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LATEST ARTICLES
By Gregory S. Cusimano
Tort
Reform's Sleight of Hand: By David A. Wenner J.D.
No political party holds a monopoly on personal or family values. The principles on which the framers of American democracy and civil justice based our Constitution are ancient. Fairness, justice and personal responsibility form the bedrock of civilized society. Trial Lawyers are and must be the guardians of these values.
An organized, sustained and systematic campaign toward moral hegemony and imperialism is taking place in America today. Spearheaded and funded by big business and insurance companies working together under the guise of "tort reform," this campaign is taking the form of an assault on the public psyche that seeks to frame cultural and moral values as virtues belonging to only one class of citizens. Portraying themselves as the standard-bearers of moral authority, these groups skillfully use propaganda to create the impression that they are "Of the People," and that they speak "For the People." In truth, their interest lies only in protecting one class of people: corporate wrongdoers who want to evade accountability. Trial lawyers must be champions of fairness, justice and personal responsibility, both in the courtroom and in the community. It is time for trial lawyers to stop complaining and use their collective resources to get the word out that we are the guardians of the cultural and moral values that every citizen holds dear. Who will speak for justice in America today? Who will stand up for fairness for all who enter a courtroom? Who will preserve our system of justice, which centers on the interests, needs, value, capacity and worth of every citizen? Who will oppose the well-funded efforts of the powerful few to decimate the rights of the many? Who will ensure that big business is held accountable for its misconduct? Who will expose the hypocrisy of those who preach personal responsibility, but do not personally adhere to the standards they set for others? Recently, I wrote a chapter on "Juror Bias" for the treatise of the Association of Trial Lawyers of America (ATLA) and West Publishing. My observations were intended to help trial attorneys identify and select unbiased jurors--individuals who are likely to listen to the evidence with open minds, uninfluenced by preconceptions of any kind, and make fair judgments based on the facts presented in court. My goal was to help trial lawyers identify jurors who are likely to apply standards of personal responsibility and accountability equally to both sides, ensuring a fair trial for both plaintiff and defendant. In the chapter, I set forth principles for jury selection based on observations gleaned from years of experience practicing law and researching jury decision-making. My research with collaborator Gregory S. Cusimano resulted in development of a Jury Bias Model™™ based partly on the perceptual lenses that jurors apply in deciding cases--lenses that often bias juror decision-making against plaintiffs, their lawyers and the civil justice system. This widespread bias is the result of a sustained crusade by big business and big insurance to persuade jurors to be far more suspicious of plaintiffs than of defendants. The ultimate goal is to create prejudice that is so engrained in the juror pool that the risk of a jury's holding corporate wrongdoers accountable is greatly reduced. The Jury Bias Model™ teaches trial lawyers to turn the spotlight on the defendant and persuade jurors that the plaintiff and his lawyer hold the values of fairness, justice and personal responsibility sacrosanct. The ATLA chapter I authored was written, naively perhaps, without concern that the content might be hijacked, twisted and thrust into the public domain for political gain. That, however, is exactly what occurred. When ATLA published the "Juror Bias" chapter, the well-financed wheels of the tort reform propaganda machine began to spin. Over the past several weeks, a contingent of advocates for right-wing news organizations published deceptive stories dissecting and distorting my message to fit their own political agenda. Zeroing in on one small section of my 26,854-word chapter, these so-called "reporters" used a few sentences out of context and grossly misrepresented their meaning. Not surprisingly, when traced to their sources, these pseudo-journalists proved to be paid consultants for ultra-conservative counterfeit news organizations such as the White House Writers Group, the National Review and William F. Buckley's Media Research Center. The melee began with the Republican Study Committee's quoting a portion of the chapter on its website . Congressman Tom Tancredo felt compelled to issue a press release on this apparent social crisis, using quotes from the chapter and arguing that "It's Time: De-Fang Trial Lawyers." Thereafter, some 20 conservative organizations perpetuated the story on the Web, and such organizations as CNSNews.com , the National Review and the American Spectator wrote opinion pieces. Then, some legitimate organizations picked up this distorted story. The Las Vegas Review-Journal , the Rocky Mountain News , the Charleston Post and Courier and the Wall Street Journal published editorials. The time and energy these groups spent railing about my "Jury Bias" chapter is quite amazing, particularly considering the grave issues that our country faces today. It is incredible that these advocates of a conservative worldview would invest so much time investigating the issue, much less be compelled to publish their opinions about a professional article on trial practice. Until now, I never comprehended just how well coordinated and organized the groups who want to put trial lawyers out of business truly are.
Tort Reform's Scurrilous Tactics As ATLA members know all too well, pro-tort reform organizations have poured millions and millions of dollars into an ongoing, nationwide media campaign designed to curtail Americans' rights to petition the courts when harmed by defective products, corporate wrongdoing or careless doctors. Over the past several years, tort reformers have enjoyed tremendous success in state legislatures, passing laws to make it progressively more difficult for ordinary citizens to petition the courts. It is all part of tort reform's nationwide, systematic campaign to dismantle the basic tenets of the American civil justice system. Tort reform's latest tactics--glaringly exhibited in their attacks on me--are especially onerous.
First, the purveyors of these poison-pen stories fail to disclose their own biases. They shroud themselves in the guise of legitimate journalists and objective news organizations, masking the fact that they are demagogues whose commentary is directed and underwritten by big corporations. With chilling cynicism, tort reform exploits the religious faith, family values and personal responsibility that are the bedrock of most Americans' value systems in a nefarious bid to swindle them out of their constitutional rights. The tort reform spin doctors who attacked my comments on juror bias in the ATLA treatise charged that I wrote a guidebook advising trial lawyers to reject potential jurors who reveal in pre-trial questioning that they are religious, embrace traditional family values or believe strongly in the concept of personal responsibility. That simply is not true.
What I did write is that many years of scientific research and courtroom observation suggest that individuals who hold extreme views about personal responsibility should not serve on juries in certain trials under the fundamental laws of fairness that this county has demanded of jurors since its formation. Further, I observed, it is possible in today's environment that some people's religious beliefs might preclude their being fair, objective jurors. Gary Bauer recently said on "60 Minutes: " I'm not accusing my Democratic friends of being ungodly. But, I'm just saying, statistically, people that attend church frequently, at least once a week or more--two-thirds of them vote Republican. Those voters that say they seldom, if ever, attend religious services--two-thirds of them vote Democratic." Statistically, people who vote Republican are more inclined to favor tort reform and more likely to find for the defendant. Apparently, analyzing religious behavior is morally acceptable for rallying a political base or winning political office, but not for obtaining a fair trial. A potential juror who harbors extreme attitudes that interfere with fair evaluation of the evidence should be excluded from a jury. End of story! Indeed, having a strong opinion about religion, personal responsibility or any other matter does not mean a juror is a bad person or that he can never be fair and impartial. Each of us has our own biases that interfere with decision-making, and if those biases compromise either the plaintiff's or the defendant's right to a fair trial in a certain case, then we should not serve on that particular jury. A good juror for either side is one who will decide the case based on the strength of the evidence, rather than on the status of the parties. A juror who adheres strongly to a value-driven precept--such as the belief that it is morally wrong to bring a claim for the death of a child--cannot possibly be unbiased. If the tables were turned and corporate counsel were faced with a growing jury pool that believed all manufacturers should pay every time their products caused injuries, regardless of the facts of each specific case, corporate America's protests would be deafening. Suppose the lunatic Osama bin Laden was captured and put on trial for the mass murders of 9/11. Suppose, as well, that a prospective juror disclosed during jury selection for his trial that her religious beliefs would never allow her to impose the death penalty, notwithstanding the heinousness of Bin Laden's crimes. Most Americans would demand that she be struck for cause. Despite widespread public hatred for Bin Laden, however, this potential juror should not be vilified. Clearly, she should not be forced to choose between her religious beliefs and her public service as a juror. Instead, the justice system should honor her feelings, thank her for her veracity and free her to serve as a juror in another case where she could be unbiased without compromising her religious values.
When the attitudes and values of prospective jurors are respected during voir dire, and frank discussion about biases is encouraged, juries can be seated that are fair to both the plaintiff and defendant. This open process reinforces the integrity of the justice system and the public's confidence in it. Clearly, the message I intended to convey in my ATLA chapter was not an anti-religious message, an anti-personal responsibility message or an anti-anything message. It was a just, fair message.
Distorting the Concept of Personal Responsibility Pretrial questioning of potential jurors, voir dire, is a practice rooted in the genesis of the American civil justice system. Its purpose is to identify people who hold biases that may restrict their ability to be fair jurors. Sometimes, bias is revealed in statements about religious beliefs, sometimes in observations about personal responsibility or in dozens of other indicators that both plaintiff and defense attorneys try to uncover. Screening jurors for bias is an interpretive collaboration at the crossroads of law, psychology, linguistics, marketing, rhetoric, communication, philosophy, economics and every other discipline that explains decision-making and causal attributions. Perhaps the most important ingredient in successful jury selection is a finely tuned intuition. The importance of eliminating bias from the courtroom cannot be overemphasized and long has been recognized by our Nation's greatest statesmen and jurists. More than two centuries ago, Chief Justice John Marshal wrote, "The main reason the jury system is respected is the public expects a juror to be unbiased." Unfortunately, that respect is waning--not by accident, but by design. Tort reformer proponents guilefully use populist rhetoric and themes of patriotism, religion and personal responsibility to appeal to Americans' most basic values and portray plaintiffs as lazy individuals who want something for nothing. Yet, their real purpose is to stifle individual rights and satisfy their own corporate greed. With their spurious rhetoric against plaintiffs and trial lawyers, tort reformers actually seek to mobilize Middle America to decimate its own constitutionally guaranteed rights. Today, we live in a country where small groups of elitists are working tirelessly to dominate the public dialogue about personal responsibility. We are engaged in a cultural war, and the trial lawyer is at ground zero. The concept of personal responsibility is at the heart of every story trial lawyers present to juries. The outcome of each trial is tied inextricably to how the jurors explain behavior and make causal attributions. Jurors must decide what the caused plaintiff's injuries. This requires them to assess the plaintiff's culpability. If cultural prevarication requires that every risk of injury be anticipated, then without exception, the plaintiff will be judged at fault. This standard of personal responsibility is extreme--far more extreme than what the law requires or most lay people demand. In my "Juror Bias" chapter, I identified those who hold such standards as individuals with a "high need for personal responsibility." These people are far outside the mainstream and must be excluded from juries in tort cases because they simply cannot be fair, impartial jurors. Consider this extremist view of personal responsibility, which bestows immunity on all those who negligently injure others and eliminates the tort system completely: Our hypothetical injured party, therefore, is made whole without having to pursue any tort remedy, at least with respect to major monetary damages. Such an individual has exercised personal responsibility: recognizing in advance the possibility of incurring medical expenses or lost wages, from whatever cause, and choosing to provide for that eventuality by purchasing appropriate insurance protection. Such an individual deserves our approval, if not our applause. This leads to the ultimate thesis of personal responsibility as applied to tort law and as that term is used in this Article. If all persons exercised personal responsibility, would there be any real need for tort-based compensation? The answer is no. Personal responsibility, carried to its logical conclusion, means that each individual should bear the responsibility for those personal injury losses that she suffers. Hence, the appropriateness of the term "personal responsibility." It is "personal" because individuals look to themselves as the source of provision, not casting about to others or to society at large; it is "responsibility" because it imposes on individuals an obligation to take appropriate and available steps to provide for their own future losses.
Publicizing Cases to Alter Public Opinion Frankly, we trial lawyers have an image problem. The way to resolve it is to move beyond our casework with an ongoing public relations effort geared toward transforming the good that we do for our clients into lasting change for our communities. By making the public aware of the tremendous societal benefits that we engender through our work, we can publicize the trial lawyer's true role--guardians of personal responsibility, justice and fairness. Just as we routinely shine the light of truth on negligence and wrongdoing on behalf of our clients, trial lawyers must focus the beacon of public awareness on the real truth about the good we do every day. Our work is important, it impacts society positively, and it is newsworthy. We must implement a broad, comprehensive plan for countering the assault on our profession and the justice system. The overlying goal of our efforts must be to revamp our image in the public psyche. That means spending time and money to position trial lawyers as the champions of American values that we are. If the 1980s begat an explosion of lawyer advertising, the new millennium should usher in the age of lawyer public relations.
All politics is local. We must begin by getting the word out in our own communities about the positive social changes that our work engenders. At the heart of every case we prepare is a strong argument about why the case is important and the good that will come from finding for the plaintiff. Why stop at telling the jury? Why not tell the media, while we're at it? Every case we prepare is a potential community action project if we make it a point to articulate its benefits for the community and society as a whole. In this way, every trial lawyer becomes a foot soldier in the war to restore the image and usefulness of plaintiffs and their counsel in democracy's social fabric. It is not an exaggeration to say that trial lawyers have been conscripted into a cultural battle for the soul of this country. We have a choice: Sit back and do nothing, or fight back against the imperialism of a privileged few who use slick rhetoric to frame the issues to their benefit and the detriment of plaintiffs. If we are to overcome their incursion, then political activism cannot be optional. If we remain silent, the privileged ruling class will continue to expand their powers to dictate how personal responsibility and accountability are applied in America.
Using Tort Reform's Themes and Rhetoric Against Them
In my chapter on "Juror Bias," I suggested that trial lawyers can stay one step ahead of big business and big insurance by systematically examining the rhetoric that tort reform groups use to frame their messages and then using these analyses to our advantage--in jury selection, in presenting our cases and in redefining our image. By following the Jury Bias Model™, trial lawyers can co-opt the sermonizing that tort reformers have used against us so effectively and hold them accountable for their words and deeds. It is time for the ruling elite, who deign to define morality in the courtroom for the purpose of immunizing themselves against verdicts, to get a taste of their own medicine. With every case we try... with every jury we select... in every courtroom across America... we can frame the debate and expose our opponents' corporate greed and corruption. The Jury Bias Model™ teaches the trial lawyer how to avoid the traps that they set for us. Every instance in which a defendant escapes accountability as a result of tort reform's ongoing assault on plaintiffs represents an unearned bonus for the privileged few. When a jury applies the standards of personal responsibility fairly, "We the People" reject corporate welfare propagated on the backs of citizens. When a jury speaks, the People speak--a prospect that frightens special interests. True reform occurs when our Constitution is upheld and the American people are empowered to speak their will. That is why tort reform advocates are desperate to perpetuate the myth of a trumped-up litigation crisis. We should be mad as hell that they are characterizing our clients--and us--before we ever set foot in court! When trial lawyers utilize tort reform advocates' own strategies against them, when we adopt their rhetoric and themes to identify bias among potential jurors and call attention to what big business and big insurance really are up to, they don't like it. That's the real reason why they took issue with my chapter. It's why they complain loudly when their schemes are exposed, revealing plaintiffs and their counsel to be the real champions of fairness, justice and personal responsibility. Trial lawyers must be forceful and unflagging in presenting these messages in the courtroom. We must own the cause for justice. We must own the cause for fairness. We must own the cause for personal responsibility. It is not enough just to be the first to mention these values--we must weave them into every facet of our trial strategy. For instance, the personal responsibility theme can be incorporated directly and indirectly into the way we tell our clients' stories in our opening statements. Obviously, we can't tell jurors what to think, but we can tell the story in a way that allows jurors to conclude that it was the defendant--not the plaintiff--who acted irresponsibly. We can underscore the greedy choices that our big-business opponents made at the expense of the plaintiff and the community:
Fairness dictates only that the defendant must account for its actions with reasonable compensation, but the working definition of reasonable depends on what is acceptable in a particular community. A focus group can help you determine a particular community's views on this all-important quantity. This is critical because, once convinced of the defendant's negligence, jurors want guidance from the plaintiff's attorney about how to arrive at a fair damage award. They also expect lawyers to ask for twice as much as they really expect. Trial lawyers should not overreach in asking for damages; if we do, we may miss an excellent opportunity to own the norm of reason and fairness.
The Uniter: Bush On Tort Reform It's a wonder any plaintiff in America today can get a fair trial. President Bush has united the mighty forces of business and industry against the average American, undertaking a veritable jihad against plaintiffs, crusading for corporate immunity, attacking the civil justice system and denigrating trial lawyers. His goal is to eliminate tort-based lawsuits completely. Consider a few of his public comments:
The President has crisscrossed the country, faithfully carrying the anti-plaintiff messages of his big business contributors. After hearing the mantras repeated ad infinitum--by a man who cloaks himself effectively in piety while systematically eviscerating constitutional rights--many people have begun to believe him without demanding proof. He implies that lawsuits are a burden on the economy, workers, small businesses, and doctors. Almost evangelically, Bush proclaims the price for the "sins" of "greedy" trial lawyers and plaintiffs: Higher prices for consumers, he declares! Clogged courtrooms! Companies going out of business! Lost jobs! Hospitals shutting down! Doctors closing their practices! Economic ruin! How is that for imagery in the minds of jurors when the plaintiff enters the courtroom? Bush's message: Lawsuits are unfair, corporations are icons of virtue and frivolous lawsuits will ruin your life. And who is serving on our juries? Not CEOs. The average juror is a small business owner who has been frightened into harboring real fears about the possibility of being sued. A worker who fears he'll lose his job. A parent who worries that rising prices will make it harder to feed, clothe and shelter her family. How can a juror who has been brainwashed into believing the Bush-promoted tort reform rhetoric judge any plaintiff's case fairly? That's why it's critical for trial lawyers to distinguish themselves and their clients from the stereotypes that Bush and his ilk have created. We need to draw this distinction early in trial, priming jurors with the message that we are honorable counsel, the plaintiff is honest and responsible, and the plaintiff's claim against the defendant is justified and fair.
The Power of the Value-Driven Bias Ultimately, the tort reform movement is hyping a promoting a lie of mammoth proportions, hyping a non-existent crisis and cultivating its own bias among Americans--the belief that an individual who holds strong religious values and believes in the concept of personal responsibility does not file lawsuits. That any individual who has been harmed by a defective product, lax corporate safety measures or an incompetent doctor or hospital should have been able to foresee and avoid the danger. Tort reform advocates a mindset that expresses and confirms tort reform's anti-plaintiff, anti-lawyer and anti-lawsuit mantra and leaves no allowance for questioning, confirming or individual thought.
Where bias exists, there is not, shall we say, a fair and balanced evaluation of the facts. No matter what its origin or subject, regardless of whether it exists for or against either party in a lawsuit, bias represents a departure from accuracy, objectivity and balance, and works against the probability of either party's receiving a fair, impartial trial on the merits. That is why tort reform is engaged aggressively in injecting its own venomous bias into the American psyche and jury pool. When a juror's bias is value-driven, it is so strong, so engrained as to make his decision a fait accompli--for him, the trial is over before it ever begins. The little guy who is injured, through no fault of his own, by the reckless acts of others is burdened with a perception of personal responsibility that ignores the reality of how people and corporations actually behave. For this reason, tort reformers use value-based assertions in a drive to establish a firm anti-plaintiff bias. It is easy to understand their motivation: Big corporations and insurance companies want trials to be over before they begin in order to avoid corporate accountability.
By any measure, tort reform has enjoyed extraordinary success embedding its own biases in the American psyche. The movement has exploited the themes of family values and personal responsibility to the extent that some people believe that anyone who seeks redress in court is irresponsible. There is an expanding "blame-the-plaintiff" mentality in America that, more and more often, lets corporations go unconstrained, undeterred and unaccountable, and robs individual citizens of justice and their constitutional rights. Without question, the anti-plaintiff rhetoric of the tort reform movement plays a significant role in shaping the predispositions of potential jurors in personal injury cases. The themes and metaphors used by the movement negatively influence juror perceptions about plaintiffs, their lawyers and the justice system, often creating an us-against-them mentality. With corporate mega-bucks at stake, the one thing that big business fears is a jury. That is why: Defectively designed cribs no longer strangle infants; flammable children's pajamas have been taken off the market; once-harmful medical devices have been redesigned; automobile fuel tanks have been fortified; cancer-causing asbestos no longer poisons homes, schools and workplaces; and farm machineries have safety guards. Can there be any justification for protecting these wrongdoers, while making it difficult or impossible for innocent families to receive justice?
When the tort reform propagandists' attacks against me began in earnest, I wondered: Why?? With all the books, articles and editorials that have been authored, and all the commentary on the airwaves by those of us who seek to preserve every American's constitutional right to petition the courts--why has the Jury Bias Model™ been singled me out for such vicious attacks? The answer, I believe, lies in a section of my ATLA chapter that has gone unmentioned by tort reform's media mercenaries. After explaining in detail each of the five basic types of anti-plaintiff bias instilled by tort reform propaganda--including specific examples of tort reform themes and rhetoric--I set about suggesting how trial lawyers can use these same themes and rhetoric to their advantage in voir dire to help identify prospective jurors who may hold anti-plaintiff biases.
Suddenly, the tables turned! Tort reform propagandists have done such a thorough job of implanting value-driven biases in many potential jurors that it not only is virtually impossible for those individuals to overcome their bias in a jury situation, but it also is virtually impossible for them to conceal their bias in pretrial questioning. As a result, the themes and rhetoric of tort reform act as triggers that evoke strong reactions in these individuals, exposing their bias before they are selected as jurors. By the same token, I explained how plaintiff's lawyers could use the same approach in trial arguments and communications to minimize negative effects and overcome juror concerns. Not having been invited to sit in on any tort reform strategy sessions, I cannot say definitively that tort reform didn't foresee the possibility of trial lawyers' using tort reform themes in reverse, but I'm fairly certain that it wasn't in their plans.
If I thought we were on to something before, now I know we are. There is a grave and gathering fear among tort reform's ranks that trial lawyers have discovered a strategy to hobble them... a way to use every deceiving word that proceeds from their mouths, every bit of twisted rhetoric and convoluted philosophy against them in an effective counter of their crusade against the Bill of Rights. They don't like it when the weapons of mass destruction that they created are used against them.
In the coming months, we can expect a sharp escalation of tort reform's heinous brand of value-driven rhetoric. With the presidency and so many seats at stake in the Congress and state legislatures, and with Americans' growing dissatisfaction with the domestic and foreign policies of the current Administration and its allies, tort reform will make an unrestrained effort to claim the high moral ground and advance its agenda. The assertion of a monopoly on values is the only remaining citadel of the party in charge, and values are a strong deciding factor on which many Americans will not compromise their votes.
The coming months pose a great opportunity for those who know that strong values and principles are the dominion of no party, ideology or group. We must borrow a page from the strategy book of the right and take our case directly to the people. I have suggested that we use tort reform's rhetoric and themes against them in the courtroom, and I urge the same tack in the media. If we keep our messages clear, focused and positive, we can expose tort reform's sinister tactics and cynical claim of a monopoly on American values and earn the support of the many Americans who will resent the insinuation that they are lazy and irresponsible, if they don't fit tort reform's prescribed mold. Who will speak for justice in America today? Who will stand up for the poor, the weak, the disenfranchised, preserve our system of justice and oppose the well-funded efforts of the powerful few to decimate the rights of the many? Despite the rantings of conservative pundits, my colleagues in the plaintiffs' bar are not given to "lucrative rapacity." We are one with our forebears who, more than 200 years ago, breathed life into the concept of individual liberties. And we are given to thwarting the rape of constitutional rights that proponents of tort reform are mendaciously attempting to force on all Americans, guilefully cloaked in the illusion of "reform."
David A. Wenner, J.D., is recognized nationwide as an authority on juror bias and decision-making. A partner in the Phoenix law firm of Synder & Wenner, P.C., Wenner has spent the past 20 years litigating catastrophic injury and death cases, lecturing across the country and developing a successful Juror Bias Model. He is listed among the Best Lawyers of America.
johnshadegg.house.gov/ rsc/word/ATLA%20on%20religious%20jurors.pdf Congressman Tom Tancredo Website, house.gov/tancredo/newsroom/press/2003/2003_12_09.html www.crosswalk.com/news/1236747.html www.nationalreview.com/shiflett/shiflett200312230101.asp www.spectator.org/dsp_article.asp?art_id=6057 www.reviewjournal.com/lvrj_home/2003/Dec-21-Sun-2003/opinion/22840169.html Rock Mountain Journal, Editorial 2003, www.rockymountainnews.com/drmn/opinion/article/0,1299,DRMN_38_2539029,00.html www.charleston.net/stories/020804/woo_08wooten.shtml Wall Street Journal Editorial, January 12, 2004 Douglas H. Cook, PERSONAL RESPONSIBILITY AND THE LAW OF TORTS. 45 Am. U. L. Rev. 1245 President Bush speech; Elizabeth, New Jersey June 16,2003 President Bush speech, San Francisco, California, June 27,2003 President Bush speech Houston, Texas, July 19,2003 Bush speech Kansas City, September 4, 2003 President Bush Speech, Indianapolis, Indiana, September5, 2003 President Bush Speech, Midwest Airlines Center,Milwaukee, Wisconsin, October 3,2003 President Bush Speech, Manchester, New Hampshire, October 9,2003 President bush speech, San Bernardino, California, October 16,2003 President Bush Speech, Home Depot, Halethorpe, Maryland, December5,2003 President Bush Speech , Washington.D.C. February 23,2004 President Bush, Bakersfield, March 04, 2004 President Bush Speech, Philadelphia, March 15,2004 johnshadegg.house.gov/ rsc/word/ATLA%20on%20religious%20jurors.pdf Congressman Tom Tancredo Web site, house.gov/tancredo/newsroom/press/2003/2003_12_09.html www.crosswalk.com/news/1236747.html www.nationalreview.com/shiflett/shiflett200312230101.asp www.spectator.org/dsp_article.asp?art_id=6057 www.reviewjournal.com/lvrj_home/2003/Dec-21-Sun-2003/opinion/22840169.html Rocky Mountain Journal, editorial 2003, www.rockymountainnews.com/drmn/opinion/article/0, 1299, DRMN_38_2539029,00.html www.charleston.net/stories/020804/woo_08wooten.shtml Wall Street Journal editorial, January 12, 2004 Douglas H. Cook, Personal Responsibility And The Law Of Torts. 45 Am. U. L. Rev. 1245 President Bush speech, Elizabeth, New Jersey, June 16, 2003 President Bush speech, San Francisco, California, June 27,2003 President Bush speech, Houston, Texas, July 19, 2003 President Bush speech, Kansas City, September 4, 2003 President Bush speech, Indianapolis, Indiana, September 5, 2003 President Bush speech, Midwest Airlines Center, Milwaukee, Wisconsin, October 3, 2003 President Bush speech, Manchester, New Hampshire, October 9,2003 President bush speech, San Bernardino, California, October 16,2003 President Bush speech, Home Depot, Halethorpe, Maryland, December 5, 2003 President Bush speech, Washington, D.C., February 23, 2004 President Bush speech, Bakersfield, March 4, 2004 President Bush speech, Philadelphia, March 15, 2004
Preserving
'The Spirit of Liberty' for All Americans By David A. Wenner J.D.
On May 21, 1944, one of the finest jurists in American history, U.S. District Judge Learned Hand, delivered a speech called "The Spirit of Liberty" at an "I Am An American Day" ceremony on the grassy slopes of Central Park in New York City. Judge Hand's words define the very bedrock of patriotism and the most basic doctrine on which the American civil justice system was founded: Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it... can even do much to help it... The spirit of liberty is the spirit which is not too sure that it is right... the spirit which seeks to understand the minds of other men and women... the spirit which weighs their interests alongside its own without bias... The spirit of liberty is the spirit of Him who, near 2,000 years ago, taught mankind... that there may be a kingdom where the least shall be heard and considered side by side with the greatest. The patriots who designed the American civil justice system intended it to be the embodiment of that spirit of liberty--that every citizen, regardless of their station in life, would have the right to petition the courts for justice and that a fair, impartial jury would hear their cry. Since our Nation's infancy, special interests of various stripes have attempted to usurp this right, but the precept of our founding fathers has held fast for 228 years. In that tradition, I recently drafted a chapter on juror bias for the treatise of the Association of Trial Lawyers of America (ATLA) and West Publishing. My observations were intended to help trial attorneys identify and select unbiased jurors--individuals who are likely to listen to the evidence with open minds, uninfluenced by preconceptions of any kind, and make fair judgments based on the facts presented in court. Regarding personal injury trials, specifically, the goal is to select jurors who will weigh the importance of personal responsibility and corporate accountability equally, ensuring a fair trial for both plaintiff and defendant. More than two centuries ago, Chief Justice John Marshal wrote, "The main reason the jury system is respected is the public expects a juror to be unbiased." Unfortunately, that respect is waning--not by accident, but by design. Today, a well-financed, nationwide campaign is underway to bias jurors against plaintiffs, and in doing so, to minimize the accountability of big business and big insurance to society. Tort reformers use themes of patriotism, religion and personal responsibility to appeal to Americans' most basic values and portray plaintiffs as lazy people who want something for nothing. Yet, their real agenda is to stifle individual rights and protect their own corporate bottom lines. With corporate mega-bucks at stake, the one thing that big business fears is a jury. Already, consultants for the right wing have extracted isolated statements from context in the chapter I wrote for ATLA and twisted their meaning to suit the needs of their corporate clients. These media mercenaries for the tort reform lobby are trying to fan the flames of public outrage with charges that the plaintiff's bar is conspiring to exclude citizens with strong opinions about religion, traditional family values and personal responsibility from juries. Nothing could be farther from the truth. Having a strong opinion about religion, personal responsibility or any other matter doesn't mean that a juror is a good or bad person, or that he can never be fair and impartial. Each of us has our own biases, however, and if those biases might compromise either the plaintiff's or the defendant's right to a fair trial, then we shouldn't serve on the jury for that case. A good juror is a juror who does not have a strong opinion about anything affecting the case at hand. That is not an anti-anything message; it is a just, fair message. Pretrial questioning of potential jurors, voir dire, is a practice rooted in the very genesis of the American civil justice system. Its purpose is to identify people who hold biases that may skew their judgment as jurors. Sometimes, bias is revealed in statements about religious beliefs, sometimes in observations about personal responsibility or in dozens of other indicators that both plaintiff and the defense attorneys try to uncover. My colleagues in the plaintiff's bar are fighting to preserve the spirit of liberty that Judge Hand described so eloquently--for all Americans, not just the wealthy, influential few. Pursuing one's rights in court is not irresponsible, and it's not un-American. To the contrary, it is precisely what our founding fathers intended. David A. Wenner, J.D., is recognized nationwide as an authority on juror bias and decision-making. A partner in the Phoenix law firm of Synder & Wenner, P.C., Mr. Wenner has spent the past 20 years litigating catastrophic injury and death cases, lecturing across the country and developing a successful juror bias model. He is listed among the Best Lawyers of America.
Combating
Anti-Plaintiff Bias By David A. Wenner & Gregory S. Cusimano
FOCUS GROUP STUDY FOR ATLA'S NATIONAL COLLEGE OF ADVOCACY THE BIAS WE CAN USE TO OUR ADVANTAGE
FOCUS GROUP STUDY FOR ATLA'S NATIONAL COLLEGE OF ADVOCACY In the spring of 1994, ATLA's National College of Advocacy (NCA) convened its first focus group college in Charleston, South Carolina.1 The authors were faculty members on this groundbreaking college. Over 30 trial lawyers from around the country attended. Some 60 focus groups were conducted with several hundred people participating. On the last day of the college, the faculty and attendees met to analyze the focus groups. The similarity of attitudes we found among the various focus group discussions was striking. For instance, the way in which one focus group talked about plaintiff's responsibility was remarkably similar to that of other groups. Many of the attitudes towards plaintiffs were unjustifiably negative. From the several hundred people sampled this weekend, a clear anti-plaintiff bias emerged. We were hoping the results were an anomaly. Others felt the results only too well confirmed what they had long known and had been hearing in courtrooms across America. A year later in the spring of 1995, the NCA held its second focus group college in Houston, Texas. Like the college in Charleston, on the last day, the results were analyzed. Remarkably, the attitudes were strikingly similar to those in Charleston. Often, the focus group participants used the exact same words that the Charleston focus group participants used to describe the plaintiff and his conduct. The focus group participants in both colleges appeared to be fluent in the tort propaganda rhetoric. A clear anti-plaintiff bias again emerged. Coincidence was an insufficient explanation for the results of the two colleges. By 1995, we were convinced that focus groups were essential for trial lawyers to combat this anti-plaintiff bias. At least, focus groups alert the unsuspecting trial lawyer to public perception before the "real jury provides a more sobering reality." The authors were also convinced a study of jury attitudes was necessary to determine how widespread this bias is and whether anything can be done about it. In April of 1995, ATLA appointed a blue ribbon committee of trial lawyers to study jury bias. The authors chaired that committee. To begin the research, we participated in hundreds of focus groups. In addition, the authors continued participating in ATLA's focus group college, the Case Workshop, which has now been held over ten times. Finally, we exhaustively reviewed the social science literature. Through our research, we identified five attitudes that negatively influence juror judgment about plaintiffs. To combat these attitudes, we proposed "ten commandments" for trial lawyers that can minimize the effect of these attitudes. A thorough review of the five attitudes and Ten Commandments is the subject of ATLA's "Overcoming Juror Bias" seminar. In this paper, we will address two of the attitudes and three of the commandments.
Juror bias has long been the subject of controversy among judges, legal scholars and trial lawyers. Eliminating juror bias is indispensable to a fair trial. In the treason case of Aaron Burr, Chief Justice John Marshall, sitting as trial judge, wrote, "the main reason the jury system is respected is the public expects a juror to be unbiased." The Chief Justice explained: Why do your personal prejudices constitute a just cause of challenge? Solely because the individual who is under their influence is presumed to have bias on his mind which will prevent impartial decision of a case according to testimony. He may declare that notwithstanding these prejudices, he is determined to listen to the evidence and be governed by it: but the law will not trust him... Such a person may believe that he will be regulated by testimony, but the law suspects him, and certainly not without reason. He will listen with more favor to the testimony which confirms, than to that which would change his opinion; it is not to be expected that he will weigh evidence or argument as fairly as a man whose judgment is not made up in the case. Marshall's keen analysis of jury bias is on point today. Marshall would likely not be surprised today that special interest groups, the insurance industry, corporate America and certain political groups have combined to use strategically any means available to create juror bias. These propagandists have worked hard to create a negative image of plaintiffs, their lawyers and the civil justice system. One tort reform group boasts that it has been a source of information for more than 250 news stories, including an ABC story entitled, "Grief to Greed," a CBS piece entitled, "See You in Court," and the Oprah Winfrey show entitled, "Has America Gone Lawsuit Crazy?" Such groups readily admit that they "use every means imaginable in advancing the anti-lawsuit abuse message." These groups brag that they use every means possible to carry their message directly to the public, including hard-hitting television ads, billboards and radio ads. These propaganda entrepreneurs use so-called "educational" public relations campaigns and political campaigns , to motivate the public about their message. Presidential candidate George W. Bush promises to carry the mantle for these groups. Recently, Bush had this to say: Too often, our courts aren't serving people, they are serving lawyers... most lawsuits are threatening jobs and denying access to the courts for those who have legitimate claims. The goal, of course, of these campaigns is to firmly imbed an anti-plaintiff bias in the public psyche. That goal, many would argue, and our focus groups confirm, has largely been achieved. These efforts, that have gone largely unnoticed by our courts, have caused juror bias to reach a fever pitch. Cases are now tried against the backdrop of a constant drumbeat of negative campaigns against plaintiffs, their lawyers and the justice system. To make matters worse, in recent years, many high profile cases have placed the justice system center-stage. The combination of these high profile cases and tort propaganda has instilled in the public mind a jaundiced view of the justice system, plaintiffs and their lawyers. This has been a veritable recipe for juror bias. Today the need to address juror bias has never been more acute.
The 1994 brainchild of the Republican Party, the "Contract with America," called for commonsense legal reform as its ninth prong of a ten-point program. This ushered in a frontal assault on the civil justice system and was the culmination of years of effort to bring this issue center-stage. The Republican Party vows to keep tort propaganda in the forefront of public debate. Typical of the propaganda are these comments from the Citizens for a Sound Economy: In recent years, however, the tort system has expanded far beyond its purpose. Jurors award compensation to claimants that are all out of proportion to the harm suffered. In certain circumstances, the defendant is ordered to pay even if he is not at fault. Thus, the tort reform system has become a 'legal lottery' and a social insurance system. The fact that juries often feel sympathetic to a claimant - - regardless of whether the other party was at fault encourages frivolous lawsuits to be filed. Defendants often find themselves paying to settle these cases to avoid the legal expenses of defending against the claim. In addition, a victim is often compensated even if the victim's behavior partly caused the accident. This violates the idea of individual responsibility and fosters an entitlement mentality. Who benefits from this system? Lawyers who will file the most ridiculous case just to secure a settlement, and those claimants who win the "legal lottery." Who pays? Consumers pay in the form of higher prices for products and services. Moreover, consumers are deprived of products and services that are simply not available because liability insurance is too expensive. For instance, the tort system has prevented dying patients from receiving experimental medical treatments and has also caused local governments to stop providing certain public goods, such as swimming pools and playgrounds. This rhetoric is very clever. Message one, juries are out of control. Message two, the civil justice system is a "legal lottery." These phrases are likely the result of focus group research showing this message is persuasive. Message three, plaintiffs claim to be victims. Using the term, "victims," is often a code word for "welfare recipients." Use of the phrase, "entitlement mentality," is no coincidence and links plaintiffs to welfare. These propagandists understand that public assistance often evokes a visceral emotional response. The link to welfare also elicits images of welfare recipients who are personally responsible for their predicament and therefore are undeserving of help. It is the equivalent of wielding an image of a person driving a flashy Cadillac to pick up their welfare check. In other words, plaintiffs, like welfare recipients, are asking for a free ride at the public's expense or worse, ripping the public off. Message four, plaintiffs do not take personal responsibility thereby violating a powerful cultural norm. Message five, the only ones benefiting from the system are "lawyers who file" the cases -- plaintiffs' lawyers. Message six, the public is the loser in the system. The authors have repeatedly witnessed focus group participants using these attitudes during mock deliberations. This is no accident. The constant drumbeat of propaganda is working. The "Contract for America" even brought its propaganda to the floor of congress in 1995. One congressman summed up the sentiments of the rank and file propagandists: Our courts have become lucrative feeding ground for unscrupulous lawyers and greedy plaintiffs who abuse the system. Litigation is spinning out of control when a woman can sue over spilt coffee and walk away millions richer. The Republicans will work to curb this lucrative feeding frenzy by passing a commonsense product liability and legal reform. Of course, the congressman is referring to the infamous "McDonald's" case. Two Cornell law professors framed the tort propaganda influence pedaling this way: Using every technique of modern media shaping, tort reform groups sought to assure that the public belief of products liability law was the cause of this threat to our way of life. The message was carried, and is carried, through a variety of media: print; media advertising campaigns; television appearances on the "Today Show," "Good Morning America" and the "McNeil-Leher News Hour"; purchased television time; and reports of surveys of business and public opinion... Among those apparently influenced were the appellate and district court judges who at least since 1985, have increasingly favored defendants. The judges ultimately underlie the quiet revolution... Tort propaganda is well orchestrated and persuasive. Tort reform slogans, like "lawsuit abuse": "we all pay, we all lose" are used by jurors to rationalize verdicts in favor of defendants. Jurors who believe such slogans cannot be fair. Tort propagandists also use fear to sell their message. They imply that these suits, if allowed to continue, will cost the public a great deal of money. This message is compelling. Imagine trying to persuade jurors with this mindset. It asks jurors to consider the personal consequences of the verdict. This appeal certainly is improper if made by a party during a trial. Imagine a lawyer for an automobile manufacturer asking a juror to consider how much the plaintiff's verdict will cost each juror the next time he purchases an automobile. This type of appeal turns the case into one against each juror. Thus, the message is personally relevant for each juror. Unfortunately, the media, indirectly, reinforces the tort propagandists' message. A recent survey found the media over-represents cases in which plaintiffs win and the amounts awarded. In fact, a review of coverage of tort litigation in 249 articles contained in five prominent news magazines over a ten-year period found the media reported the plaintiff winning 85% of the cases and the average award to be almost $6 million. Obviously, these statistics do not represent most tort cases. The tort propagandists, though, want the public to believe they do. The rhetoric does not stop. Consider this recent newspaper ad, "The All-American Blame Game": Whatever happened to good old-fashioned responsibility? We have now become a society of victims in search of a scapegoat to sue whenever anything goes wrong. If you believe that plaintiffs' lawyers tell us, we are a nation with more victims than any other country in the world... Unfortunately, the blame game, while very lucrative for the lawyers, costs you and me plenty. The United States civil justice system is the most expensive in the world. It not only costs $152 billion annually, but it also decreases economic productivity and employment. If we Americans continue to refuse to accept responsibility for our own actions, we may all have a more serious price to pay. Isn't it time we stopped letting the trial lawyers play the blame game at our expense? This passage is a good example of the two attitudes we consistently have seen in our focus groups used against plaintiffs -- "personal responsibility" and the "anti-plaintiff bias." We will address each of these.
In a recent survey, Americans were asked to rank 15 values in order of importance. The value rated most important was personal responsibility. More than 95% of those surveyed called personal responsibility very important. What's more, this is consistent across gender, race, class and political preference. Tort propagandists understand the importance of the norm of personal responsibility. They love to cloak themselves in the aura of the norm. They express outrage towards norm violators at every opportunity. They like to think of the world as rewarding those who are personally responsible and punishing those who are not. Personal responsibility is considered a sign of moral strength. Those who are not responsible are immoral and lack backbone. The self-anointed representative for conservatives and morality, William J. Bennet, writes that a foundation of virtue is personal responsibility. He points out that to respond is to answer and account for your conduct. He defines irresponsible behavior as immature behavior. He explains: Responsible persons are mature persons who have taken charge of themselves and their conduct, and own their actions and own up to them -- who answer for them. Thus, responsible conduct is seen as simply a matter of choice. These metaphors are deeply ingrained in conservative thought and form the guiding principles of the propaganda. They have traditionally been used as a sword to impale the plaintiff. The propagandists suggest that if only the plaintiff had acted responsibly he would not have to be asking for a handout from someone who has been virtuous and been rewarded with the fruits of his labor. Plaintiffs are unjustly trying to steal from those who have achieved success through their hard work. The propagandists want to the public to believe the metaphor that people get what they deserve aptly applies to plaintiffs. Tort propaganda has effectively draped plaintiffs with such metaphors. These propagandists see themselves engaged in a cultural war and use plaintiffs as a poster boy to rally the troops. It is imperative that we combat these metaphors, make personal responsibility our message, and use it against defendants. George Bush, in his announcement speech for president, exclaimed: My first goal was to usher in the responsibility era. The era that stands in contrast to the last few decades when the culture has clearly said: ÔIf it feels good do it.' If you've got a problem, blame someone else. Each of us must understand we are responsible for the choices we make in life... we will be prosperous if we.... fight for meaningful tort reform. Responsibility is cleverly placed against the backdrop of the "fight for meaningful tort reform." This is no coincidence. The point is the propagandists' want the norm of personal responsibility center-stage in every case. If we choose to ignore it, it will come back to haunt us. If we make personal responsibility our message and use it against the defendants, we can recover the moral high ground. The plaintiff must make every effort to show that he is being personally responsible in family, work and community. We must show concrete examples of how the plaintiff has been personally responsible even in the wake of incredible adversity. Only then can we reframe juror perception of plaintiffs playing the blame game to that of holding the irresponsible defendant personally responsible and making him account for his action. Our focus groups have show that the norm of personal responsibility emerges in every case. Right or wrong, the public is fed up with what appears to be the refusal of people to take responsibility for their own actions. This resonates deeply with the public. In focus groups, members subscribe to the idea of personal responsibility and harbor the suspicion that people who bring lawsuits do not. If there is a perception that plaintiff has not been personally responsible, a preference to impose responsibility on the plaintiff tends to arise. Thus, our focus groups have shown that if you expect jurors to hold someone accountable, you must first demonstrate that the plaintiff was responsible. There appears to be a clear proclivity to hold the plaintiff to a higher standard of personal responsibility than that to which the defendant is held. If personal responsibility is a norm firmly rooted in the minds of our jurors, shouldn't we incorporate it in our trial story? Absolutely. Reclaiming personal responsibility as our message restores to plaintiffs the moral authority that propagandists are trying to steal from us.
The second attitude that is used to the disadvantage of plaintiffs is finding fault with the plaintiff. We refer to this attitude as the anti-plaintiff bias. Our focus groups have shown that jurors are often unjustifiably inclined to find fault with the plaintiff, even in cases where evidence of contributory negligence is absent. There is ample empirical data demonstrating that an anti-plaintiff bias exists. One survey of actual jurors in tort cases found that about four out of five jurors think, "people are too quick to sue" rather than trying to settle disputes. Only a third of the jurors feel most people who sue have legitimate claims. Jurors are suspicious of plaintiffs and their lawyers. In contrast, jurors are not generally suspicious of defendants and do not scrutinize the defendants' conduct to the same degree as that of plaintiffs. Our own research shows that 80% of our focus group members think there are too many lawsuits; and 68% believe that lawyers encourage people to file unnecessary suits. Researchers have documented a "blame the victim" effect that occurs naturally in the trial context. Jurors may be inclined to blame the plaintiff to avoid thinking that they may suffer a similar fate. Psychologists have labeled this "defensive attribution." Jurors generally do not consciously appreciate the strong influence their feelings have on their perception. In other words, jurors do not recognize their role in construing the plaintiff's conduct. Instead, jurors assume they are unbiased and perceive the plaintiff as they are. People want to believe they live in world where good things happen to good people and bad things happen to bad people. The idea that a person has suffered undeservedly is so threatening that people often feel compelled to resort to condemning the injured plaintiff. People want to believe they live in a predictable world over which they have some control. Moreover, when jurors are confronted with a severely injured plaintiff they may feel anxious and blame the plaintiff's irresponsible behavior for the discomfort. Therefore the more severely a plaintiff is injured the greater the likelihood jurors will engage in defensive attribution or rely on this notion of a "just world." Moreover, when jurors imagine facing the same situation the plaintiff faced, they imagine how their "ideal self" would have behaved. Jurors do not ask "Have I ever acted like that?" instead they ask, "How would I act if confronted with that situation?" Obviously, it is better if jurors take the former perspective. When judging the plaintiff's conduct, it is better if jurors recognize human frailty that we do not always act perfectly, and sometimes think with our heart and not our head. Jurors also may make the "fundamental attribution error." This is the tendency to assume that if someone has suffered an injury there is someone to blame. For instance, jurors may conclude that a plaintiff who tripped and injured himself in a department store was careless and inattentive rather than concluding that the store created an environment to draw the shoppers' attention away from the floor and towards a display. The error occurs because jurors are less inclined to focus on the situation that the injury occurred than the person in the situation. So, jurors are naturally inclined to focus their attention less on the confusing store displays and wet floor than on the person who tripped. Later, we will discuss how the focus of attention can influence judgment. Suffice it to say now that the trial lawyer's goal in judging the conduct of the parties is to refocus juror attention on the situation rather than the plaintiff and on the defendant and rather than the situation. Defendants frequently use the situation to excuse their conduct. For instance, a defendant may argue that he we was faced with an emergency and that is why he had no choice but to behave in the manner he did. In effect, that makes the situation more salient than the defendant. That is why it is imperative to make the defendant decision makers more salient than the situation. This biasing error has been termed, "fundamental," because it is pervasive in judgment. Again, jurors are of its affect on judgment. This is all the more incentive to understand and use it to our advantage. The authors are convinced, however, that the constant drumbeat of tort propaganda has increased the tendency to concentrate attention on the plaintiff's conduct more than would naturally occur. We have repeatedly seen in our focus groups that jurors blame plaintiffs even when there is no evidence offered of contributory negligence. Thus, there is a greater tendency we postulate to engage in the fundamental attribution error with plaintiffs than defendants. Recent surveys have confirmed the existence of a "blame the plaintiff" mentality: The underlying image of the Robin Hood jury is its supposed tendency to be overly sympathetic towards the injured plaintiff. Yet results from public opinion surveys and studies of jury decision making clearly show that the public is quite suspicious of, and sometimes downright hostile, to civil plaintiffs. The majority of Americans, including civil jurors, believe that we are in the midst of a litigation explosion in that many lawsuits are without merit... more than 80% of the jurors stated that there are too many frivolous lawsuits today. Just a third said that most people in court have legitimate grievances. These tort propagandists, who fancy themselves as norm entrepreneurs, are constantly chipping away at the public trust in the civil justice system. A recent experiment demonstrates the anti-plaintiff bias. In the study, subjects were asked to consider the following case: Mr. and Mrs. Roe are residential customers of the defendant Hokan Gas, which provides propane fuel. The valve that controls the flow of propane from the tank (owned by Hokan) on the Roe's property to their appliances in the house is at least 30 years old. Hokan, as requested by their insurance company, has recently begun to replace all valves over 15 years old, but has not replaced the Roe's. One Sunday afternoon, Mr. Roe was resting in the living room when he smells gas and hears a hissing from the kitchen. He goes outside and gets a telephone repairmen, who happens to be working on the property, to check out the smell and the noise. They go to the kitchen, where the noise is so loud that the repairman has to shout, 'Let's get the hell out of here!' They go out the front door into the yard. Mr. Roe runs away from the house, following the repairman, when the house explodes. He dies a week later from his injuries. The repairman is unhurt. Even though Mr. Roe and his wife had their first baby five months ago, at the time of the explosion, Mr. Roe was the only person home. When the results were analyzed, experimenters found that jurors used to decide the case legally irrelevant matters that were generally detrimental to the plaintiff. At times, jurors made up evidence, like the plaintiff should have been able to foresee the explosion when the facts did not allow for such an inference. Researchers have long known that people go beyond information given and fill in details when making judgments. What is troubling is that these imaginary facts were harmful to the plaintiff. We have seen this repeatedly occur in our focus groups. The authors of the study explain: Some subjects literally made up evidence, claiming, for example that the homeowner may have caused the leak himself or assumed the homeowner must be held at fault for the valve even though nothing in the facts would lead to such a conclusion. These results are consistent with other research on the subject. The study also shows that jurors double discount the damages by considering the plaintiff's blameworthiness when evaluating both fault and damages. The law considers these two distinct decisions. First, jurors are supposed to determine the amount of fault attributed to each party and next determine the gross amount of damages. The court then adjusts the verdict accordingly. The study shows that the plaintiff's blameworthiness reduced the amount of the defendant's fault and the plaintiff's damages. So, for instance, if jurors find the plaintiff 30% at fault and the damages to be one million dollars, the jurors award $700,000. But, the court would then again reduce the verdict by another 30% to $490,000. That is a substantial reduction in the award. We have repeatedly seen this occur in our focus groups during deliberation. We counsel trial lawyers to clarify the jury's task during closing when contributory negligence is in issue. After repeatedly seeing firsthand the effect of the anti-plaintiff bias, we began investigating whether we could reduce its impact on juror decision making. When jurors enter a courtroom, they bring with them the same habits or decision-making tools that they use in everyday life. We posit that the trial lawyer must understand these common habits people use in decision making to be effective in trial. As indicated earlier, there has been an immense amount of research in the general field of juror judgment and decision-making. Through surveys, focus groups and analysis of the literature, we have identified ten biases that can be extremely helpful in trying cases era tort propaganda. For purposes of this paper, we will address three of the ten.
THE BIAS WE CAN USE TO OUR ADVANTAGE The confirmation bias simply refers to the tendency for jurors to search for evidence that confirms their beliefs, critically scrutinize un-confirming evidence and interpret ambiguous evidence as consistent with their beliefs. We consistently see jurors accept supportive facts and vehemently discount non-supportive facts. To understand this bias, we must understand the concept of schemas. People organize their knowledge, beliefs, theories and expectations in cohesive units called schemas. When a person encounters a new experience, he has a cognitive framework for understanding that experience. Schemas influence perception. Juror schemas, thus, serve as framework for interpreting the evidence. Prototypes are role schemas. They help jurors understand how someone will behave in a given situation. If jurors expect a party to behave in a certain manner and if the party violates those expectations, jurors may feel the party has acted improperly. Similarly, scripts are event schemas. They help jurors understand how an event should unfold. If events have not occurred in the manner jurors expect, they will look for the cause. When jurors enter the courtroom, they bring with them their schemas. For instance, a juror who has a sick child and who frequently visits an emergency room will have a well-developed schema about the role of an emergency room doctor, specialists, and how a patient should behave in that environment. During a focus group in a medical negligence case concerning an emergency room physician and a specialist, a juror who fits the foregoing description attributed less fault to the emergency room doctor than to the specialist involved in the care, because, in her experience, the emergency room doctor is a "generalist" who hands the patient off to a specialist. The specialist was judged more knowledgeable and culpable. This juror's schemas had a powerful biasing effect on the way she viewed the evidence. During deliberation, jurors are more likely to recall evidence that confirm their schemas. Evidence consistent with juror schemas may be particularly memorable because jurors may pay greater attention to evidence consistent with their beliefs. But, jurors are also likely to recall events that which are inconsistent with their schemas. Therefore, if the party's conduct conflicts with juror schemas, it is also likely to be memorable during deliberation. Unfortunately, in conditions of information overload, like most trials, the ability to recall incongruent information may disappear because jurors may not have sufficient cognitive reserves to reconcile the inconsistencies. The goal for the trial lawyer should be to discover how to describe the defendant's conduct in a manner that is inconsistent with juror schemas and the plaintiff's conduct consistent with juror schemas. The trial must make the defendant's conduct vivid so it is memorable during deliberation. Every juror will likely have some knowledge, belief, theory or expectation regarding matters they will hear during a trial. Therefore it is imperative to discover which schemas jurors will likely use to interpret the evidence. The best way we know how to systematically do that is focus groups. During the focus group the trial lawyer should pay particular attention to the beliefs, theories and expectation participants have towards the parties, causation and damages. It is extremely critical to identify which schemas jurors find important. We have seen time and again, jurors rely on these schemas to resolve ambiguity, supplement information and reduce information overload. Once we identify important schemas, we can use these schemas to tell the trial story. This is extremely important because jurors tend to pay attention to evidence that is consistent with their schemas. In other words, jurors are much more likely to attend to and accept evidence which is consistent with their beliefs and expectations. In contrast, jurors are prone to discount information that does not fit their schemas. We must package our evidence in a way that fits juror expectations about how the plaintiff should have behaved and conflicts with expectations about how the defendant should have behaved. Then, it is more likely that jurors will interpret the evidence in a manner that favors the plaintiff. Remember, it is much easier to utilize a juror's belief than to try to change it. Therefore, knowing what jurors are likely to find agreeable will help tell a story which jurors find believable. Utilizing schemas that resonate with a jury also encourages rapport. Utilization has its roots in psychotherapy. It is a strategy that has long been used in psychotherapy and hypnosis to establish rapport and encourage cooperation. A hallmark of utilization is the acceptance of whatever behavior is presented. Utilization not only accepts whatever a person initially presents, but also considers it an important clue to what the person values highly. So, for example, if a juror during voir dire chooses to discuss a particular relationship, lawyers should consider that information as a means of communicating to the lawyer to acknowledge the importance of the relationship. For instance, in a case one of the authors tried, during voir dire, one juror stated that, "he had three children living." This juror did not have to add the word, "living." The trial lawyer must accept the communication to mean the loss of his child was important. The juror obviously highly valued his family. The communication was a gift. This communication was later utilized in telling the story. Thus, the trial lawyer showed that he is listening and understands the importance of what the juror is communicating. A dialogue thus begins. Professionals are just as likely to fall prey to their schemas as that of lay people. A famous experiment conducted by Stanford psychologist, David L. Rosenhahn, nicely demonstrates this point. In the study, eight researchers presented to a psychiatric hospital. These eight researchers consisted of one psychology graduate student, three psychologists, a pediatrician, a psychiatrist, a housewife and a painter. The identities of the pseudo-patients were unknown to the staff. Upon arriving at the hospital, they complained of hearing voices. The voices said, "empty", "thud" and "hollow." The patients altered their name and vocation, but the rest of their lives remained the same. None of the patients had ever been diagnosed with any psychological problem. Upon admission, the patients ceased having symptoms. Each was told that they would have to convince the staff they were sane and appropriate for discharge. All the patients, except one, were admitted with the diagnosis of schizophrenia and each was discharged with the diagnosis of schizophrenia in remission. The schemas the hospital staff used in diagnosing psychiatric patients biased their perception of the pseudo-patients. Interestingly, it was common for the patients to detect the sanity of the pseudo patients. In contrast, the schemas of the psychiatric staff biased their perception of the pseudo-patients. For instance, when patients took notes, it was referred to as engaging in the compulsive writing behavior that is associated with the disease of schizophrenia. The trial lawyer also falls prey to schemas. For instance, the trial lawyer confronted with a prospective juror who identifies himself as a 60-year-old CPA is likely struck because of the lawyer schema that CPA's do not make good jurors. Such a schema is deeply ingrained and hard to overcome. Research has shown, however, that demographics are weak predictors of verdict preferences. The trial lawyer is better served using schemas as red flags that call for further exploration of the juror's attitude about the specific issues raised in the case. This has proven much more predictive of verdict preference. A nice thinking experiment for the trial lawyer is to try to predict the verdict preference of jurors simply based upon demographics at the outset of the focus group. At the end of the focus group, compare the demographics with specific verdict preferences. The trial lawyer may be surprised. We should work hard to question our own schemas in selecting a jury and deciding which evidence is important and not simply accept them at face value. The important point to remember about the confirmation bias is that we should never underestimate the extent to which a juror's prior experience influences his perception of the evidence. We should also make sure that we identify the schemas that persuasively fit the case. Then we should tell the story, emphasizing those schemas. In the final analysis, a core belief will prevail over evidence that challenges that belief.
The belief perseverance bias refers to the tendency that once jurors adopt a trial story, they cling to the story even in the face of conflicting or discrediting evidence. We have seen in our focus groups jurors maintaining their trial story even when we instruct them that there is no evidence to support their position We also have seen repeatedly demonstrated in our focus groups that early-presented information has an immense influence on final judgment. For instance, if we introduce important evidence of the defendant's egregious conduct after jurors adopt a trial story, it seems to have much less impact than if we introduce it early. In contrast, if we present negative evidence after the trial story is adopted, it, too, seems less influential. Thus, jurors adopt a trial story early and, once adopted, it is very resistant to change. What we are finding, and are constantly surprised about, is that jurors do not continually update the trial story as new evidence is introduced. Instead, new evidence consistent with the trial story tends to strengthen it. Evidence inconsistent with it is more likely to be critically scrutinized. Thus, we know that jurors construct a story that confirms their prior beliefs, the confirmation bias, and that that story perseveres even in the wake of inconsistent evidence, the belief perseverance bias. Thus, presenting our strong evidence early is imperative. Recently and frequently presented information remains vivid and is more apt to be used for interpreting subsequent evidence. It is well established that priming his experience can influence a person's judgment. The eminent social psychologist, Solomon Ash, demonstrated this point in an experiment conducted in 1946. In the study, subjects received the following statements and were then asked to rate the person.
These two statements contain exactly the same words simply in reverse order. What Ash found was that Steve was rated more positively when he was described with positive traits first. These findings have been documented several times by other researchers. These findings are great importance for trial lawyers. Combining the confirmation bias and the belief perseverance bias shows jurors adopt a trial story early which confirms their beliefs and that that story endures even after conflicting evidence is introduced What we have discovered, and others have convincingly shown, is that even when there is evidence that clearly undermines or discredits the trial story, jurors still tenaciously cling to it. That is why it is essential that jurors adopt our trial story early. The trial story must be seeded during voir dire, told during opening, re-told during the evidence and reinforced during closing. The order that evidence is presented can have a powerful influence over decision-making.
Our use of the availability bias in trial work was the subject of a recent article in Lawyers Weekly. What it refers to is that the amount of information on a particular issue available for decision making and the can have a powerful biasing effect on juror judgment. In short, if trial lawyers want jurors to focus their attention on the defendant's conduct, then the trial should be focused on the defendant's conduct. The object of judgment can be more critical than the judgment of the object. The availability of information can influence perception. People often mistakenly equate the availability of information with frequency, probability and casualty. We propose that whatever most occupies juror attention during trial most will influence what jurors focus on during deliberation and disproportionately use in rendering a verdict. A simple rule of thumb is that if the trial is focused on the defendant's conduct, jurors will focus on the defendant's conduct in deciding the case. In contrast, if the trial focuses upon causation, jurors likely will focus on causation. Likewise, if jurors focus on the plaintiff's conduct during trial, they will focus on the plaintiff during deliberation. That does not mean we can ignore the plaintiff's conduct if it is in issue or that we should not inoculate against defenses. On the contrary, it just means the focus of the case, and the jurors attention, should be the defendants conduct. Everyone is subject to the availability bias. For example, people often assume that murder is more common than suicide even though it occurs almost 50 percent less. The reason we make this assumption is that it is more widely reported and thus available in memory. When the public is bombarded with information about frivolous lawsuits, they often wrongly assume that such cases are common. Similarly, the recent study by the National Academy of Science showed that as many as 98,000 people die each year from medical negligence in hospitals. That is the equivalent of one jumbo jet crashing every day. That makes medical negligence the fourth leading cause of death in the United States. Nonetheless, if a jumbo jet crashes it is front-page news for everyone to see. If somebody dies from medical negligence, it often receives no press coverage. Thus, because instances of medical negligence are not readily "available" in our memory, jurors often wrongly assume it is uncommon. The following experiment is a good demonstration of the availability bias. Subjects were told to read the following story: Mr. Jones was 47-years-old, a father of three and a successful banking executive. His wife has been ill at home for several months. On the day of the incident, Mr. Jones left his office at the regular time. He sometimes left early to take care of home chores at his wife's request, but this was not necessary that day. Mr. Jones did not drive home by his regular route. That day was exceptionally clear and Mr. Jones told his friends in the office that he would dive along the shore to enjoy the view. The accident occurred at a major intersection. The light turned amber as Mr. Jones approached. The witness noticed that he braked hard to stop at the crossing although he easily could have gone through. His family recognized this as a common occurrence when Mr. Jones was driving. As he began to cross after the light changed, a light truck charged through the intersection at top speed and landed on Mr. Jones' car from the left. Mr. Jones was killed instantly. It was later ascertained that the truck was driven by a teenage boy who was under the influence of drugs. As commonly happens in such situations, the Jones family and friends often thought and often said, "If only... during the days that followed the accident..." The subjects were asked, "How did they continue this thought? Please write one or more likely completions." Only 21% of the response eliminated the drug-crazed driver from the scene. Instead, the subjects focused more upon Mr. Jones' conduct. In fact, a majority of the respondents completed the sentence, "If only Mr. Jones had taken another route." There are several important lessons from this study. First, changing the focus of attention can change juror perception of the trial story. Second, there are many extraneous facts to this story that were completely irrelevant for the jurors' decision. For instance, in the second paragraph, attention is focused upon the fact that Mr. Jones "sometimes left early to take care of home chores at his wife's request, but this was not necessary that day." When lawyers introduce information, jurors assume it is relevant to their decision-making. If we assume that communication comes with a guaranty of relevance, then we must be vigil in communicating only that information which is necessary to the decision at hand. We can combine the confirmation, belief perseverance and availability biases in analyzing the above-referenced story. To begin with, if we were to focus group this case, we would want to discover what schemas jurors have about teenagers who and use drugs. Undoubtedly, one subject would be the boy's relationship to his parents. Did they know or could they have known about his unlawful behavior? Moreover, jurors will likely want to know how much and what kind of drugs the boy took. Many jurors may not have any prior experience with unlawful drugs and metaphors describing drugs may be an important area to explore with the focus group. Further, we may want to explore what were the factors leading to the driver being in that intersection on that day high on drugs. It likely involved many conscious decisions of over long period. Then we can tell the story of the driver's conduct in a manner that confirms beliefs and focuses on his conduct. Then the story will be about the defendant. Once we know what evidence jurors feel is important, then we can introduce that evidence early and repeat it often so that we can use the confirmation, belief perseverance and availability bias to our advantage.
As Oliver Wendell Holmes, Jr., said, "The life of the law has not been logic; it has been experience." He is right. It is the jurors' experience that we must understand. Tort propaganda has made it essential that we undertake this investigation. The best way we know to do this is focus groups. Only then can we begin to use that experience and tell our stories in a manner consistent with that juror experience. As William Blackstone aptly put it: A competent number of sensible and upright jury men chosen by law from among those of the middle rank, will be found the best investigators of truth; and the surest guardians of public justice... This therefore preserves in the hands of the people that share, which they ought to have the administration of public justice and prevents the encroachments of the more powerful and wealthy citizens. Only if we understand the jurors' experience can we give them the tools to protect the public and eradicate the campaign of the powerful and wealthy to limit the rights of the jury.
1 The college is called the Case Workshop. During the college each attendee trial lawyer gets two opportunities to focus group an actual case she is litigating. A team consisting of a trial lawyer faculty member and a trial consultant faculty member facilitate the groups. The first group is a concept focus group that consists of a neutral fact presentation after which the group deliberates like a jury. The second group is a structured group where two lawyers present arguments from each side and again the group deliberates. This college is an excellent format for the trial lawyer to learn about focus groups and their case. Many skilled trial lawyers have been instrumental in creating the program including, Jim Lees, Howard Nations, Jim Gilbert, Lisa Blue, Larry Stewart, Bud Deluca, Mark Mandell, Paul Scoptur, David Baum, Jim Perdue and others. In addition, the commitment to keeping education for trial lawyers on the leading edge of the NCA board and staff was essential to the success of the program. Lee Ross, the eminent psychologist was invaluable in directing our investigation and shaping our thinking. U.S. v. Burr, 25 Fed.Cas. 49, 50 (1807) (Case No. 14, 692g) Id. See, Citizens Against Lawsuit Abuse, calahouston.org Id. Mission Statement, American Tort Reform Association Id. The Reformer, American Tort Reform Association, Spring 1997 See, George W. Bush, A Record of Accomplishment. George W. Bush Presidential Exploratory Committee, Inc George W. Bush, Announcement Speech, June12, 1999, Cedar Rapids, Iowa. See, Daniels, S. and Martin, J (1995) Civil Juries and the Politics of Reform, Evanston, Ill. Northwestern University Press; Vidmar, N., (1995), Medical Malpractice and the American Jury, Ann Arbor, MI, University of Michigan Press. Id. See, McKittrick, Beverly "TORT REFORM AND THE CONSUMER" Citizens for A Sound Economy Foundation, CSEF.org Representative Ron Packard, California. Cong. Record E548 (March 8, 1995) Eisenberg & Henderson, "Inside the Quiet Revolution in Product Liability," 39 UCLA L.Rev. 731, 793-94, (1992) (citations omitted Some Plaintiffs Losing Out in Texas' War on Lawsuits, The New York Times, June 6, 1999 Ballis, Daniel, s., and MacCoun, Robert,J., "Estimating Liability Risks with the Media as your Guide: A Content Analysis of Media Coverage of Tort Litigation," Law and Human Behavior, Vol. 20., No. 4,1996, at 419 Moller, Erik, "Trends in Civil Jury Verdicts Since 1985," The Institute for Civil Justice, Rand Institute, 1996 Washington Legal Foundation, New York Times, December 12, 1998. New York Times, Bennet, William, J., The Book Of Virtue, Simon & Schuster, New York, 1993; see also, Lakoff, G. (1996). Moral politics: what conservatives know that liberals don't. Chicago: The University of Chicago Press. Id. at 186; See, supra at Fn.9 Hans, V., "The Contested Role of the Civil Jury and Business Litigation," Judicature, Vol. 79, No. 5, March-April 1996, 242-248, 244 Id. Id. Shaver, K. (1970) "Defensive Attribution: Effects of Severity and Relevance on the Responsibility Assigned for an Accident," Journal of Personality and Social Psychology 14, 101-113. Lerner, M.& Goldberg, H., When Do Decent People Blame Victims?, In, Dual-Process Theories In Social Psychology, Chaiken, S. & Trope, Y. EDS., Guilford Press, New York, Ch 31. 1999 See, Ross, L., (1977), The Intuitive psychologist and his shortcomings. In L. Berkowitz (Eds.), Advances in experimental social psychology. (Vol.10). New York: Academic; Nisbett, R., and Ross, L. (1980) Human inference: Strategies and Shortcomings of Social Judgment, New Jersey: Prentice-Hall; Ross, L., & Nisbett, R. E. (1991). The person and the situation: Perspectives of social psychology. New York, NY, US: McGraw-Hill Book Company. Hans, V., "The Contested Role of the Civil Jury and Business Litigation," Judicature, Vol. 79, No. 5, March-April 1996, 242-248, 244 Feigenson, N., Park, J. & Salovey, P., Effects of blameworthiness and outcome severity on attributions of responsibility and damage awards in comparative negligence cases, Law and Human Behavior, Vol.1, No. 6, Dec. 1997 P. 597 Id. Id A complete review of the five attitudes and ten biases is the subject of the NCA program "Overcoming Juror Bias." See, Ross, L., Lepper, M. R., and Hubbard, M., "Perseverance and Self Perception and Social Perception; Bias Attribution Processes of the Debriefing Paradigm." Journal of Personality and Social Psychology, 1975, 32, 880-892; Lepper, M. R., Ross, L., & Lau, R. R. (1986). Persistence of inaccurate beliefs about the self: Perseverance effects in the classroom. Journal of Personality & Social Psychology, 50(3), 482-491. See, Srull, T. K., Liechtenstein, M., and Rothbart, M. (1985), "Associative Storages and Retrieval Processes and Person Memory," Journal of Experimental Psychology: Learning, Memory and Cognition, 11, 316-345. Haley, J. (1969) Advanced Techniques of Hypnosis and Therapy: Selected Papers of Milton H. Erickson, M.D., Needham Heights, Mass: Allyn & Bacon. Rosenhan, D. L., (1973), On Being Sane in Insane Places, Science, 179, 250-258 See, generally, Fulero, S. M. and Penrod, S.D. (1990), "Attorney jury selection folklore: What do they think and how can psychologists help?" Forensic Reports, 233-259; Hans, V. and Vidmar, N. (1986) Judging the Jury, New York, Plenum; R. Hastie, S. D. Penrod, & N. Pennington (1983), Inside the Jury, Cambridge, Mass.; Davis, J. H. Bray, R.M., & Holt, R. W. "The Empirical study of the social decision process in juries," In J. Tapp & F. Levine (Eds.), Law, Justice and the Individual in Society: Psychological and Legal Issues. New York: Holt, Rhinehart & Winston, 1977 Asch, S. (1946) Forming Impressions of Personality, Journal of Abnormal and Social Psychology 41, 258-280 Jones, E.E., Rock, L., Shaver, K.G., Gocthal, G.R. and Ward, L.W. (1968) Pattern of Performance and Ability Attribution: An Unexpected Primacy Effect. Journal of Personality and Social Psychology 10, 317-340. 99 LWUSA 960, See, Statement of Donald Berwick, M.D., Medical Errors: Improving Quality of Care and Consumer Information, Health Subcommittee on Veterans Affairs, U.S. House of Representatives, 106th Congress, (Second Session), February 9, 2000. Kahneman, D., Slovic, P., & Tversky, A. (1982). Judgment under uncertainty: heuristics and biases. Cambridge; New York: Cambridge University Press; Tversky, A. & Kahneman, D. (1974), Judgment Under Uncertainty: Heuristics and Biases, Science, Sep. 27,185, 1124-1131 Oliver Wendell Holmes Jr., The Common Law, Little Brown & Co., 1881, pg. 1. William Blackstone, Commentaries on the Laws of England, (Garland Publishing, originally published in 1783, printed 1978), Vol. 3, pg. 380.
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