Strategies to overcome anti-plaintiff bias

By: Dick Dahl
Columnist
Published: July 3, 2006

Ever since they began a systematic study of juror bias 10 years ago, plaintiffs’ lawyers Greg Cusimano and David Wenner have been struck by the similarity of jury pools everywhere.

“We found that it didn’t matter if you were in Rhode Island or Miami or southern California,” said Wenner, who practices in Phoenix. “Jurors talk about certain key issues, and they come up over and over again.”

Those “key issues” are the strongly held juror beliefs that constitute impediments for plaintiffs’ lawyers. The two lawyers attribute much of this anti-plaintiff bias to the tort-reform movement and corporate public-relations campaigns, and they doubt that juror attitudes will change dramatically any time soon.

“A good bit of misinformation has been circulated in the last 30 years or so,” said Cusimano, who practices in Gadsden, Ala. “As a result, a number of biases have developed that have harmed the entire judicial system.”

But just because jurors may not trust plaintiffs’ lawyers, that doesn’t mean they need to run up a white flags before they set foot in court, according to Cusimano and Wenner. They have identified effective ways for dealing with juror bias and have organized them into an educational program – “Overcoming Jury Bias” – that has become a staple of Association of Trial Lawyers of America (ATLA) conventions in recent years.

Common biases

Cusimano and Wenner first started exploring juror bias in the early 1990s, when ATLA established a committee to study why jurors were becoming harder on plaintiffs. They organized dozens of mock juries and focus groups aimed at identifying biases that are common among jurors.

Wenner said they were surprised by what they found.

“The really fascinating thing was how jurors across the groups talked about issues in a very similar fashion,” he said. “It was almost as if they were being scripted; it was as if somebody had given them the words to use. There were certain catchphrases that we were seeing over and over again.”

They found phrases like “litigation explosion,” “jackpot justice” and “lawsuit lottery” recurring in mock juries and focus groups that had no contact with one another.

“These are terms that were probably developed at an ad agency rather than terms that developed in the minds of the general public,” Cusimano said.

The two lawyers studied the social science research that had been conducted on juror bias and used this to supplement their own mock jury studies and observations as trial lawyers. They then distilled this information into an ATLA program, which purports to provide a road map for how plaintiffs’ lawyers might overcome juror bias.

Wenner said the core of the program is a description of the five primary “negative biases” that potential jurors bring to the courthouse:

Suspicion. The lawyers research showed that jurors often suspect that plaintiffs are trying to get rich quick and that plaintiffs’ lawyers will lie in order to win. They say lawyers must seek to reduce juror suspicion, not by browbeating them, but by structuring the facts so that jurors draw their own conclusions.

“It used to be that lawyers would stand in front of a jury during opening statements and say, ‘This is a case about a greedy corporation that was more concerned about profits than safety,’” Wenner said. “But that doesn’t tell you any facts about the case. It’s about what I think and what I want you to think. One of the things that jurors absolutely do not like is when you tell them what to think.”

Wenner said that if plaintiffs lawyers “behave in a way that fits the stereotype, it just reinforces what [jurors] expect and believe, and they’re going to lose rapport.”

Cusimano said lawyers should seek to break stereotypes as soon as possible during trial, even during voir dire. He tries to ask potential jurors if they believe there are too many frivolous lawsuits. Many say there are; but when they do, Cusimano asks them for examples. Typically, he said, they mention the McDonald’s verdict.

At that point, a savvy plaintiffs’ attorney has two options: Try to explain “the true facts” about the McDonald’s verdict or try to differentiate his or her case from McDonald’s.

“You could say something like ‘Now that really worries me. Then how will you know that our case is not frivolous?’ Or ‘What can we do to help you believe that this is a legitimate case and not a frivolous case?’”

Victimization.The focus groups revealed a sentiment among some jurors that lawsuits are responsible for higher insurance bills and that a plaintiff’s verdict would therefore victimize society as a whole. Wenner said plaintiffs’ lawyers should respond to that bias by showing that their particular case “is good for the community and is about more than just giving money to this particular person.”

In addition, Wenner said many jurors also resent plaintiffs’ view of themselves as victims. So it is the attorney’s task to place jurors in the plaintiff’s shoes.

Personal responsibility.“The majority of people today think that individuals are not willing to take responsibility for what happens to them, so [plaintiffs lawyers] may want to spend a great deal of time in their cases showing that their clients were very responsible in their conduct,” Cusimano said. “That overcomes the perception that everybody who’s bringing a lawsuit is trying to get something for nothing.”

One way to do that is to turn the tables and ask jurors to apply the question of responsibility to the defendant, Cusimano said.

“[Jurors'] mindset is to think in terms of personal responsibility and not corporate responsibility,” he said. “So if you ask them, ‘What is your sense of corporate responsibility?’ you’re probably going to get a little buzz.”

“Stuff happens.” Cusimano and Wenner contend that there’s a certain category of juror whom plaintiffs lawyers cannot reach.

“You need to identify those people during jury selection and get them off,” Wenner said. “The people who say, ‘Stuff happens,’ will require you to prove your case almost beyond a reasonable doubt.”

This is particularly important during complicated cases, Wenner said.

To identify intransigent jurors, Wenner suggested that lawyers ask them directly during voir dire about the levels of proof they would require in the case.

If lawyers suspect that the jury does include this type of juror, they should simplify their arguments on causation as much as possible, he said.

Anti-plaintiff bias. Plaintiffs lawyers should also seek to strike jurors with strong anti-plaintiff biases “because those people tend to be very strong and vocal on the jury,” Wenner said. “They tend to be leaders and they’ll shift the jury in the direction of their opinions.”

Cusimano noted, however, that the opportunity for lawyers to identify biased jurors and strike them has grown more limited across the country as an increasing number of judges are now restricting voir dire.

But if lawyers have a realistic acceptance of bias’ role in jury decision-making, he believes that they can still prevail.

“I think any lawyer who expects to go into the courtroom and try a case needs to recognize that there are some general biases that are there,” he said. “If you’re not aware of them or if you’re not willing to accept them, and you think that you can just lay out the facts like you’re throwing dice, you’re sadly mistaken.”

Questions or comments can be directed to the writer at: dick.dahl@lawyersusaonline.com

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