jumping-off point is helpful. Assume you have a potential juror who is a librarian. He appears shy, soft-spoken, and non-opinionated. Based on prior experience, you group this potential juror in a follower category, unlikely to be a foreperson or an influencer. By comparison, you determine that the librarian is more likely to be a follower than the salesman in the next seat.
First, identify the group in which you have put this person is based on representativeness, based on his profession, and what you believe you perceive about his personality. Second, ask questions based on that information to test these assumptions—questions about leadership. Third, get creative.
ATTORNEY: Mr. Smith, it says here on your juror card that you are a librarian. How long have you been a librarian?
MR. SMITH: Ten years.
ATTORNEY: Congratulations. Are you on any committees or hold any other administrative positions at the library?
MR. SMITH: Yes, I am the chair of the Catalog Policy and Documentation Committee.
ATTORNEY: Interesting. Tell me a little more about that committee.
MR. SMITH: [Detailed description of committee.]
ATTORNEY: Now Mr. Smith, do you lead weekly or monthly committee meetings?
MR. SMITH: I organize a meeting every week.
ATTORNEY: Tell me about your role in the meeting.
We have learned more from this exchange about Mr. Smith’s decision-making process and probability of taking a leadership role on the jury than any preformulated questions about damages could teach. Although Mr. Smith seems to be a timid librarian who would fit nicely in a follower category, he appears to have more attributes of a leader. Contrary to what we may assume about librarians, this makes sense when you take into account prior probabilities. There are more opportunities for leadership and group work within the administration of a library than in a solo sales position. And the description of a librarian as shy, mousy, and timid is outdated.
On April 1, 2016, just four short months after I bought her, I found Voir Dire belly up, on the ledge of the windowsill. Suffice it to say, her death was an utter shock to me.
I don’t blame myself entirely. She had led me to believe she was thriving in her small fish tank, happily staring out the window. Turns out we both had a biased assessment of one another’s ability to read each other’s internal reactions. But that was not the nail in her coffin. I had done nothing to challenge the many assumptions I made about Voir Dire’s species based on untrue and outdated information from my lovely PetSmart associate regarding the small ponds of Laos. Furthermore, I had continuously pointed directly at Voir Dire, singling her out for my love and attention. . . .
Turns out the most important fact to know about betta fish is that they are territorial. If they encounter something near their valued space, they puff up their gills and attack by ramming their head into the aggressor. What I had perceived as happily staring out the window or lovingly nudging against the side of the bowl had been Voir Dire attempting to protect her territory by attacking her own reflection (or my finger) and repeatedly ramming her head against the glass.
Equally important is the fact that betta fish are migratory. In their natural habitat, they do live in small ponds, but they do not stay permanently. They jump from shallow pond to shallow pond across the rice plains to feed daily. That is another thing: Betta fish can (and will) jump. All of this means that a small glass bowl on the edge of my desk near the window was the last place Voir Dire would thrive. But, as James Russell Lowell once said, “One thorn of experience is worth a whole wilderness of warning.”
As fish owners and trial lawyers, we move upward and onward from our wins and our losses. I have a new fish. His name is Res Ipsa. His tank is larger and his water fuller, and I feed him daily. I don’t point and I don’t touch the glass.