Aptitudes and Attitudes on Toxic Tort Cases By Robert F. Bettler, Jr., Ph.D, Senior Consultant, DecisionQuest 2014 Robert F. Bettler, Jr., and DecisionQuest Educating decision-makers the very basics Retention is the sine qua non of persuasion. If jurors or judges do not remember your message as they go to deliberate, they cannot be persuaded by it. Psychological research has shown that a message is better recalled, almost exponentially so, when communicated through both the auditory and the visual channels. Only 10% of message content is recalled after three days if that message was only spoken. If the same message was conveyed only visually, retention after three days is better, but still meager. But when the two are combined, the impact on recall is well beyond an additive one. 1
Objective results like those above are matched by more subjective ones, Do jurors appreciate the effort counsel will devote to creating demonstratives? Opinion polls conducted by DecisionQuest say, Yes. Dual channel messages are subjectively superior too. Going deeper beyond perception and retention to cognition Even if a demonstrative engages jurors attention and even if that message is memorable, other psychological barriers may limit its persuasive appeal. Psychological research has identified a number of cognitive biases that might impact persuasion. Parenthetically, the term, bias, in cognitive psychology does not carry the negative connotation the word may have in everyday speech. A bias in a psychological sense is simply a distortion in how people might perceive or process incoming information. It carries no more of a value judgment than a pair of smudged glasses. One commonly observed bias that can greatly impact how jurors perceive, process, and react to evidence in a toxic tort trial, and in turn influence their verdict and damages decisions, is the confirmation bias. People are more receptive to a persuasive message that is consistent with their preexisting views and more likely to reject an appeal that conflicts with those views. We all have some tendency to seek out information that confirms our preconceptions. So what preexisting opinions might influence jurors thinking in a toxic tort case? 2
DecisionQuest has conducted many mock trial studies in toxic tort cases across the country over many years. At the beginning of a typical Strategy and Theme Development exercise (DQ s trade name for a mock trial), before surrogate jurors have heard anything about the case at hand, our researchers pose a series of general attitude questions on a variety of subjects. In a contract case we will assess surrogate jurors life experiences with negotiating or signing contracts. In a transportation case we assess jurors experiences, beliefs, and attitudes about motor vehicle accidents, etc. In a toxic tort case we do the same, only focused on environmental issues. Some of the findings of our research are shown below. General concerns about the environment Above: A majority of respondents in our surveys report a significant level of concern about environmental pollution s health impact. These results are on par with public polling on environmental issues. 3
Above: This and the next observation from our research suggest that many potential jurors accept a very different definition of de minimus from that of toxicologists. 4
Turning the question around produces the same general impression. Environmental hazards are seen as real, not just hype. Feelings about the government s environmental efforts Above: A majority of respondents in our surveys feel the government should do more to protect the environment a sentiment reinforced by the following: 5
Public opinion polls about environmental policy have shown a similar tendency. For example, large-scale surveys have reported that a sizeable segment of the American population is open to paying higher prices for environmentally sensitive products. Corporations as toxic tort defendants In a civil trial, of course, a toxic tort defendant is almost certain to be a corporation and usually one most Americans would see as having deep pockets. Thus, preexisting feelings about large corporations could also serve as a cognitive filter through which the corporate defendant is perceived. Over many years, our research has shown attitudes towards large corporations to be reliability correlated with jurors verdict and damages tendencies. The range of attitudes Americans have on this subject are captured in the Dick Cheney Michael Moore Scale. Referring to the diagram below, on the left end (of course) of this pro-/anti-corporation scale are jurors who share the views of Mr. Moore: Big corporations are the root of all evil. On the right end are jurors like one we encountered in a Delaware jury selection who said, Big corporations are the backbone of the economy. The former Vice President couldn t have said it better. Needless to say, the plaintiff in that jury selection exercised a peremptory on that juror. Arbitrarily, we put Forrest Gump at the neutral point on the scale. 6
Studies examining jurors feelings about large corporations have shown it is not deep pockets per se that might predispose a jury against a corporate defendant. Studies have shown there are several other reasons why jurors set a lower bar for judging corporation s misconduct, as opposed to a private individual s of equal net worth. First, corporations are seen as having greater resources than any single individual, regardless of the latter s wealth. The resources a corporation is expected to possess consist not just of money, facilities, or laboratories, but also in the expertise of its personnel. It s the two heads are better than one notion multiplied by however many employees the corporation has on its payroll. Jurors expect that a corporation will have a large staff of experts and professionals who should have seen, or rather foreseen, all the possible consequences of its every action. This, by the way, interacts with another well-known cognitive distortion, the hindsight bias. Things always look more foreseeable when viewed retrospectively than they objectively could have been when viewed prospectively. The hindsight bias has been called creeping determinism because looking back, jurors see a single bright-line path leading from the defendant s actions (or inaction) straight to the plaintiff s injuries. Looking forward in time from the perspective of the defendant s employees of many years past, the potential outcomes of any given action is like the branching of a great oak any number of leaves of different sizes, shapes, or colors might have sprouted as events unfolded. In our studies, people s attitudes about large corporations are not entirely negative, but suspicions are quite widespread. 7
In nearly identical proportions, most of our research participants have expressed suspicions about the impact manufacturers have on the environment: 8
Nevertheless, people seem hopeful: 9
Conclusions In any given toxic tort case, the defendant s actions, the toxins at the center of the dispute, and the dangers associated with them will be different. But one thing is constant across all toxic tort cases, and many other case types besides: Juror do not really judge behavior so much as intentions. This is the natural consequence of another aspect of human cognition: We think in terms of stories. Narrative thinking is the default mode of human cognition. Narrative thinking is virtually hard-wired into the human brain. A very young child can create and understand very complex narratives. An intellectually challenged adult, like Forrest Gump, can create and understand very intricate stories. As every jury lawyer is well aware, the jurors will take the information they see and hear in a trial and convert it into the form of a story. You and your adversary both will strive to tell the most persuasive story, but in the end, it is the story jurors create for themselves that will decide the day. Any story consists of four parts: setting, characters, plot, and theme. The setting is the backdrop of the events at the heart of the dispute. Jurors preconceptions about that setting, in line with the attitude findings above and the confirmation bias will form the vessel in which the story unfolds. The characters are the parties in the dispute, various witnesses, and so on, and their actions, who did what to whom, constitute the plot of the case story. From these basic story elements and their interactions, jurors will infer a theme for their stories. Much more often than not, the theme of a trial story, like all stories, focuses on the motivations of the characters. For example, a common plaintiff s theme in product liability and toxic tort cases is the defendant put profits over safety. For a defendant, it can be just as effective to call the plaintiff s (or plaintiff s counsel s) motivations into question: They re just trying to win the litigation lottery! The potency, pervasiveness and persistence of such themes prove the point: jurors do not judge behavior so much as intentions. 10