December 2003

What Washington Jurors Really Think

by Chris Dominic and Craig C. New, Ph.D.

One Friday afternoon, we received an update on the settlement proceedings of a large, complex case on which we had been retained. The settlement conference had begun on Thursday, but after a promising start, the talks had broken down. Midway through the negotiations, one of the attorneys had proclaimed, "If this case goes to trial, the jury will hate your client." Not to be outdone, opposing counsel had retorted, "The jury will find my client sympathetic. However, they will hate your client." The mediator had made attempts to unite these radically divergent perspectives, but to no avail. We were going to trial.
 
One of the strongest areas of competitive advantage when evaluating, arbitrating, mediating, or trying a case is having an accurate and informed sense of what attitudes Washington jurors have toward issues that are related to your case. This is because an individual's attitudes are the most accurate predictors of the way jurors will reason through various case issues. Attitudes affect virtually all stages of information processing, from attention to retrieval.  
 
This is not to say that knowledge of juror attitudes allows one to predetermine case outcome. A persuasive story supported by strong, clear evidence can, and often does, overcome the various biases jurors may hold. However, when jurors are not persuaded by your case or your defense, or are in some way confused by the facts and/or story presented to them, they often retreat to their biases. This is a possibility that cannot be ignored, and for which the attorney should be prepared. Knowledge of local juror attitudes can aid tremendously in this preparation.

The Study

So does the fact pattern of your case put you in a place of competitive advantage, or are you already at a competitive disadvantage when you walk into court? We have been able to answer this question qualitatively for years, as we have been conducting qualitative jury research (mock trials and focus groups) in Washington since 1978. However, no one, including us, had ever undertaken a quantitative study (e.g., community-attitude survey) of sufficient size and scope to achieve an acceptable level of accuracy in the northwestern states.
 
In light of this void, we designed our study to target jury-eligible citizens in the Northwest. We asked attorneys throughout the region what questions they needed answered, and incorporated this feedback into the study's design. After a few iterations, we eventually settled on a survey spanning five categories of juror attitudes: general litigation, employment issues, corporations, medical malpractice, and insurance. After extensive pretesting, our survey was ready to field.
 
More than 1,000 jury-eligible respondents ultimately participated in the study. This large sample size results in a very low overall error rate of plus or minus three percent. In addition, a sufficient number of survey respondents were from Washington to allow us an error rate of only plus or minus five percent when examining the "Evergreen State" alone. Data collection on this study was completed in January 2003.

The Findings

What do Washington jurors think? We may not have all the answers, or even the space in this article to discuss all the findings from our study. However, the discussion that follows will reveal some of the most interesting and relevant findings from our in-depth study of Washington jurors' attitudes.
 
1. Attitudes Toward General Litigation

One of the most general questions that can be asked of a potential juror is one that is often asked by an attorney or judge during voir dire: "Can you be fair and impartial?" When asked in open court, the vast majority of potential jurors quickly answer affirmatively. This is fortunate, for it is the "right" answer—the even playing field on which we all hope our case is heard. However, when we asked survey respondents, "If you were a juror, do you think you would favor the plaintiff or the defendant at the start of the trial?" less than half (45 percent) of Washingtonians declined to choose a side. In fact, 31 percent indicated they would favor the plaintiff, and 24 percent indicated a bias toward the defendant. This is not the "right" answer.
 
How can there be such a disparity between what happens in court and what happened in a study? It can be explained by the phenomenon of the "good subject." That is, when asked a question in a public setting, people tend to answer with what they believe to be the "socially correct" response. After all, to most people, denying that they can be impartial would be equivalent to saying, "I am incapable of performing my constitutional duty as a citizen." In reality, to the degree it is possible to know one's own biases, it takes a great deal of introspection to truly have a good understanding of the "mental filters" through which one views the world. The concept of the "tabula rasa" individual is more a function of tradition than anything legitimated by social science.
 
A second important finding in the area of general litigation attitudes relates to jurors' views of pain and suffering. Respondents were asked, "In cases where people want money for their emotional pain and suffering, what percentage of the time do you believe those claims are legitimate?" Fifty-three percent of Washington respondents indicated their skepticism of such claims, believing that less than half of such claims are legitimate. The remainder of Washingtonians were evenly split on this issue, with 23 percent believing that exactly half of the claims for emotional pain and suffering are legitimate, leaving only 24 percent believing that more than half are legitimate claims.

2. Attitudes Toward Employment Issues

Employment cases often pose challenges in jury selection because virtually all jurors have had jobs, and as a result have well-defined opinions about how things are supposed to work in the workplace. They become, in essence, the nontestifying experts the attorney never gets to cross-examine.
 
To get a general sense of how Washingtonians initially stand in an employment case, we asked, "If you were a juror in a case where an employee was suing his or her employer, which side would you tend to lean toward at the start of the trial?" The results confirm what many employment-litigation attorneys have suspected: Only 26 percent of respondents expressed no bias for either party when faced with such a case. Another 26 percent indicated that their initial leaning would be in favor of the defendant employer, leaving the greatest percentage (48 percent) leaning toward the plaintiff employee.
 
The most lopsided result in the employment section of our study was revealed when we asked, "How common do you think age discrimination is in the workplace?" One-third of survey respondents believed age discrimination to be "very common." This finding is particularly important because participants offering the most extreme responses to any question (e.g., "very common" or "strongly agree") are indicating that they have a strong attitude. Jurors holding stronger attitudes will be less open to persuasion on the topic, both in the jury box and jury room. Further, taking the additional 43 percent of respondents who believe age discrimination is "somewhat common," we find that over three-fourths of Washington jurors (76 percent) see age discrimination as a common occurrence. Once again, this finding does not necessarily mean that any ageism case is automatically a winner. However, it does mean that a defense strategy assuming jurors can be persuaded that the plaintiff's case is "absurd" because of the rarity of age discrimination is clearly putting the defendant at a significant competitive disadvantage.

3. Attitudes Toward Corporations

Many would probably speculate that with the numerous scandals over the last couple of years (e.g., Enron, WorldCom), jurors' general opinions of corporations have become more negative. Our study contained several items to determine to what extent this speculation was true.
 
When survey respondents were asked about their initial leanings in a case where an individual was suing a corporation, we saw an increased number of respondents siding with the plaintiff. When asked, "If you were a juror on a case where someone is suing a corporation, which side do you think you would lean toward at the start of the trial?" a majority (54 percent) of Washingtonians indicated their favoritism toward the plaintiff. Slightly over a quarter (27 percent) of respondents expressed no leaning, leaving only 19 percent in favor of the corporate defendant.
 
To get right to the central issue, we asked respondents how their opinions of corporations had changed in the past five years. A slight majority (51 percent) answered that their opinion had "gotten worse," with another 42 percent stating their opinion had "stayed the same." Not surprisingly, only seven percent responded that their opinion of corporations had "gotten better."
 
Responses to these last two questions may seem to be enough to indicate that Washingtonians have a generally unfavorable opinion of corporations. However, when we directly asked respondents about their overall opinions of corporations, only 33 percent of Washingtonians expressed an unfavorable opinion, compared to 67 percent expressing a favorable opinion. How do we reconcile these seemingly contradictory opinions?
 
First, as mentioned earlier, many Washingtonians work for businesses or are in business themselves, and familiarity often breeds fondness. Also, we commonly observe people in focus groups and mock trials who are quick to defend capitalism and the "American Dream." The synopsis of this attitude is essentially, "It is okay to go out and make money, and that's what corporations do." In fact, a common trap into which corporate defendants fall is defensiveness about their being a business, instead of explaining their personal story. A few quotes from participants in our mock trials illustrate the point of trying to draw the line between acceptable and unacceptable behavior.

• "That's just business. That's capitalism. And that's this country."
• "Even if [defendants] were worth a hundred billion dollars, why should they give [plaintiffs] a single dollar, when all they did was use the American system?"
 
Even today, corporations get the benefit of the doubt in a vacuum. However, a corporation that crosses an ethical line is likely to be perceived as a "cheater," and thus subject to severe punishments. When we asked respondents to estimate the frequency with which corporations cover up their wrongdoing, we found that almost two-thirds (61 percent) believe this occurs "often," with another 35 percent responding this occurred "sometimes." This leaves a mere three percent viewing corporate coverups as a "rare" occurs, and a microscopic one percent stating "never." In fact, it is not uncommon, when observing mock-jury deliberations, to see mock jurors discuss "hurting, but not killing" corporations, even when the plaintiff's attorney has not overtly argued that the jury should "send a message."

4. Attitudes Toward Medical Malpractice

Medical malpractice has been one of the most contentious areas of civil litigation for the past 25 years. In part, this is because healthcare touches all jurors and their families. We find that mock jurors and focus-group participants nearly always bring personal or familial examples into deliberations in medical-malpractice cases. Nationally, medical-malpractice cases are the hardest to win, but can also result in the largest damages. So how do these facts relate to the way Washingtonians perceive medical-malpractice cases?
 
It is unlikely a coincidence that when we asked, "If you were a juror in a medical malpractice trial, which side would you lean toward at the start of the trial?" that the percentage of Washingtonians siding with the plaintiff was the lowest of any similar questions in the study (40 percent). Those expressing no leanings, and those favoring the defendant, were each 30 percent. This is even in light of an unfavorable response to the question, "How has the quality of our nation's healthcare system changed in the past five years?" Considering that the United States is the only remaining superpower, we still have 44 percent of Washingtonians believing the quality of healthcare has declined, and another 33 percent believing it has remained the same. Only 23 percent believe healthcare has increased in quality. Clearly, Washingtonians compare healthcare to what they know—what they are used to. Since the cost of healthcare has increased significantly at a national level in the last five years, this reaction is not surprising. Typifying this sentiment, a participant in a recent mock trial reported, "I was in the hospital for one week and racked up a bill for $80,000. This damage award won't even pay for [my] prescriptions." Another participant stated, while discussing damages in a separate case, "Four million dollars isn't even enough to cover the cost of a nursing home for 30 years."

5. Attitudes Toward Insurance

Finally, we come to the most lopsided category in regard to initial leanings—insurance. When asked to which side they would lean in a case where a person was suing his or her insurance company, 63 percent of Washington respondents claimed they would lean toward the plaintiff. Only 11 percent said they would favor the insurance company, leaving 26 percent truly impartial. Perhaps this is due to many respondents having had negative experiences with their insurance company. However, only 21 percent of our Washington sample reported ever having a serious dispute with their insurer.

To dig deeper into this issue we asked, "How often do you think insurance companies look for excuses to deny claims?" A significant majority (61 percent) believed this happens "often," with another 34 percent believing it occurs "sometimes." This leaves a very small percentage (six percent) with the belief that insurance companies try to deny claims "rarely" or "never." It is a remarkable finding that 95 percent of Washingtonians have the opinion that insurance companies at some level intentionally deny claims. An initial reaction to this would leave one feeling there is no good ground to capture when defending an insurance company. However, our qualitative experience informs us that this is simply one side of a system perceived as adversarial to the public.
 
To look into the other side of this issue we asked, "How often do you think people try to take advantage of their insurance company?" The response revealed some of the defense's best ground to capture. Thirty-six percent of Washingtonians believe this occurs "often," accompanied by almost half (49 percent) reporting a belief that this occurs "sometimes."

The Point

Now that you are armed with information, what should you do with it? The key is to consider the perceptions of your audience as early as possible in the litigation process. By doing so, you can capture a substantial competitive advantage at the earliest possible juncture, while also influencing the value and ultimate outcome of the case. There are many opportunities to utilize knowledge of juror attitudes to benefit your position. The following list highlights some of those opportunities and how this knowledge can be used.

• Evaluating cases
• Estimating potential jury outcomes
• Developing a course of action
• Helping clients confront reality
• Developing case strategy
• Developing a credible persuasive story
• Avoiding obvious pitfalls
• Promoting winning themes and issues
• Developing negotiation strategy
• Putting your own case forward
• Evaluating the other side's case
• Responding to mediators, arbitrators, and the other side
• Preparing for trial
• Preparing to take and defend deposition
• Evaluating evidence in discovery
• Selecting the jury
• Identifying potential juror bias
• Identifying case-relevant attitudes and opinions
• Designing voir dire
• Targeting supplemental juror questionnaires
• Identifying sensitive areas for jurors
• Case-presentation problems
• Preparing witness testimony for trial
• Using trial graphics to address harmful attitudes
• Explaining complexities

Conclusion

We all know that jurors bring a wide range of attitudes to trial. These attitudes are heavily influenced by the personal experiences of jurors, and these attitudes are not left at the courthouse door. The major findings of our juror-attitude survey show that, in general, jurors tend to favor plaintiffs, regardless and in the absence of case facts. The strongest bias of this type was found in favor of plaintiffs in insurance cases, with the weakest bias in favor of plaintiffs in medical-malpractice cases. The data also indicate that jurors come to trial with a reasonably high awareness of discrimination in the workplace. Jurors appear to have favorable opinions of corporations, but at the same time distrust them and are predisposed to punish wrongful conduct. Finally, our data show an increase in unfavorable opinions toward corporations and healthcare.
 
Forewarned is forearmed. A working knowledge of how area jurors view various topics of litigation can go a long way in giving the attorney a competitive advantage in all aspects of litigation. The attitudes discussed in this article span a wide range of case types, and should be applicable in many cases.

Chris Dominic is president and Craig C. New, Ph.D., is the director of research of Tsongas Litigation Consulting, a Northwest trial consulting firm with offices in Seattle and Portland, serving clients in 40 states. The authors can be contacted at chris@tsongas.com and craig@tsongas.com.

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