By: Dr. Ken Broda-Bahm -
The situation has been noted with a surprising frequency: Instead of filing in quietly to fulfill their civic duty, prospective jurors in voir dire have expressed a deep frustration over the litigation process and a deep concern over serving. Most recently, an article in the National Law Journal noted this month that in some cases, prospective jurors have been on the verge of open rebellion, and many have suspected that economic pressures have played a very significant role. After all, for many of those who have a job and fear losing it, the prospect of being absent from work for several weeks while sitting in judgment over someone else's fortunes doesn't necessarily sit well. As trial consultants who have sat in recent trials around the country, we've certainly noticed a few trends:
- A growing number of true (or at least passionate) hardship claims based on employment,
- An increasing willingness among many judges to be lenient on work-related hardship, and
- An irritation among some in the pool over the litigation process itself.
What these simple observations and the recent comments in the legal media don't get to, however, is the most interesting part: Given that juries will still be seated, what is the effect of the revised composition once those with hardships are dismissed? Based on some recent research, as well as our own data, we feel that the net result is generally to aid defendants. There are two reasons for this. One, according to psychological analyses, those economically vulnerable individuals who are most likely to win a hardship claim are also more likely to buy into the pro-plaintiff mindset referred to as an "external locus of control," which is basically the opposite of a high "personal responsibility" point of view. Two, our own national survey research has shown that those most likely to believe themselves to be economically harmed and/or vulnerable are the same individuals who are likely to harbor the greatest anti-corporate bias, which is most likely to play against defendants. Thus, if your judge is more open to hardship claims, then the result may be to create a more pro-defense panel.
Let's look back at those two reasons for believing that the economically vulnerable, high hardship jurors are more likely to be tougher on the defense. The idea of "locus of control" has long been seen as a short hand way to differentiate those who are, initially at least, more likely to support a plaintiff over a defendant. Briefly, the idea is that people in different contexts gravitate toward one of two poles: on the one hand, an "internal" locus of control that sees the individual in ultimate control over consequences (e.g., "I failed that test because I didn't study hard enough,") or an "external" locus of control on the other hand, that attributes consequences to factors outside the individual (e.g., "I failed that test because the professor asks unreasonable questions"). Obviously, it is in the nature of a plaintiff's position to be blaming an external, and it is generally the defendant's position to be calling for personal responsibility. If economic vulnerability is more likely to pull individuals toward the "external" side of the spectrum, then it could be seen as fostering a pro-plaintiff bias.
Beyond the theory, the tendency to see a higher "external" orientation among the economically vulnerable is also seen in the research. A study by Christie & Barling (2009), for example, looked at the feelings of personal control experienced by Canadian workers over time, and found support for a model in which greater economic stress and vulnerability was associated with lower feelings of personal control. "Those lower in socioeconomic status," the authors write, "typically face environments that produce work stress and deplete personal control." In other words, those on the lower end of the economic scale are less wedded to a belief that individual factors control their destiny, and more susceptible to the suggestion that this destiny can be laid at the feet of others. So, in short, they are primed for the more typical plaintiff's script.
That observation is in line with our own national research. Over the years, we've conducted annual random surveys of the juror-eligible population around the country. Starting in 2009, we were able to note a clear division between those who are and are not concerned over economic issues. For example, the chart below contrasts how those two groups answered the question of how often a large corporation would lie if it could benefit financially from doing so.
In a clear and statistically significant relationship, those who are very concerned on economic issues are also those who are much more likely to say that a corporation would "often," or "almost always" lie if it could benefit financially from doing so. Based on this, the main message for defendants is that you should be generous on cause challenges if the judge invites your opinion, and if the pool is, as a result, more selective, then you should be a little less afraid of trials than you otherwise would be.
- The Hardship Lollipop: Approach Juror Hardship Strategically
- In Voir Dire, Improvise With Structure
- In Employment Cases (and All Cases), Keeping it Simple is Smart
Christie AM, & Barling J (2009). Disentangling the indirect links between socioeconomic status and health: the dynamic roles of work stressors and personal control. The Journal of applied psychology, 94(6), 1466-78 PMID: 19916656
Photo Credit: Moneyblognewz, Flickr Creative Commons