A version of this article first appeared in Lawyer's Weekly USA.
De-programming Jurors During Voir Dire
Most jury pools are tainted against large damage awards due to
anti-jury propaganda; what plaintiffs' attorneys can do about it
by Amy Singer, Ph.D.
It's reality-check time for the plaintiffs' bar - a majority of prospective jurors across America are tainted, i.e., prejudiced against a key manifestation of plaintiffs' basic Seventh Amendment Rights - fair and full recovery for damages. We're referring to many if not most of the jurors you may seat now or ever seat again in the future.
Think not? You need look no further than your next case for proof - it's becoming increasingly difficult today for plaintiffs' attorneys to impanel individual jurors who can approach medical malpractice, injury, and similar cases with open minds concerning justifying large damage awards. Most believe that plaintiffs are being granted far too much money in terms of damage awards today.
Jury research shows most potential jurors are tainted
This prejudice against large damage awards seems to be widely held by prospective jurors throughout America, regardless of locale and/or demographics of individual jury pools. Research shows that most prospective jurors think that jury damage award amounts are extravagantly out of line; that large jury awards against physicians have resulted in exorbitantly prohibitive malpractice insurance premiums, which in turn are a major cause for increasing health costs; and that huge product and other liability damage awards are driving American business costs through the roof and American business competitiveness into the ditch.
Let's face it: in the court of public opinion, plaintiffs' rights are getting clobbered. The reason for this is clear: powerful, vested interests, who favor constricting our Seventh Amendment Rights by placing, among other limitations, a cap on plaintiffs' ability to recover for damages, have spent untold millions of dollars over the years to promote their position to the American public. As a result, the idea that jury awards are skyrocketing out of control has become part of our culture.
If you watch television, listen to the radio, or read newspapers or magazines, there is no way of escaping the message that juries are "unreliable" and "out of control" - it comes at you night and day, in every possible form, and from every conceivable angle. Is it any wonder that this anti-jury message has stuck with most Americans, who now consider it gospel? (Note: the vested interests who are so adept at pumping their anti-jury ideology into every nook, cranny, and corner of America are, at the same time, actively proselytizing regarding other closely-related themes: eliminating joint and several liability, reducing plaintiff attorney fees, barring recovery in some negligence suits, requiring that 75 percent of all punitive damages go to the state and not the plaintiff, and even eliminating the right to jury trials in certain cases.)
Who are the anti-jury forces?
The vested interests that have lined up against juries include many of the most powerful groups in America - major manufacturers, giant industrial concerns, the insurance companies, the health care industry, plus most of their lobbying groups - the American Medical Association, the American Hospital Association, the National Association of Manufacturers, the American Tort Reform Association, and the Washington Business Group on Health, among others.
These potent anti-jury elements are conducting, a relentless, scorched-earth propaganda campaign to massively manipulate public opinion. Money is no object which means that every conceivable means of public persuasion can be employed - sophisticated public relations campaigns; hand-tailored communications programs targeting the nation's most respected citizens and primary molders of public opinion; speeches and lectures; books and articles; radio, tv, and print advertising; direct mail (consider the dire warnings about the need for tort "reform" that are printed on the stuffers insurance companies regularly (and insidiously) mail to their customers along with their statements), and on, and on, and on.
These groups have been enormously successful in their propaganda efforts. They have successfully converted a large number of Americans - and more to the point, an equal percentage of potential jurors - to their viewpoint against juries.
They are particularly adept at using massive campaign contribution funds to sway lawmakers. Many of the interests that so bitterly oppose the continuation of Seventh Amendment Rights in their current, time-honored format are the same groups that joined forces during the past two years to kill President Clinton's hard-fought Health Reform Initiative.
They and their allies spent over $300 million (more than the expenses associated with the Democratic and Republican 1988 and 1992 presidential nominations combined) to bury the president's health care bill. Their success in this endeavor attests to their enormous power. They wage all-out propaganda war and they don't take prisoners.
What a propaganda war can achieve
Prior to the introduction of the $300 million anti-health care propaganda campaign, most Americans were strongly in favor of government-sponsored universal health care. Once the campaign was completed, and the dust had settled, however, a majority of Americans had become far less certain of the need, or even of the desire, for having the government involved in a national health care program. (As a result of all the anti-health care din and clamor, Americans had somehow forgotten about two popular government-sponsored national health care programs, Medicare and Medicaid.)
As this amazing 180-degree turnaround in American public opinion clearly indicates, it is possible to radically alter the minds of millions of Americans. You just need to be willing and able to spend hundreds of millions of dollars to do so.
Alter minds? Lock minds up is more like it. And in this regard, it is my contention that the steamroller effect of the massive propaganda disinformation campaign against juries parallels classic "mind-control" techniques commonly associated with police states, cults, and fanatical religious groups.
A twofold problem
So what can plaintiffs' attorneys do to counter this egregious situation? The problem is twofold, with the immediate challenge of changing jurors' minds during voir dire, and the larger challenge of changing attitudes in the great court of American public opinion.
For problem one, attorneys must employ effective techniques to de-program potential jurors whose minds appear not only already made up, but also put to bed and fast asleep, regarding being opposed to large damage awards; and for problem two, the plaintiffs' bar must become more focused, industrious and creative to positively influence public opinion toward juries.
Let us first consider part one of the problem, i.e., de-programming jurors so they can objectively consider the issue of large damage awards. I use the term "de-programming" purposely. When it comes to the subject of large damage awards, many jurors in voir dire may exhibit some of the same "programmed" mannerisms, but in far milder manifestations, that are often associated with members of fanatical religious sects and cult mind-control groups.
Getting inside jurors' heads
To be able to impanel jurors who can approach the issue of damage awards with open minds, plaintiffs' attorneys must first understand the mentality of typical jurors. Trial consultants trained and practiced in psychology know that jurors, as most people, are "cognitive misers," i.e., they don't like to think. Most people are content to form their opinions on the basis of stereotypes and old wives' tales, i.e., givens that are not really given.
Jurors are no different. For years they, along with most other Americans, have been the targets of a highly sophisticated, manipulative, and enormously compelling propaganda campaign. This campaign casts serious doubts about the reliability of juries and posits that most jury damage award amounts are too high. As a result, most prospective jurors, as most Americans, have come to accept these propositions uncritically as fact.
Voir dire - an opportunity to change jurors' beliefs
Most attorneys think of voir dire strictly as the legal process whereby they select (or more accurately, de-select) jurors. But voir dire is also a psychological process in which 12 individuals are, in effect, being cued by attorneys (in most cases, of course, quite unintentionally) to react at a subconscious level according to their individual beliefs and prejudices.
Normally, you cannot change a person's basic beliefs and prejudices, which derive from his or her most meaningful life experiences. (An example of a life-experience belief: if a man was brutally mauled as a young boy by a large, black-haired bulldog, he probably will make sure as an adult to stay as far away as possible from large, black-haired bulldogs - automatically (subconsciously) assuming (believing) that such dogs will surely attack him if they get the chance.)
But attorneys need to understand that prospective jurors' predictable predispositions against large damage awards will not be, in most cases, primal, life experience beliefs. They are rather mere casually-learned beliefs that carry little or no emotional weight in jurors' minds (e.g., the deep-seated alarm bells of terror that go off inside the mind of the dog-fearing man, when he turns the corner and is quite suddenly and unexpectedly confronted with a large, black-haired bulldog).
And since the prejudice against large jury damage awards is not a primal, life experience belief for most prospective jurors, it is very much subject to change. Which brings us to the primary point of this article: when the attorney orchestrates voir dire properly, it can be an uplifting, even a cathartic process for jurors, in which their prejudicial beliefs (e.g., jury damage awards are too high) can be changed.
Jurors may exhibit cult-like behavior
Second, attorneys should be aware that some jurors in voir dire may exhibit unusual characteristics when the issue of large damage awards is raised. When responding to questions concerning their views about jury awards, for example, their speech may sound a bit "robot-like" or scripted. Their eyes may seem to glaze over slightly. Some may even appear to be in brief "trances," physically present, but not completely there mentally.
In short, the demeanor of some jurors during voir dire may resemble that of cult group members; and in particular, cultists who are suddenly forced to confront a reality external to their protective cult environment. Of course, any demeanor changes in jurors will be far less obvious than those that would be expected with cultists. (These faint demeanor changes may, in fact, be noticeable only to a psychologist, psychiatrist, or other trained observer.)
The reason for these changes in demeanor, however, is very clear - when it comes to the topic of "excessive" damage awards, prospective jurors in voir dire already know the supposed "truth." And as "cognitive misers," they will find it easier to simply "close down" a little mentally, when the subject of damage awards is raised. It is much easier for them to "nod off" with their eyes open, and to answer questions with rote responses, than it is to think critically about the subject.
Attorneys must "wake up" jurors
That's why attorneys must use voir dire to "WAKE UP" jurors so they will be able to consider the issue of large damage awards more objectively. How is this done?
I always counsel attorneys that they should not "advocate" during voir dire, but instead should adopt a quiet, conversational tone when addressing jurors. This helps in eliciting useful information from individual jurors concerning their most deeply-held beliefs and prejudices. Jurors who turn out to be automatically prejudiced against the plaintiff's case can be struck for cause.
But a quiet, conversational tone is hardly the best way to "wake up" jurors. So for that portion of voir dire where attorneys must get prospective jurors to question their own possible prejudices against large jury awards, attorneys should take a different tack. They need to ask jurors a brisk series of questions about the topic.
In this way, the attorney can snap jurors out of their dull, "trance-like" states and get them to begin to question their own prejudicial attitudes regarding damage awards.
This interrogatory technique is similar to the one used by cult exit counselors to help bring victims of mind-control groups back to reality. It is based on the concept of providing fresh perspectives so the individual can begin to view his or her beliefs in a new, more objective light. Following, are some typical questions that can be posed:
Attorney: "Sir, what do you think of jury awards?"
Juror: "I think they are excessive."
Attorney: "On what basis do you make that judgment?"
Juror: "By the stories I see on TV or read about in the newspapers."
Attorney: "What do these stories report?"
Juror: "Huge jury awards are killing American business. Doctors' are sued so often they can't afford insurance. That sort of thing."
Attorney: "Why do you have insurance?"
Juror: "To protect me or someone else that I may injure."
Attorney: "And how do you think insurance companies make their money?"
Juror: "By not paying claims and by making good investments."
Attorney: "So, profits are dictated more by investments and not paying claims."
Juror: "Yes, I guess so."
Attorney: "Would it be, important, do you think, for insurance companies to keep information such as this out of the papers and off the TV?"
Juror: "I guess so."
Attorney: "Could that be a reason why you never thought about this before?"
Juror: "Could be."
Attorney: "On another tack, do you personally know anyone who received an award in court that was excessive?" (Note: For obvious reasons, this is an excellent question for an attorney to pose publicly in front of the other jurors when the attorney already knows the answer, based on a previously-filled out juror questionnaire.)
Juror: "I can't say that I do." (Note: Even if the attorney does not know how the juror may respond, the above question is still a relatively safe one to ask. Our firm's extensive jury polling data indicates that, in most cases, a minuscule percentage of jurors know anyone who received a damage award that they, the individual jurors polled, considered to be excessive. The one juror out of a hundred who does can be characterized as the exception that proves the rule.)
Attorney: "How many of you know someone who went to court but did not win, or who won in court, but felt that he or she did not receive a fair amount of money?" (Note: For obvious reasons, this question should only be asked if the attorney already knows the answer, again as per a previously-filled out juror questionnaire.)
Juror: "I do. My uncle spent over three weeks in the hospital due to a factory accident. He went to court, but didn't get a dime for his troubles. And he still walks with a limp." (Note: Attorneys may be surprised to learn how many jurors who, when asked, will remember someone who was hit by a car, who suffered due to hospital negligence, who was hurt while using an unsafe product, and who received little or no compensation for his or her injuries and troubles. Jurors just need to be prompted - either through voir dire or in the form of juror questionnaires - for many of them to recall that they personally know someone, or have heard of someone close-by, who received little or no financial satisfaction, in court or out, due to injury, accident, or negligent care.)
Getting "cognitive misers" to spend
The point of questions such as these is that attorneys need to get their "cognitive miser" jurors to spend, i.e., to think, to examine their premises, to cut through all the propaganda and malarkey they have been force-fed over the years concerning "excessive" jury awards, so they can begin to see the facts for what they really are.
This is how de-programming jurors works. The process depends for success on effectively employing goal-oriented communication techniques to promote new perspectives. Through it, jurors will be able to objectively test the reality of previous disinformation with which they were programmed, i.e., "most damage awards are excessive," and find it wanting.
The de-programming process works well when it is developed with juror psyches in mind. Still, it is no panacea - the attorney is not always going to be able to de-program each juror. The ones that cannot be budged should go for cause.
Of course, many attorneys will be concerned that, by introducing the subject of large damage awards in this manner, they may taint prospective jurors. But attorneys need to understand that most prospective jurors are already tainted, along with nearly everyone else in America. Attorneys who cannot accept this fact are in denial.
Attorneys must keep in mind that this "de-programming" process is designed to eliminate the effects of tainting that have already occurred. Plus, it offers an additional benefit: once jurors in voir dire begin to realize that they have been conned about jury damage awards by powerful but unseen forces, they are going to become very angry. Their anger will, in turn, make it more likely that they will go the other way when it becomes time for them to set a damage award amount should they rule for the plaintiff.
Facts, not fiction
When it comes to the subject of "excessive" jury awards, as weighed against the larger question of justice in and out of our courts for plaintiffs, truth is very much on the side of plaintiffs and the plaintiffs' bar. Let's put the propaganda aside and consider some facts.
The supposed jury crisis we constantly hear so much about today is based on several false claims. The anti-jury forces state that product liability cases cost U.S. businesses $100 billion a year. The true cost is $4 billion annually, according to the National Association of Insurance Commissioners. That's less than what Americans spend each year on dog food.
In terms of medical malpractice, Public Citizen Congress Watch reports that malpractice insurance accounts for less than one-half of one percent of total health care costs; and that doctors spend about the same amount of their gross income on "professional car upkeep" as they do on malpractice insurance. Only one out of 10 malpractice victims even file claims. Only one in 25 victims gets anything in the way of compensation. And of those who sue and are awarded damages, very few receive payments that are unjustified, according to a study published two years ago in the "Annals of Internal Medicine."
Nor is it true that runaway juries are coming down increasingly on behalf of plaintiffs. An authoritative study by Jury Verdict Research of Horsham, Pa., indicates that the proportion of personal injury cases won by plaintiffs dropped from 68 percent in 1989 to 52 percent in 1992. Furthermore, the study shows that average damage award amounts have hardly changed.
High stakes involved
Powerful business, industry, health, and insurance interests, along with their PR and publicity minions, have a tremendous stake in making it as difficult as possible for plaintiffs to successfully sue for damages. A case in point: medical negligence in hospitals is the third-leading cause of preventable death in America, accounting for 80,000 deaths annually, according to a Harvard University study. What would it be like if angry family members were able to successfully sue for full and fair damages in each of these cases?
Or consider how vital it now has become for the tobacco industry to limit plaintiffs' rights, in light of what we have learned during the past year or so concerning various tobacco companies' shady research and marketing practices; and of course, what subsequently appears to be their increased liability posture.
Must fight fire with fire
Which brings us to the second key challenge facing the plaintiffs' bar today, i.e., countering the massive anti-jury propaganda wave that continues to roar across America. Plaintiffs' attorneys must join forces and institute their own publicity and PR campaigns to educate American citizens about the truth concerning juries, damage awards, and related issues. After all, the truth is on our side.
This means that plaintiffs' attorneys should begin to redirect a portion of their marketing budgets away from cutthroat advertising against each other, and towards joint PR programs that promote plaintiffs' rights (along with the attorneys who advocate on behalf of plaintiffs). These communication programs should be both educational and image-building in nature.
The time to begin is now. The ability of plaintiffs to pursue their interests in court for full and fair recovery for damages is a time-honored and essential part of Americans' hallowed Seventh Amendment Rights. Today, however, this basic right of plaintiffs hangs very much in the balance.
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Amy Singer, Ph.D., is a nationally recognized authority regarding the psychology of jurors and the dynamics of a jury's decision-making processes. Dr. Singer is president and founder of Trial Consultants, Inc.®, of Miami, Dallas, and Tampa, one of the nation's oldest jury research and trial preparation firms; and of The Institute for Settlement Services, Inc., of Miami, a settlement intelligence services firm.