-To be conducted by Edward P. Schwartz

In part due to recent high-profile jury trials, the public has become aware of how jury composition can influence trial verdicts. The public is less knowledgeable about how often, and under exactly which circumstances, jury composition really matters. The belief in the importance of jury composition tends to be driven by little more than intuition, personal experience, and broad stereotyping.

Firms involved in litigation, and those who represent them in court, require a more nuanced, sophisticated, and practically relevant understanding of what drives jury decision-making. While much is gained through trial experience, a truly effective jury strategy cannot be developed without the assistance of someone with a knowledge of all the margins on which the verdict can depend.

During the last thirty years, researchers have conducted literally thousands of jury studies and experiments designed to answer many of the questions most directly relevant to the interests of trial litigants. Studies of the effects of jury composition constitute only the tip of the iceberg, especially in a state like Massachusetts where civil trials are generally characterized by limited voir dire and few peremptory challenges. The literature is ripe with important results on other trial dimensions - results that litigating firms can put to good use. While, a complete jury simulation strategy must concern itself with jury composition, it must also address issues of civil procedure, jury instruction wording, damages requests, deliberation styles, and voting rules. Many of these issues fail to reach the radar screens of even experienced litigators.

One key to absorbing existing studies and operationalizing their results is a thorough understanding of the methodologies employed. An informed reader should be able to recognize the strengths and weaknesses of each study and draw conclusions accordingly. The key question is always "Can I confidently apply this result to my own case?"

Many companies and most law firms are involved in a large number of similar cases each year. As such, there are economies of both scale and scope to be exploited by a firm in conducting its own studies and experiments and assembling its own comprehensive database for the purposes of developing a model of jury decision-making in relevant cases. Even a firm that employs an outside trial consultant to conduct its trial simulations can benefit from archiving the results for future use. While a familiarity with the jury decision-making literature will help a company's managers and lawyers leverage the past work of others for future cases, such knowledge will also help the company design future studies in a way that will maximize the usefulness of those efforts.

The workshop will introduce the participants to

• The various methodologies used to study juries
  
• Techniques for evaluating the validity and applicability of jury studies
  
• Basic results on the cognitive capacities and information processing of jurors
  
• Types of jury deliberation and their effects on verdicts
  
• Patterns of jury behavior in civil cases with respect to both liability and damages decisions
  
• Results from studies and experiments in the particular legal area of interest

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II.      Organization of Workshop

A typical daylong workshop is divided into three sessions, with each session lasting approximately two hours. If the workshop takes place during one day, the first session would be before lunch, with the remaining two after lunch, separated by a brief coffee break. A workshop can, of course, be spread over several days.

A.   Session 1: Conducting and Analyzing Research on Juries

In this session, participants will be introduced to the methodologies employed to study jury decision-making. These include:

• Correlational Analysis of case outcomes
  
• Simulation Experiments (mock juries)
  
• Field Experiments

Once an experimental method has been chosen, the researcher must still decide how the data will be collected. She can choose among:

• Surveys and Polls of participants
  
• Counting and characterizing outcomes
  
• Observing and coding the decision-making process
  
• Some combination of the above

In addition to learning about how each type of study is conducted, the participants will learn about the relative advantages of each method for asking various questions about juries. In deciding on a method, it is important to consider

• Internal Validity
  • Are the observations comparable?
  • Can one control or correct for possibly conflating variations?
  • Do the data measure the phenomenon of interest?

• External Validity
  • Is the study realistic?
  • Has the researcher influenced the results?
  • Can the results be generalized to other cases?

In this session, I will also lead a discussion of the methods employed by the firm in the past, with attention to the issues introduced here. Participants will brainstorm about possible revisions to the currently used methods.

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In this session, the participants will be introduced to some quite general theories and results on juror decision-making and jury deliberations. There are two basic heuristics to describe how jurors approach the task of evaluating a case.

• Meter-reading (weighing, computing)
• Story-telling (weaving a theory of events)

We will explore the implications of each for how likely jurors are to incorporate arguments and testimony into their own thinking about the case. Certain features of the trial do seem to affect how likely jurors are to remember and use information presented. These include:

• Timing of the testimony
  
• Overall length of the trial
  
• At what point instructions are given
  
• The perceived expertise of the witness
  
• Extra-legal factors
  
• Who presents "bad news"
  
• The ability to take notes

There are other factors, as well, which we will explore when we discuss specific studies.  And, to be sure, the identity of the juror can matter. I will review studies of correlations between demographic characteristics and juror biases. One issue to be explored is the extent to which "scientific" jury selection improves on what lawyers can do relying on intuition.

Each juror evaluates the evidence and testimony in her own way, but the verdict depends on the interactions of the jurors during deliberations. There are two basic types of jury deliberations.

• Evidence Driven
  
• Verdict Driven

For sure, both types occur in virtually every case. That said, the way the jury begins the deliberations can have important consequences for the eventual verdict.

There are many other factors that can affect the deliberations, the importance of each depending, in part, on the particular case. These factors include:

• Who becomes foreperson
  
• Whether the jury is given interrogatories
  
• Whether the trial is bifurcated (or trifurcated)
  
• How votes are conducted
  
• The size of the jury
  
• The Voting Rule used

Deliberation is a tricky nut to crack. One reason is that it is so idiosyncratic from case-to-case. Another is that it is not directly observable for real cases. Finally, juries deliberate over a whole host of issues, including

• Guilt or liability
  
• Appropriate Standards (e.g. reasonable care)
  
• Extent to which the victim is responsible
  
• Compensatory Damages
  
• Punitive Damages
  
• The value of human life
  
• Whether Justice is Served by following the law

In this session, participants will discuss the extent to which the study results comport with their own intuitions about how juries decide cases. In addition, we will inquire into whether any of these results match the firm's experience with its own mock juries and focus groups.

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Having discussed research methodologies and basic results in the first two sessions, we will use the final session to focus on specific studies that are relevant for the firm's mix of cases. I will review in detail a handful of cases involving questions of civil liability, contributory negligence, compensatory damage calculation, and punitive damage consideration.

The first question is what affects the likelihood that a jury will find the defendant liable for the victim's harm. The myriad factors that affect this determination include:

• The amount of harm suffered
  
• Whether the trial is bifurcated on liability and damages
  
• The wording of instructions on liability and reasonable care
  
• The wealth of the plaintiff and defendant
  
• The availability of insurance to either party

Not surprisingly the size of a compensatory award depends on many of the same factors as the liability determination. Award sizes, however, exhibit even more unpredictability. This is due, in part, to the contributions of a few additional factors.

• The plaintiff's award request serves as an anchor for the jury
  
• A counter-offer from the defendant can also be influential
  
• Requiring detailed accounting can reduce the size of jury awards
  
• Punitive damage requests increase compensatory awards
  
• Bifurcated trials affect awards in subtle ways
  
• Jury deliberations generally increase individual valuations of damages

So, there is a complicated interplay between jury deliberations on compensatory and punitive damages. While punitive damages are rarely awarded in Massachusetts, a plaintiff's request for punitive damages can still affect the final verdict.

I plan to conclude this final session with some brainstorming about experiments that the firm could conduct. I plan to frame this exercise by asking "If you could run only one study to help your team handle cases more effectively, what would you do?" This will help the company to prioritize its research on jury decision-making for the near future.

I expect that the workshop participants will come up with additional questions and concerns in the weeks following the workshop. Some may develop ideas about how to put some of the workshop's lessons into practice. I propose that I return to the firm a month or so later to meet again with the workshop participants. I will be able to address additional questions at that time and we can repeat some of the brainstorming exercises in light of a month's worth of reflection on the subject.

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