Book Review: Scientific Jury Selection

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Reviewed By Dr. Gary Giewat

Article Published in Journal of Court Innovation, Fall 2008:

Scientific Jury Selection was written by Dr. Joel D. Lieberman and Dr. Bruce D. Sales

In discussing research problems in the social sciences, social psychologist Kurt Lewin remarked over 50 years ago:
The greatest handicap of applied psychology has been the fact that, without proper theoretical help, it had to follow the costly, inefficient, and limited method of trial and error. Many psychologists working today in an applied field are keenly aware of the need for close cooperation between theoretical and applied psychology. This can be accomplished in psychology, as it has in physics, if the theorist does not look toward applied problems with highbrow aversion or with a fear of social problems, and if the applied psychologist realizes that there is nothing so practical as a good theory.1

Scientific Jury Selection successfully integrates empirical research with applied social science. The authors provide a thorough overview of the history of scientific jury selection with a strong academic point of view. They identify and review what is likely the majority of social science research relevant to jury selection. As a practicing trial consultant, I found this survey very useful as a refresher that touches on theory and methodology. The work also covers areas that consultants or other readers may not be familiar with, including the history of this young profession. This book will be useful to attorneys as a means for becoming better consumers of jury consulting services. The book also provides the judiciary and court administrators with insight into the theory and methods of what litigation consultants do and dispels myths and stereotypes about what we do.

It should be noted that the term “scientific jury selection,” in the eyes of many litigation consultants is perhaps a misnomer. “Scientific jury selection,” per-se, is not science in the Popperian2 sense of testability and falsification or of Fisher’s3 testing of hypotheses. Instead, litigation consultants with a background in the social sciences who are involved with jury selection use tools and theory from the social sciences in assisting attorneys with jury selection.4    I am among the litigation consultants who view their role as a hybrid, blending social science theory and methodology with years of experience in the courtroom.

Lieberman and Sales dispel the misguided view that litigation consultants assist with jury selection in a John Grisham-like manner, “reading” people by drawing conclusions about behavior from jurors’ clothing and non-verbal cues much the same as Rankin Fitch did in “Runaway Jury.”5    Rather than the Hollywood mythology, Lieberman and Sales address the “tools” that litigation consultants use to help guide and advise attorneys including community attitude surveys, supplemental jury questionnaires, proper questioning techniques, and, yes, to some extent, non-verbal and paralinguistic behavior.6
The authors cover a variety of topics in this volume, first tracing the origins of scientific jury selection to the 1972 Harrisburg Seven trial7 and other political themed cases in the 1970’s where academics offered their time and skills to assist the defense in criminal trials that were challenging, to say the least, in terms of identifying potential bias in jurors.8    The authors then trace the evolution of scientific jury selection in complex civil trials of the 1980’s and recent high-profile criminal trials including O.J. Simpson, Martha Stewart, and Kobe Bryant.9    Lieberman and Sales also thoroughly review the purposes and effectiveness, and ineffectiveness, of voir-dire as they examine the historical development of voir dire, explaining its intended purpose, as well as its unsanctioned roles in educating jurors and attorneys’ efforts to ingratiate themselves with jurors.10

In discussing the substance of scientific jury selection, Lieberman and Sales skillfully review the use of community attitude surveys as a tool in identifying potential bias in jurors for jury selection, as well as for change of venue.11    Their work is not a “how to” or a guideline for jury selection; that was not their intent. Instead, the authors outline the important issues of which both attorneys and the judiciary should be aware, including sample size, questionnaire length, the use of bogus items and other methodological and statistical issues. Knowledge about these issues will make for a better attorney-consumer of making decisions during jury selection. Instead, they explain that demographic characteristics might account for a modest degree of verdict preference.20    For instance, I have experience in civil litigation where in a case involving employment discrimination, religiosity was a decidedly important variable; devout Baptists were unsympathetic to a plaintiff whose claims had considerable merit, but whose marital infidelity was viewed with great disdain and compromised his credibility. Some demographic factors might be considered quasi-attitudinal, such as education, political orientation or religion. Varied life experiences influence the way jurors attend to and process information. Using varied demographic factors may sometimes assist in jury selection decision making, particularly in the context of federal court, where attorney conducted voir dire is often absent. Nonetheless, as Lieberman and Sales point out, demographics alone are of modest value in identifying potentially biased or adverse jurors during jury selection.

Personality factors and attitudes are viewed as more relia- ble predictors of juror behavior than demographics.21    The authors provide an interesting review and discussion of personality theories and characteristics such as authoritarianism22, dogmatism,23 just world beliefs24 and attitudinal issues such as tort reform and the death penalty.25    The attitudes people maintain have value in predicting behavior to some extent. But, it is important to use this construct carefully when making decisions in jury selection.
The most significant sections of Scientific Jury Selection address the role of demographic factors12 and of personality and attitudes13 as they relate to identifying unfavorable or biased jurors. The authors highlight the tradition of using demographics as a predictor of juror behavior. While skilled and talented avocates in their day, famed attorneys Clarence Darrow and Melvin Belli made broad and sweeping generalizations regarding juror type.14    For instance, Belli believed that married people are perhaps more forgiving, while Darrow suggested that wealthy jurors were conviction prone.15    Even today, over reliance on demographic stereotypes is pervasive. In a 2003 California District Attorney Association Capital Prosecution Seminar, a senior deputy district attorney made a blanket statement on his practice of excluding Jews during jury selection in capital trials.16    A 1986 training videotape prepared by an assistant district attorney in Philadelphia advised against seating African-American women in capital cases.17
The authors rightfully caution on the use of demographics as predictors of juror behavior and highlight their limited predictive value in light of empirical research demonstrating little relationship between demographics and verdict preference.18 On the basis of factors such as age, occupation, gender, race, and socioeconomic status, the authors conclude that broad generalizations made on the basis of demographic factors may be unreliable and flimsy as predictors of behavior,19 a conclusion with which this author generally agrees.

Lieberman and Sales do not discount fully juror demographics as characteristics to take into consideration when as the authors point out, there is a marked pitfall in relying on attitudes to predict behavior when the focus is on abroad, global range of issues.26    That is, asking jurors if they dislike large corporations is far less informative than asking more specific questions, like “To what extent do you believe large corporations are ethical?” or “How common is it for large corporations to cheat to get ahead?” Here, Lieberman and Sales identify the importance of level of specificity in attempting to predict actual behavior.27    The more specific a question is regarding attitude, the better the ability to predict behavior.
The attitude-behavior connection has long been a focus of study in social psychology. In predicting behavior, attitudes are known to have only a modest correlation. However, the degree to which attitudes accurately predict behavior depends in large part on the specificity of the assessed attitude. The probability of accurately predicting a behavior can be increased by asking about specific attitudes. Thus, in voir dire questions it is best to focus on attitudes toward specific issues rather than broad or global attitudes. As an example, a question such as “Are you in favor of the death penalty” is of less value than something more specific, such as “Are you in favor of the death penalty in a case involving a woman convicted of murder in a case involving spousal abuse?” This section of the book specifically addressed to jury selection underscores the value offered by litigation consultants, with training in the social sciences, in jury selection. The authors conclude that consultants with knowledge and training in attitude theories, cognition and survey research are best able to assist attorneys in revealing potential bias in jurors via careful and systematic application of the tools of their trade.28

Does scientific jury selection work? The answer to that question, according to Lieberman and Sales, is yes. . . and no. . . and maybe. In other words, there is no clear answer to this question. To empirically verify whether scientific jury selection is effective is a challenge for several reasons. The first challenge is to define “effective.” Is effectiveness evaluated solely on the basis of winning or losing? Is the assistance effective if a jury convicts a defendant in a murder trial, but recommends a life sentence rather than death? Or, is litigation consulting effective when a corporate defendant is found negligent, but the damage award is only $100,000 when the plaintiff sought $15 million?
The authors discuss several studies that assess the effectiveness of scientific jury selection.29    They point to case studies suggesting that scientific jury selection is effective. But, that research does not involve true experimental design using a control and treatment group. And yet research that addresses the question using more sophisticated experimental design is flawed because it often relies on artificial scenarios, small sample sizes, lack of judicial admonitions and may use law students rather than attorneys. A variety of other factors in addition to jury trial consulting services can influence case outcome, such as attorney skill and experience, the use of other experts, graphic presentations, and more. In the end, the most significant determinant of case outcome is the actual case evidence.30

The authors make clear, after reviewing experimental and quasi-experimental research, that the strength of case facts is a stronger predictor of verdict variance than juror characteristics. On the other hand, case strength is not always clear cut and in those instances where the scales of justice could easily tip one way or the other, the ability to account for 1% to 10% of variation in juror verdict preference or inclination might be especially valuable.

Litigation consultants provide an additional set of eyes and ears for a trial team in order to allow for the most effective use of peremptory challenges and inform counsel on cause challenges. Consultants with a background in the social sciences use the tools and theory from psychology and sociology to provide a more systematic and objective approach to the jury selection process. As noted by the authors, scientific jury selection may be viewed as an actuarial decision making approach, relative to the attorneys’ experiential based clinical approach.31    The experiential approach is more susceptible to a variety of errors in judgment including overreliance on heuristics, mental or cognitive “shortcuts,” and stereotypes.

Beyond the history of scientific jury selection, its mechanics and efficacy, Lieberman and Sales discuss briefly other services offered by litigation consultants, including focus group research, mock trials, shadow juries and post trial interviews.32 Although the litigation consulting industry has its roots in jury selection, the authors place undue emphasis on the importance of jury selection services, in the opinion of this author. The pre- trial services offered by consultants provide significant value to attorneys in identifying the strengths and weaknesses of a case, identifying and testing trial themes, assessing risk, providing insight for settlement in civil litigation, and of course insight into strategies for jury selection. From an economic perspective, in my opinion, attorneys may get more “bang for their buck” with pre-trial services as opposed to jury selection.
In discussing the litigation consulting profession as a whole, issues of ethics and professionalism invariably arise—as they should. Lieberman and Sales provide an evenhanded overview, examining issues such as fairness, affordability, discoverability, standards and more.33    The American Society of Trial Consultants has been working diligently for the last several years, and continues to do so, developing practice guidelines for trial consultants.34

Highlighting the lack of certification or licensure of consultants, the authors suggest that licensing would guarantee minimal academic backgrounds, participation in continuing education, and sanctions against practitioners who violate professional standards. While the call for stringent standards for professional conduct has merit, the authors fail to recognize that unlike attorneys and psychologists who have received similar training from accredited institutions, litigation consultants do not have similar backgrounds and training. Instead, litigation consultants come from diverse educational and practice backgrounds including psychology, communications, social work, law, theatre, business, political science, and more.

Conclusion
The primary value of Scientific Jury Selection is its breadth of coverage and appeal to consultants, attorneys, students, and the judiciary. The authors state in their introduction that:

The ultimate goal of this book is to familiarize readers with various consultant activities that are related to jury selection and to discuss research that has evaluated the effectiveness of those ac- tivities. As a result, psychologists, other social scientists, and practicing jury selection consultants who read the book should have a better understanding of the current research relevant to scientific jury selection and of areas in which new research needs to be conducted to advance the field. In addition, attorneys who read the book should be better able to decide whether to hire selection consultants to assist in future litigation, and if they do, what types of services these consultants should provide. We hope that this will lead to more widespread and creative collaborations between academic researchers, consultants, and attorneys and that more effective approaches for eliminating biased jurors can be developed.35
In a single volume, Scientific Jury Selection provides a thorough review of the roots and history of the application of social science to jury selection, gives an overview of the purpose and effectiveness of voir dire, and then a thorough compilation of relevant social science research to date that examines varied issues related to jury selection. The authors conclude their work with a call for increased collaboration between litigation consultants and academic researchers. This call for collaboration has been answered by the American Society of Trial Consultants via student research grants, student paper competitions, and increased involvement with academic researchers throughout the United States.36

While Scientific Jury Selection has a strong academic slant, the research addressed by its authors will have broad appeal for many, including attorneys, judges, and graduate students considering litigation consulting as a career. For practitioners in the field, Scientific Jury Selection is useful as a “go to” reference for a variety of special niche topics related to jury selection.

1.    Kurt Lewin, Problems of Research in Social Psychology, in FIELD THEORY IN SOCIAL SCIENCE; SELECTED THEORETICAL PAPERS 169 (D. Cartwright ed.) (1951).
2.    Karl Popper was an influential 20th century philosopher. For Popper, a theory is scientific only if it is refutable by a conceivable event. Every genuine test of a scientific theory then is logically an attempt to refute or to falsify it, and one genuine counter-instance falsifies the whole theory. STEPHEN THORNTON, STAN- FORD ENCYCLOPEDIA OF PHILOSOPHY (2006), http://plato.stanford.edu/entries/ popper/#Trut.
3. R.A. Fisher is thought of as the father of modern statistics. His legacy includes statistical evaluation and the null hypothesis. That is, if there is a statisti- cal difference between a treatment group and a control group, one may reject the null hypothesis of no difference between groups. In addition, Fisher is often cited as setting the p< .05 level as the acceptable probability for determining statistical significance. ELAZAR J. PEDHAZUR & LIORA PEDHAZUR-SCHMELKIN, MEASUREMENT, DESIGN, AND ANALYSIS: AN INTEGRATED APPROACH (1991).
4.    The field has also been named “systematic jury selection.” See, e.g., VALE- RIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 91 (2001).
5. JOEL D. LIEBERMAN & BRUCE D. SALES, SCIENTIFIC JURY SELECTION (2006).
6.    LIEBERMAN & SALES, supra note 5. See generally chapters 3, 6, and 7.
7.    In the Harrisburg Seven trial, seven anti-Vietnam-war activists were ac- cused of plotting to kidnap Secretary of State Henry Kissinger. Sociologists and psychologists sympathetic to the defense assisted with jury selection by con- ducting survey research and produced a juror profile that was used to assist with voir dire. See Jay Schulman et al., Recipe for a Jury, 37 PSYCHOL. TODAY 41, 77-84 (1973).
8.
9. 10. 11.
See LIEBERMAN & SALES, supra note 5, at 3. LIEBERMAN & SALES, supra note 5. Id. at 107. Id. at 39. The American Society of Trial Consultants’ Professional Code
includes a detailed overview of procedural issues regarding survey methodology in venue research. See ASTC Professional Code, Venue Surveys, http://www. astcweb.org/public/about_us/code.cfm.

12.    LIEBERMAN & SALES, supra note 5, at 57. Demographics are characteristics of human populations which describe factors such as age, gender, marital status, etc. See GLOSSARY: A SURVEY RESEARCHER’S HANDBOOK OF INDUSTRY TERMINOLOGY AND DEFINITIONS (1992).
13.    LIEBERMAN & SALES, supra note 5, at 79. 14.    Id. at 58. 15. Id. 16.    Leonard Post, Boxing with Jury Selection, NAT’L L. J., April 27, 2005, http://
www.law.com/jsp/article.jsp?id=1114506316826.
17. 18. 19.
Commonwealth v. Lark, 746 A.2d 585, 589-90 (Pa. 2000). LIEBERMAN & SALES, supra note 5, at 57. Id. at 77.

20. 21. 22.
Id. at 76. Id. at 79. Authoritarianism is a personality construct that was first studied during
the Post World War II era. Persons defined as authoritarian in nature have a de- sire for order, conform to conventional norms, and defer to authority. The classic research was conducted by Theodor Adorno. See THEODOR ADORNO ET AL. , THE AUTHORITARIAN PERSONALITY (1950).
23. Similar to the authoritarian construct, dogmatism focuses primarily on those with an inflexible and closed minded personality. See MILTON ROKEACH, THE OPEN DOOR AND THE CLOSED MIND (1960).
24.    The general premise of “just world beliefs” is that people get what they deserve in life, that good things happen to good people and bad things happen to bad people. See MELVIN J. LERNER, THE BELIEF IN A JUST WORLD: A FUNDAMENTAL DELUSION (1980).
25.    LIEBERMAN & SALES, supra note 5, at 95.

26. 27. 28.
Id. at 152. Id. at 100. Id. at 165.

29.    Id. at 153. 30. Id. 31.    Lieberman and Sales discuss the theoretical reasons why an actuarial approach, based in statistically oriented judgment, is more accurate and valid than a clinical decision making approach, which relies primarily on personal experience. See id. at 146.

32.    Id. at 167.

33.    Id. at 187.

34. The American Society of Trial Consultants was founded in 1982.

35.    LIEBERMAN & SALES, supra note 5, at 15. 36.    The American Society of Trial Consultants, supra note

The Use of ZIP Code Data in Jury Selection

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Article Published in Westchester County Bar Association – Bar Journal

Volume 34, Number 2; Fall/Winter 2007

By Gary R. Giewat, Ph.D.*

Introduction


The goal of jury selection is to minimize the likelihood of unfavorable and potentially biased jurors being seated on the jury panel. In jury selection, attorneys strive to gain as much information as possible from jurors in order to execute cause and peremptory challenges. Various formats of jury selection result in differing degrees of evaluation of prospective jurors. For instance, an optimal situation would involve pretrial research being conducted to prepare a juror profile, having supplemental juror questionnaires completed by members of the venire, the completed questionnaires being reviewed prior to trial, and the judge permitting attorneys to conduct voir-dire. In contrast, jury selection is least comprehensive in situations where the judge conducts limited voir-dire and there is no attorney questioning or supplemental jury questionnaire involved — the situation found most often in Federal Court.

Purpose


The purpose of this article is to outline ways in which attorneys and consultants can supplement voir-dire through the use of existing data, namely that of varied aggregate demographic data that may be found in the US Census Bureau’s website. While useful, demographics alone are probably the least predictive indicators of which jurors may or may not be unfavorable. However, demographics are often inter-correlated with other factors. Certain variables may provide insight (e.g., median household income and average real estate taxes as a measure of socioeconomic status) when the trial team has some indication that a certain juror profile might be less favorable. When demographic data is paired with that obtained from voir-dire, the information converges to provide a “big picture” and affords the trial team with a higher degree of confidence in the choice of strikes. The tool for gathering this information is the prospective juror’s ZIP Code.

The Data


A ZIP Code (an acronym for zone improvement plan) is a five-digit numerical Code defined by the U.S. Postal Service to simplify and expedite mail distribution. The United States is divided into 10 large geographical areas, indicated by the first ZIP Code digit. A first digit of 0 indicates the northeast region and 9 indicates the west. The second and third digits are used to divide states; the fourth and fifth digits represent local delivery areas.1 So, how is the system used by the United States Postal Service to deliver mail useful in identifying unfavorable jurors?

The United States Census Bureau collects information about the nation’s people and its economy that may be useful in identifying favorable and unfavorable jurors on the basis of aggregate data. It is well known that demographics alone have limited predictive value, but demographic data may be used to become more familiar with the jurors. Knowing the median household income, average real estate taxes, public assistance income, etc. of the areas in which jurors reside, helps to provide some insight into their circumstances and environment. For instance, to an attorney that is not familiar with a venue such as Bronx County, New York, the general socioeconomic status of residents in ZIP Code 10464 is considerably different than residents in 10474. Determination of issues such as average real estate taxes and median household income can be found in Census data, which provides the means to view a county, a venue, by ZIP Code – data that is often provided by jurors. Although a certain ZIP Code may overlap two different counties, to some degree, the majority of ZIP Codes will be found primarily within a county.

How To Search

The US Census Bureau is found online at http://www.census.gov/. The starting point on the home page is the “Summary File 3 (SF3).”

At the next screen, headed “Summary File 3 (SF3),” toward the bottom of the page, click on “Data: Access to all tables and maps in American FactFinder.”

The “Summary File 3 (SF3)” dataset will be shown on the next screen. Click on “Detailed Tables,” then on the “geo within geo” tab, which allows the user to iden- tify data by ZIP Code. This brings you to a page titled “Data Sets” “Decennial” “Census 2000.” The third item on the page will be highlighted in grey: Census 2000 Summary File (SF3) – Sample Data.” To the right, click on “Detailed Tables.”

The next screen offers tabbed options. Select the “geo within geo” tab. That brings you to a series of options to select. Make your selections and click on the “Next” button to proceed.

Here the user may click on “download”, thus opening another window. In the window that opens, the default file is Comma Delimited (.csv), a good choice for managing the data in an Excel format. At the bottom of the screen, be sure to select the box that allows for downloading the descriptive data element names, and then click on “OK” to download.

The end product of these steps is to create a spreadsheet that outlines a variety of demographic data. After the data has been downloaded, the user must edit and merge the information into a final, manageable product that is user friendly: some-thing that allows for quick reference in the courtroom setting to gain more insight into a prospective juror’s background. Exactly how the data is used is left to the imagination and skill of the attorney or consultant; how the trial team has determined, a priority, which jurors it believes are least favorable. In determining which jurors have the highest priority for strikes, it might be useful to highlight those ZIP Code areas that are less favorable to the trial team.

ZIP Code data, paired with Census data, may be a valuable source of information to increase the effectiveness and thoroughness of jury selection. In summary, this involves identification of the main demographic issues of interest, gathering data from the US Census Bureau’s website, and contrasting varied demographic features with the ZIP Codes of prospective jurors.

ENDNOTES


1 http://www.britannica.com/eb/article-9078401/ZIP-code 2 For instance, a ZIP Code in some instances may straddle two different counties; ZIP Codes do not necessarily follow boundaries such as town or county.

Alternative Damage Awards: Worth the Risk?

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BY GARY GIEWAT, PH.D., STUART SIMON, & ALLAN CAMPO*
Published in the Westchester Bar Journal Fall/Winter 2009 Edition:

In civil litigation, defendants are often faced with the question of whether it is wise to offer alternative damage awards as part of the defense. In instances where the defendant concedes liability, there is little question that offering alternative damage calculations is usually warranted. But, in instances where the defense has a strong case or when liability is not clear cut – a “close case”- what is the best course of action? When should alternative damages be offered?

The discussion has persisted since 1985, when a Houston jury awarded a Texassized $10.5 billion judgment to Pennzoil against Texaco, claiming that it sabotaged Pennzoil’s contract with Getty Oil. Many legal experts believed the jury award to be disproportionate to the injury. Post-trial interviews with members of the jury revealed that jurors felt they had no choice but to use the plaintiff’s damages evidenceas a basis for their verdict on damages, and that formulating an alternative amount was not proper given the judge’s instructions to base their verdict on only what was presented in court.1 The risk of such an outcome serves as the reason why some defendants believe that providing an alternative award recommendation to the plaintiff’s request is something to be considered, especially if the plaintiff’s demand is a large number.

During mock trials, surrogate jurors sometimes view alternative damage awards offered by a defendant as acknowledging or conceding responsibility for an injury, even if the defendant has vigorously contested liability. For example, in a product liability case a surrogate juror asked, “If it wasn’t defective, why did they [defendant corporation] suggest money at the end?” The purpose of this article is to review the research concerning how jurors determine damage awards and discuss when it might be advisable for a defendant to offer an alternative damages recommendation at trial.

SOCIAL SCIENCE RESEARCH & DAMAGE AWARDS
How and by what procedure do jurors and juries determine damage awards in civil litigation? Research often points to the phenomenon of “anchoring,” which is based upon jurors’ use of a suggested award, the plaintiff’s target number (“PTN”).

In the context of damage awards, a PTN serves as the anchor or a holding point, and jurors subsequently use that value as the reference point for determining damages. Assimilation will occur if jurors view the suggested award as reasonable and proper. However, there will be a contrast effect — a lesser award — if the PTN is viewed as excessive in the eyes of jurors.

In the Chicago Jury Project from the 1950s, Dale Broeder2 was among the fi rst to examine the infl uence of PTNs. In six of the seven cases where the jury rendered a verdict favorable to the plaintiff, Broeder found that a PTN was infl uential in the final damage awards. In essence, the PTN was a point of reference from which jurors calculated damage awards. It has become common to refer to this point of reference as a damages “anchor.”

More recent research3 serves as a robust example of the anchoring effect as it relates to jury damage awards. It has since been replicated numerous times, with researchers routinely finding that damage awards are shaped and directed by the damage requests of the plaintiff. The primary fi nding from this more recent research is: “The more you ask for, the more you get.” This, of course, refers to the chief finding that plaintiffs can promote larger jury awards simply by making larger requests.

While several studies confirmed this robust fi nding, there are limits to the effectiveness of the PTN. While the pervasive fi nding is that the more a plaintiff asks for, the more he receives, it is not without exception. Some studies have revealed contrast effects related to PTNs.4 These researchers found that extreme PTNs resulted in a “boomerang effect,” or a backfi re. In such instances, participants were more likely to provide a larger award with a lower, more reasonable anchor than with an extreme and inflated anchor.

Research from the social sciences is useful in understanding the effi cacy of defendant alternative award recommendations. Over the past 40 years psychologists have studied this heuristic, or mental shortcut, usually calling it anchoring or “adjustment bias.” Anchors serve to simplify judgments that involve uncertainty or have little to no objective basis. People often rely on an anchor when making quantitative judgments.5 While new information (an alternative award) may lead to adjustments away from the anchor, the resulting response (i.e., damage award) will still have been influenced by the location of the anchor on a numerical scale. When judgments are made in the context of an anchor, one of two things may occur. If the anchor falls within a range of alternatives the decision maker believes is reasonable, assimilation will occur, and the response is drawn toward the anchor. If the anchor is not within the range of acceptable responses, the response is displaced away from the anchor, a contrast effect.

DEFENDANT ALTERNATIVE DAMAGES: IS A COUNTER-ANCHOR EFFECTIVE?

It is well-established that the PTN proposed by plaintiffs has a biasing effect on juror damage awards. While much of this research has focused on PTNs and caps alone, there have also been some studies that examine the infl uence of defense counter-anchors or alternative damage awards. The consensus of this research is that alternative defense damages can mitigate plaintiff damage requests in certain circumstances. Generally, if an alternative damage award is provided and is perceived as reasonable, jurors will assimilate that value and reduce the damage award. However, if the alternative damage award is viewed as unreasonable or excessively small, a contrast effect will likely occur and damage awards may increase.

Raitz and colleagues6 incorporated defendant alternative damage awards in their research examining the influence of expert testimony. The research design involved: a control group where no recommendation was made for damages by either party; a condition that involved plaintiff’s economist offering opinion on damages while the defense attorney countered with an amount that was approximately half the plaintiff amount; and a condition where damages were proffered by opposing experts. The counterexpert condition was the most effective in reducing the damage awards. The data from this study revealed that when opposing experts offered different figures, 21% of participants provided awards that matched the plaintiff’s figure and 20% awarded the defendant’s recommendation – a clear example of the anchoring effect.

Using the same stimulus materials as Raitz and colleagues, similar research7 also evaluated the effects of PTNs and defense alternative damages. However, this research incorporated a deliberative component with group decision making as opposed to individual verdicts. The results here were not as extreme as those found by Raitz, et al., suggesting that deliberations attenuated the effect to some extent. Also, there were fewer awards that matched the plaintiff’s request and none of the awards matched that of the defense’s alternative. However, in the condition where opposing experts provided damage recommendations, the average award was almost exactly midway between the suggestions of the experts. The authors conclude that jury awards may be reduced when the defense presents alternative damages.

Marti and Wissler8 conducted research that involved manipulation of plaintiff and defense award recommendations. Generally, their findings are consistent with previous research in which it was found that plaintiffs who asked for higher awards got them. Defense recommendations also were found in this research to moderate damage awards. Furthermore, these researchers concluded that, as defense recommendations increased, the variability in awards decreased. The research suggests that jurors view the defense recommendation as the absolute minimum award and negotiate upwards from that point.

Accordingly, research from the social sciences provides strong evidence that defense alternative damages serve as a counter anchor and can effectively mitigate PTNs. However, much of the research falls short because it does not consider the effect of an alternative damages number upon the jurors’ perceptions of defendant liability.

DEFENDANT LIABILITY
From a legal perspective, liability and the amount of damages awarded are two separate and distinct decisions to be made by jurors, and the evidence relevant to one should not influence the other. The reality, however, is that this is not the case in jury decision-making. As Ellis9 points out, when liability evidence does not clearly favor one side over another, jurors may look for information to assist in their decision.
An additional piece of information they might consider in making a decision regarding liability is the defense recommendation for damages.

The dynamics behind jury and juror decision making in awarding damages is complex and interacts with many variables such as severity of the injury/claim, the type of damages sought (e.g., economic, non-economic, and punitive), varied extralegal factors (plaintiff race or gender, defendant wealth) and defendant liability, or juror perceptions of liability. Ellis highlights the dilemma of the defendant who contests liability, vigorously defending liability for the plaintiff’s injuries, but then advises jurors as to what a proper damage award might be.

Do defendant alternative damages implicitly lead jurors to believe the defendant is liable? Is arguing damages worth the risk? Discussed next is the literature that addresses the impact of defendant alternative damages on perceptions of liability.

THE INFLUENCE OF ALTERNATIVE DAMAGES ON PERCEPTIONS OF LIABILITY
Plaintiff injury severity has a strong impact on judgments regarding liability, as demonstrated by Bornstein.10 This research underscores what many litigators know, that liability decisions are strongly affected by jurors’ desire to compensate a plaintiff for his/her injuries. In one experiment, Bornstein held liability evidence constant, but varied the severity of the injuries. The outcome was that jurors favored the plaintiff on liability when the injuries were more severe, but were less favorable toward the plaintiff when the injuries were less severe. A second experiment was conducted using the same scenario. However, jurors were not afforded the opportunity to award damages; their only task was to determine liability. When there was no opportunity to award damages in this second study, the results revealed no difference in the frequency of liability verdicts between severe and less severe injuries, suggesting that jurors may ignore the distinction between liability and damages in order to provide compensation.

In research focused on bifurcated trials, Horowitz and Bordens11 presented liability and compensatory damages evidence to participants in either a unitary presentation or in a bifurcated format, so damages evidence was presented only if they rendered plaintiff liability verdicts. Data in this research revealed that juries assigned more responsibility to the defendant in the unitary trial than in a bifurcated setting, and that plaintiff verdicts were more frequent, suggesting that presentation of evidence on damages influenced perceptions of the defendant’s liability.

In the sole study to date that examined the role of defense damage recommendations on liability verdicts, Ellis12 found that jurors were more likely to find for the plaintiff when the defendant made a recommendation than when it did not. However, the effect of the defense recommendation on verdicts depended on how strong the plaintiff’s liability evidence was – an interactive effect. When the evidence favored a plaintiff verdict or did not favor either side, the liability verdicts were unaffected by the defense recommendation. On the other hand, verdicts were affected by the presence of a defense award recommendation when the liability evidence favored the defendant. When the evidence was favorable to the defense and the defense did not provide an award recommendation, only 20% of jurors found for the plaintiff.
But, when the evidence favored a defense liability verdict and the defense provided an award recommendation, the verdicts were more likely to favor the plaintiff than when the defendant made no award recommendation. When the defense made a low, moderate, or high recommendation, 40%, 33% and 50% of jurors respectively favored the plaintiff on liability. Thus, in the scenario of a strong liability defense, defendant alternatives to the PTN led to a higher rate of plaintiff verdicts.

This section addresses the practical application of the theory, and the factors to be considered prior to implementation. What is the woman on the street reading, watching, learning, thinking and saying about corporations, about defendants? Keeping in mind that the prevailing research on the subject was done during different periods; namely, during the post-war economic boom of the 1950s, at the height of the Enron scandal, in the midst of the Arthur Andersen accounting debacle and during turbulent economic times, one must consider the status quo prior to advancing any theory. Currently, we face the Madoff scandal, and the associated failure of those entities responsible for supervision, control and regulation of that business. We are faced with the mortgage and banking crisis and the rapid decline in our economy’s productivity and overall value. The status quo of American’s perception of the climate of corporate America is the broad foundation for standing to make the alternative award presentation. With the understanding of the broad status of the corporate defendant’s place in the current climate and culture, we can move to the specific standing of the individual defendant and its standing to offer the alternative anchor.

Simply, a defendant attempting to anchor jurors with an alternative measure of damages in an adverse climate and culture for corporations must defy the current pre-dispositions of jurors and appear to be the “7UP of corporations,” or the Un- Corporation. If the status quo among jurors is that corporations are engaged in deceptive practices, closed to outside scrutiny, underhanded, self-interested and even committing fraud, then the goal prior to introducing the alternative damage theory is to convey the openness, transparency and genuine commitment to good business practices of the defendant corporation. Standing is real, and so should the basis befor achieving it. Once standing is established so too is the expectation among jurors that the theory to be espoused does not exceed the foundation. The alternative scenario should match the defendant.

SUMMARY & CONCLUSION
The literature from the social sciences makes clear that jurors often anchor their damage awards on the basis of the PTN. Furthermore, a counter anchor from the defendant, or alternative damage awards, also appears to mitigate the influence of the PTN on the award provided by a jury. However, there is evidence of an interactive effect between defendant alternative damage awards.

Based on empirical research and subsequent field experience13 Ellis suggests that in the context of a weak liability defense, it is advisable to make a counter recommendation regarding damage awards via vigorous cross examination of plaintiff damages expert(s) and testimony from a defense damages expert. In the context of a strong liability defense, it is best not to offer an alternative damage award, as it has a negative effect on perceptions of defendant liability.

When the strength of the liability defense is moderate (50/50) the defense should evaluate carefully how to argue damages, if at all. Some “on the fence” jurors might be pushed in favor of the plaintiff. There should, however, be a vigorous attack on the plaintiff’s damages via cross examination. This is what we call “moving the anchor.” Rather than providing a defendant’s alternative to the plaintiff’s number, the goal here is to drive the plaintiff’s number down. This approach can sometimes expose an over-reaching plaintiff’s damages case to the contrastive effect discussed earlier. The jury may refuse to assimilate it, finding it unreasonable.

Moving the anchor is also the desired approach in a case in which the defendant’s case on liability is strong, but is nevertheless offset by the prospect of a catastrophically injured plaintiff for whom the jury may feel great sympathy. In such an instance, a strong liability defense may still not avail the defendant of a favorable verdict. The middle course must be taken, with a strong cross-examination of the plaintiff’s expert and a re-capitulation of that cross-examination in the closing to drive home the message. Similarly, the defendant may be an unpopular company in a difficult venue, making even a strong liability defense a weapon of little effect with the jury. For such occasions, a move-the-anchor approach to damages may also be indicated. To carry this thought to its logical end: It is possible that a defendant with a strong liability defense has learned from jury research or from experience that – notwithstanding the good defense – a plaintiff’s verdict is almost certain to eventuate. In an instance of this sort, a full-on alternative damages strategy should be considered.

If alternative damages are offered, it must come from expert opinion and not simply attorney summation. Furthermore, if an alternative value is offered it is best not to offer one that is especially low so that jurors do not contrast it with the PTN, thus providing an even larger award. Any recommendation must also be accompanied by language that provides a rationale as to why the alternative figures are being provided to minimize the perception that the alternative award is perceived as an admission of liability. The goal is that jurors will perceive the recommendations as an indication of what the defense believes is appropriate, just as the plaintiff request is an indication of what they believe is appropriate. Jurors see both sides’ recommendations as starting points in a negotiation – as two anchors.

Endnotes1 Greene, E., On juries and damage awards: The process of decision making, Law and Contemporary Problems 52, 225-46 (1989).2 Broeder, D., The University of Chicago Jury Project, NEB. L. REV. 38, 744-60 (1959).3 Chapman, G.B., & Bornstein, B.H., The more you ask for, the more you get: Anchoring inpersonal injury verdicts, Applied Cognitive Psychology 10, 519-40 (1996).4 See Chapman, G. B., & Johnson, E. J., The limits of anchoring, Journal of Behavioral DecisionMaking 7, 223-42 (1994); Marti, M.W., & Wissler, R.L., Be careful what you ask for: Theeffects of anchors on personal injury damages awards, Journal of Experimental Psychology:Applied 6, 91-103 (2000).5 Greene, E. & Bornstein, B.H., Determining Damages: The Psychology of Jury Awards,Washington, D.C.: American Psychological Association (2003).6 Raitz, A., Greene, E., Goodman, J. & Loftus. E. F., Determining damages: The influence ofexpert testimony on jurors’ decision making, Law and Human Behavior 14, 385–95 (1990).7 Greene, E., Downey, C., & Goodman-Delahunty, J., Juror decisions about damages inemployment discrimination cases, Behavioral Sciences and the Law 17, 107-21 (1999).8 Supra note 5.9 Ellis, L., Don’t find my client liable… but if you do: Defense recommendations, liabilityverdicts, and general damage awards, Unpublished Doctoral Dissertation, University ofIllinois, Chicago (2002).10 Bornstein, B.H., From compassion to compensation: The effects of injury severity on mockjurors’ liability judgments, Journal of Applied Social Psychology 28, 1477-502 (1998).11 Horowitz, I.A. & Bordens, K.S., An experimental investigation of procedural issues incomplex tort trials, Law & Human Behavior 14, 269-285 (1990).12 Ellis, supra note 5.13 Personal communication with L. Ellis, Aug. 10, 2007.