By Craig C. New & Chris Dominic
Whether you are going to trial, settling a case, developing case strategy or simply evaluating a potential case, it is important to have a sense of the attitudes Oregon jurors hold toward issues related to your case. More than any other measurable juror characteristic, attitudes are the best predictors of how a juror will reason through various case issues and ultimately come to a final judgment. Decades of social psychological research have shown that attitudes can affect, or bias, all stages of information processing, including the way an individual attends to, processes and remembers information. The attorney who has knowledge of local jurors’ attitudes no doubt holds an advantage over the adversary in virtually all aspects of litigation.
This is not to say that juror attitudes are a perfect predictor of juror judgments, or that knowledge of attitudes can consistently and accurately predict case outcomes. A persuasive story supported by strong, clear evidence can, and often does, overcome the biasing effects that attitudes may exert on jurors’ decision making. An awareness of juror attitudes, however, is a key consideration in developing a persuasive story. Further, in times when jurors are confused by the case or story, when information the jurors desire is unavailable or inadmissible, or when both sides of the dispute have closely matched cases, the influence of juror attitudes becomes even more important in determining how jurors will react to and decide the case.
The question becomes whether the fact pattern in a particular case will interact with juror attitudes in a way that places the attorney at a competitive advantage, or is the attorney at a competitive disadvantage when she or he walks into court? Over the years, mock trials and focus groups have produced valuable qualitative results on a case-by-case basis. However, before now, there had been no large, thorough, quantitative study of juror attitudes in the Northwest.
To fill this void, our firm surveyed more than 1,000 jury-eligible residents in the Northwest on several topics of interest to the legal community. The data collection was completed in January 2003. The main topics surveyed were attitudes toward corporations, employment issues, healthcare and medical malpractice, insurance and general litigation attitudes. After some preliminary analysis, a sneak peek at the findings was presented to a full house in a seminar at the Oregon State Bar Center on April 2, 2003.
Attendees at the OSB seminar offered helpful feedback on aspects of the survey that they found most useful. Most helpful to us, however, was the feedback that was offered concerning information or further analysis that was not presented, but that was of interest to area legal professionals. It is with this feedback in mind that we present the following article.
Many attendees expressed an interest in learning more about differences between various subsets of the data. After highlighting some of the overall findings of the survey specific to Oregon respondents, this article will discuss some significant differences found in three sets of comparisons: (1) Oregon versus the Northwest,1 (2) Oregon versus Washington and (3) rural Oregon versus urban Oregon.
Major Overall Findings
Fair and impartial jurors are the cornerstones of the American judicial system. With this in mind, we asked our respondents, 'If you were a juror, do you think you would favor the plaintiff or defendant at the start of trial?' In theory, one would expect most respondents to favor neither party. Anyone who has witnessed a typical jury selection process can attest to the abundance of jurors who, when questioned, proclaim their impartiality and insist that 'setting aside' their attitudes will be of little difficulty. However, the survey showed that only 38.7 percent of Oregonians are truly impartial and favor neither party at the outset of trial. The remaining respondents were evenly divided between favoring the plaintiff or the defense.
This might lead one to ask why almost two-thirds of jurors reports being inherently biased in a survey, but virtually all jurors in court are certain of their impartiality. The answer is due to what social scientists refer to as 'social desirability' effects. Research has shown that in a public setting, especially in the presence of authority figures (such as a judge), people are motivated to present themselves in the most favorable light. Potential jurors know what is expected of a 'good juror,' and most strive to embody these expectations when called upon to do their civic duty. The more private and anonymous nature of the survey produces more candid responses than the stressful and public nature of the courtroom. This is also why supplemental juror questionnaires are such effective tools in jury selection.
The above question was also asked in relation to specific types of litigation.
Patient vs. Doctor: When asked about their leanings in a medical malpractice case, 38 percent of respondents reported they would lean toward the plaintiff, with another 30 percent leaning toward the defendant. Only 32 percent reported no leaning in a medical malpractice case.
Employee vs. Employer: In a case where an employee is suing his/her employer, half of the respondents said they would lean toward the employee at the start of the trial. The other half of the respondents was evenly split between the remaining categories, with 25 percent leaning toward the employer and 25 percent favoring neither side.
Person vs. Corporation: Respondents were asked which side they would favor if a person was suing a corporation. To this question, 60 percent of the respondents reported favoring the plaintiff, 24 percent favored neither party and 16 percent favored the defendant.
Person vs. Insurer: Finally, when asked about their leanings in an insurance case, Oregon respondents overwhelmingly favored the plaintiff with 68 percent of the vote. Twenty-two percent of respondents stated they favored neither side of such a case, leaving only 10 percent who would lean toward the insurance company.
The most significant overall finding is that in each question above (except the most general litigation question), there is a general bias toward plaintiffs. The largest of these biases appears in cases against insurance companies, and the smallest in medical malpractice cases. One possible explanation for this finding has become apparent after years of reviewing supplemental juror questionnaires: One of the questions we typically ask in these questionnaires is for the potential juror to agree or disagree with the statement, 'If a case makes it to trial, it must have some merit.' A surprising number of people agree, and even strongly agree, with that statement. This is indicative of many jurors’ perception that judges perform a strong gatekeeper function, and keep their courtroom clear of frivolous lawsuits. This perception creates an advantage for the plaintiff’s attorney in several instances.
Having reviewed some overarching findings, we now turn to the comparisons of various groups.
Oregon versus the Pacific Northwest
One of the earliest findings of the study was that, in general, juror attitudes in Oregon strongly paralleled the attitudes of jurors in the Northwest. In fact, when comparing Oregon to the rest of the Northwestern states as a whole, there were only two significant differences.2
Employee rights are more strongly supported in Oregon. Survey respondents were asked to express their agreement, using Likert-type scales (strongly agree, somewhat agree, somewhat disagree or strongly disagree), with the statement, 'Employee rights have gone too far.' Among the respondents who were more supportive of employee rights (i.e., disagreed with the statement), Oregon respondents expressed significantly stronger support for these rights than did the rest of the Northwest. Only one in five Northwest respondents 'strongly disagreed' with this statement, compared to 32 percent of Oregonians. Among respondents who were less supportive of employee rights (i.e., agreed with the statement), there were no statistically significant differences between Oregon and the rest of the Northwest.
Strongly held attitudes are important to note, because stronger attitudes will typically produce a stronger bias. Stronger attitudes are also more easily accessible, more often utilized, more extensively developed, more deeply interconnected with other attitudes and more resistant to change.
Oregonians are more suspicious of corporate 'cover-ups.' With the many recent corporate scandals, it is not surprising to find that many people harbor a certain distrust of 'Corporate America.' Respondents were asked, 'How often do you think corporations try to cover up the wrongdoing they do – often, sometimes, rarely or never?' Less than 5 percent of both Oregon and the Northwest answered 'rarely' or 'never.' However, among those respondents believing corporate cover-ups to be a more frequent occurrence, Oregonians were significantly more likely to believe it to happen 'often' (Oregon=73 percent; Northwest=62 percent), rather than only 'sometimes' (Oregon=22 percent; Northwest=34 percent).
One of the main origins of attitudes is beliefs; stronger beliefs tend to produce stronger attitudes. The findings from the survey suggest that although anti-corporate attitudes are no more common in Oregon, they are stronger here than in the rest of the Northwest.
Oregon versus Washington
The desire to compare Oregon with Washington makes sense not just because so many attorneys practice in both states, but also because of natural curiosity about our neighbors from a state that seems so similar, yet so different. As with the earlier findings, in most areas of the survey Oregon and Washington respondents were quite similar. However, on one topic the two groups diverged. Specifically, a pattern of differences between the two groups suggests that Oregon jurors have a stronger negative attitude toward corporations than Washington jurors. This is not to say that more people in Oregon like or dislike corporations than do in the rest of the Northwest. Rather, among those who hold unfavorable attitudes toward corporations, those attitudes tend to be stronger for Oregon jurors than for Washington jurors.
The first two differences comprising this pattern mirror the differences found earlier when comparing Oregon to the rest of the Northwest as a whole. First, employee rights found stronger support in Oregon than in Washington. Recall that in Oregon, 32 percent of respondents strongly disagreed that 'Employee rights have gone too far.' Only 19 percent of Washington respondents disagreed strongly with this statement. Second, Oregonians are more likely to believe corporations 'often' cover up the wrongdoing they do, compared to Washington respondents (73 percent and 61 percent, respectively).
The third difference is accompanied by some good news for corporations. Respondents were asked, 'How favorable is your opinion of corporations, in general?' (responses: 'very favorable,' 'somewhat favorable,' 'somewhat unfavorable,' 'very unfavorable'). Over two-thirds of both regions have at least a 'somewhat favorable' view of corporations (in general). However, it is again only among those who hold unfavorable attitudes where differences appear. Unfavorable views toward corporations tended to be weaker in Washington (somewhat unfavorable: Oregon=24 percent; Washington=28 percent), and stronger in Oregon (very unfavorable: Oregon 12 percent; Washington=5 percent).
The fourth difference was found when respondents were asked how their opinions of corporations had changed in the past five years. Sixty-one percent of Oregon respondents said their opinion of corporations had 'gotten worse' in the past five years, compared to only 51 percent of Washington respondents. Of those respondents who reported that their opinions had 'stayed the same,' Washington respondents outnumbered those from Oregon (Oregon=34 percent; Washington=42 percent). A quick calculation confirms that few people’s opinion of corporations has improved recently.
This pattern of differences portrays a unique area of juror attitudes where significant differences are found between Oregon and Washington. The stronger anti-corporate bent found in Oregon is of particular interest of those of us who practice in both states. The knowledge of such differences in attitudes can give the informed attorney a competitive advantage over opposing counsel.
'Urban' versus 'Rural'
Several attendees of the OSB seminar expressed interest in the differences between urban and rural jurors. Unfortunately, definitions of 'rural' and 'urban' are not universal, and black-and-white ways to distinguish the groups are imperfect, but necessary for our purposes. For this analysis, we compared Oregon respondents living in the 503 area code ('urban') with those from all other Oregon area codes ('rural'). This division is the most justifiable of those at our disposal, given the measures available to us, but the findings below should applied with this in mind.
'Rural' jurors provide home field advantage to regional corporations. There is always a question of 'home field advantage' in litigation, and rural respondents are more likely than their urban counterparts to view Pacific Northwest corporations as more ethical than corporations in other areas. More rural than urban respondents reported a belief that regional corporations were 'more ethical' (rural=36 percent; urban=20 percent). However, over half of the respondents in both groups believed regional corporations were equally as ethical as those outside the Northwest.
'Rural' respondents are more skeptical of medical malpractice claims. Medical malpractice cases are typically one of the most challenging types of case to try — and win. Our research suggests plaintiffs have a greater challenge in rural than in urban venues. Respondents were asked to estimate the percentage of malpractice lawsuits that are 'justified.' Fifty-one percent of rural respondents estimated that less than half of the medical malpractice lawsuits that are filed actually have merit. This figure is compared to only 34 percent of urban respondents who estimated a percentage less than 50.
'Rural' respondents believe people cheat insurance companies more often. Although this finding remains one step back from support for insurance companies, rural respondents in the survey believed insurance companies were more often taken advantage of by consumers then did urban jurors. Among rural respondents, 55 percent believe that people take advantage of their insurance company 'often,' compared with only 41 percent of urban respondents revealing the same belief. Urban respondents were more likely than those in rural areas to believe insurance companies are taken advantage of 'sometimes' (49 percent and 30 percent, respectively).
These findings are potentially very powerful if utilized effectively. By considering the likely perceptions that a jury will have when evaluating your case, you will have a better sense of estimating arbitration, mediation or jury outcomes. When strategizing about the kind of case you want to advocate, you will have a better sense of what themes are likely to be persuasive and which are likely to be met with skepticism. While preparing for trial, you can guide deposition discovery with questions you may have otherwise not considered. These questions, if asked skillfully, may produce answers that help you develop your case story favorably. Furthermore, you can prepare your witnesses so that they understand how and why your case themes are so important.
If the case goes to trial you can obtain a potential advantage in jury selection by asking questions — either orally or through a supplemental juror questionnaire — that identify high risk juror attitudes instead of focusing on demographics which are of much lower value. During your opening statement and closing argument you can have demonstrative exhibits that emphasize your strengths and deemphasize your potential weaknesses.
By considering the most likely attitudes you will find on your jury as early as possible in the litigation process, you can capture a substantial competitive advantage at the earliest possible point in the litigation process while also having an influence on the value and ultimate outcome of your case.
1. For purposes of this study, the Northwest was defined as the states of Alaska, Idaho, Montana, Oregon and Washington.
2. The phrase 'significant difference' indicates a statistically significant difference at a=.05.
ABOUT THE AUTHORS
Craig C. New, Ph.D. is the director of research and Chris Dominic the president of Tsongas Litigation Consulting, Inc., a Northwest trial consulting firm with offices in Portland and Seattle. The authors can be contacted at firstname.lastname@example.org and email@example.com.
© 2003 Craig C. New & Chris Dominic