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Monthly Archives: February 2015

Professor’s Notes: Potential Jury Biases in Civil Litigation

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vidmar_neilwritten by guest blogger Neil Vidmar, Ph.D. (social psychology) , Russell M. Robinson II Professor of Law, Duke Law School and Professor of Psychology, Duke University

The fact that prospective jurors may hold biases against the plaintiff or defendant, or both, is of no surprise to experienced trial lawyers. However, one problem is to recognize the potential multi-factor nature of juror bias and consider it not only in jury selection but also throughout the trial. Equally important is the need, in some cases, to provide evidence to persuade the judge to take remedial steps to ensure a fair jury, sometimes through a change of venue but , alternatively through the process of jury selection, jury instructions throughout trial, and/or planning strategy as to how evidence should be presented. In this brief essay, I outline some insights from the perspective of a social psychologist with approximately four decades of research and testimony in civil and criminal cases, not only in the United States but also in Canada, England, Australia, and New Zealand.

It is useful to consider four general categories of juror bias. The first is Interest Prejudice, also called “manifest” prejudice. Such biases arise from the prospective juror having a direct or indirect interest in the outcome of the trial. Obvious examples are a juror having a social or financial relationship with one of the parties to the litigation. In one case against a North Carolina utility company, focus groups revealed that many people in the community expressed concern about a rise in their electricity rates if the plaintiff prevailed. The second bias, Specific Prejudice, involves juror attitudes arising from factual information or rumors bearing on one or both of the parties—or trial witnesses. Such prejudice may arise not only from mass-media coverage but also from informal gossip, often erroneous, generated among members of the community. Generic Prejudice, the third bias, involves the transferring of pre-existing attitudes, beliefs, or stereotypes with respect to the parties or witnesses involved in the trial. Such examples might involve alleged or actual drug use, homosexuality, parental irresponsibility, corporate irresponsibility/greed, race, and ethnicity. In one case, a substantial number of prospective jurors reported that they were offended by aggressive television advertising by the plaintiff’s law firm and therefore from the outset would tend to favor the defendant. Finally, Conformity Prejudice exists when a juror perceives that there is such strong community reaction in favor of a trial outcome that he might tilt in that direction, despite personal feelings that are neutral. In the North Carolina power company case referenced above, survey research indicated that despite professing personal neutrality, substantial numbers of potential jurors indicated that they might feel pressure from friends and neighbors to tilt toward the defendant rather than the plaintiff.

It goes without saying that multiple sources of potential prejudice may exist in a particular trial, but these problems have been made more problematic in the age of the Internet. In both criminal and civil cases, there are numerous examples of jurors researching facts about the case on the Internet. This contamination may occur following a jury summons, after jury selection has begun, or during trial. Research has shown that although jurors may be reluctant to undertake jury duty, once they become involved in the trial they increase their interest; also, some jurors are tempted to seek out additional information on the Internet, despite judicial admonitions to refrain from such activity.

Systematic empirical research can often identify and document these sources of potential bias. Indeed, such evidence is often necessary in order to convince the trial judge to provide a remedy, whether it is extended voir dire, change of venue, or some other remedy. In previous cases, I have provided the court with testimony and documents involving systematic analyses of news media coverage, including not just the number and length of articles but also their content. This coverage might include not only newspaper reports but also television, radio, and Internet chatter. Frequently, it is important to have data from one of more alternative venues for comparison. It is advisable to conduct a systematic survey—usually by telephone—of a random number of households in the community and in alternative venues. Moreover, these surveys should include some open-end questions in which respondents are recorded verbatim ( as opposed to multiple-choice answers ). However, in some cases surveys have not followed accepted standards of survey design and were subject to serious criticism when the expert testified in court.

While most of the time my own surveys and testimony in civil cases have been on behalf of defendants, in one recent case civil case I testified for the plaintiff—actually, a state attorney general—that the design of the defendant’s survey violated elementary research guidelines and was badly biased toward producing a favorable result for the defendant. I should also note that in another case involving construction claims against a university, my survey on behalf of the defendant showed that the original venue chosen by the plaintiff was potentially more favorable than alternative venues originally favored by the defense litigation team. (Both the defense lawyers and I had originally underestimated “town versus gown” hostility.)

Some illustrative writings bearing on these matters are as follows: Vidmar, N. Case Studies of Pre-and Mid-trial Prejudice in Criminal and Civil Litigation. 26 Law and Human Behavior, 73 (2002); Vidmar, N., Media Impact on Trial by Jury, in Andrew Taslitz, ed., A Criminal Practitioner’s Guide to Managing the Media in Client Representation, ABA Press, 2013; see also Vidmar, N. and Hans, V. P., AMERICAN JURIES: THE VERDICT, Prometheus Books ( 2007) at Chapter 4.
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