Overcoming Jury Bias

By Howard L. Nations

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  1. Jurors Decide Cases on Perceptions
    1. Jury Bias: Preloaded Perceptions
    2. Multiple Roles of Bias in Decision- Making
    3. From Bias to Beliefs
    4. Bias Fill the Gaps
    5. Model Formation During Primacy
    6. Coping with Long-Held Biases & Beliefs


  1. Ride the Wild Pony
  2. Break the Stallion
  3. The Spielberg Method
    1. Acknowledge and Justify Belief
    2. Link Yourself to the Belief
    3. Link The Client to the Belief
    4. Build a New Belief System
  4. The Conscious Mind Appeal (Logic)
    1. The Conscious Mind Can Abstract
    2. The Conscious Mind Distinguishes Reality From Non Reality
    3. The Conscious Mind and the Rule of Three
    4. The Conscious Mind is Detail-Oriented
    5. The Conscious Mind Deals with Negatives
  5. The Unconscious Mind Appeal (Emotion)
    1. The Unconscious Mind Records a Total Experience
    2. The Unconscious Mind and Reality
    3. The Unconscious Mind Experiences in the Present Tense
    4. The Unconscious Mind Deals with Unlimited Information
    5. The Unconscious Mind Cannot Interpret Negatives
    6. The Unconscious Mind Handles Information Emotionally
    7. Retention and Recall
    8. The Role of the Five Senses
    9. Mnemonics
    10. Negatives and the Unconscious Mind
    11. Present Tense Appeal
    12. Attorneys Must Create Perceptions of Reality
  6. Using Similarities to Overcome Jury Bias
    1. The Search for Similarities
    2. The Effect of Similarities
    3. The Creation of Similarities
      1. Neurolinguistic Programming
      2. Tap Into the Listener’s Model
      3. Communicate With the Unconscious Mind
      4. Using Jurors Frame of Reference
  7. Utilizing Forensic Principles to Cope with Bias
    1. The Principle of Reciprocity
    2. Jurors Use Trait Associations to Organize Perceptions
    3. The Attribution Theory on Causation Issues
      1. Reactive Attribution
      2. Purposive Attribution
  8. Goals of the Advocate to Cope With Bias
    1. Inspire the Jurya. Creation of Perceptionsb. Validation of Perceptionsc. Motivation of Perceptions
    2. Influence the Jury
      1. Jurors Seek to Make Sense Out of Their Environment
      2. Consistency in Communications
      3. Data Which Influences Jurors
        1. Jurors are Impressed with Hard Data
        2. Jurors are Impressed with the Court’s Instructions
        3. The Principle of the Value of Scarcity
        4. Objections Increase Perceptions of Value
        5. Scarcity of the Expert
      4. Jurors are Subject to the Anesthetizing Effect
      5. Attorney-Client-Witness Credibility
        1. Jurors Search For and Appreciate Credibility
        2. Achieving Credibility
          1. Competence
          2. Trustworthiness
          3. Dynamism
        3. Influences on Perceptions of Credibility
          1. Personal Attributes
          2. Self Monitoring Characteristics
          3. Reputation
          4. Fairness
        4. Attorney’s Goals to Establish Credibility
          1. Establish Rapport
          2. Importance of Integrity
          3. Attorney-Client Relationship
          4. Display Professional Demeanor
          5. Communicate Simply
      6. Arenas of Influence
        1. Witness Stand
        2. Courtroom
        3. Courthouse
        4. Extrajudicial Considerations
      7. The Real Final Argument
        1. Identifying Roles Jurors Play
          1. Juror Advocates
          3. Bench Warmer
          4. Negotiator
          5. Hangers
        2. Selection and Influence of Jury Leaders
          1. Ascribed or Achieved Status
          2. Leaders Are Confident and Communicative
          3. White Males Prevail
          4. Leaders Use Communication Skills
          5. Identifying Juror Advocates
        3. Arming Juror Advocates
    3. Instruct the Jury
      1. Jurors Look to Attorneys for Guidance
      2. Lead Jurors Through Suggestions
      3. Advise Jurors of Duties and Responsibilities
      4. Sample Argument Regarding Duties
    4. Empower the Jury
      1. Jurors Do Not Understand Their Power
      2. Use of Rhetorical Questions
      3. Imbue Jurors with a Sense of Power
  9. Fill the Gaps in the Evidence
  10. Creating, Adapting, and Anchoring Themes
    1. Developing Case Specific Themes
    2. Adapting Standard Themes
    3. Thematic Anchoring
      1. Thematic Anchoring
        1. Anchoring Through Repetition
        2. Anchoring Technique
        3. Collapsing an Anchor
        4. Anchor Recalls Entire Experience
  11. Structuring Power Themes to Cope with Bias
    1. Psychological Principle of Structuring
    2. Psychological Tools of Structure
      1. Primacy
      2. Neurolinguistic Programming – Pacing
        1. Pacing to Create Similarities
        2. Matching and Mismatching
        3. Pacing at all Levels
        4. Pacing in the Primary Representational System
      3. Embedded Commands
        1. Communicate a Command to the Unconscious Mind
        2. Preface, Pause, Voice Change and Command
      4. The Zeigarnik Effect
      5. Recency
    3. Rhetorical Tools of Structure
      1. Triad
      2. Parallel Structure
      3. Antithesis
      4. Repetition
        1. Repetition At The Beginning
        2. Refrain
        3. Echo Effect
        4. Augmentative Repetition
        5. Repetition of the Central Theme
      5. Thematic Reversal
      6. Rhetorical Question
      7. Alliteration
      8. Understatement
      9. Grammatical Inversion
      10. Rhythm
    4. Verbal Tools of Structure
      1. Power Word Choices(1) Abstract vs. Concrete(a) Simulative Concrete Words(b) Deliberative Abstract Terms(c) Preloaded Word Selection and Avoidance(2) Catch Phrases(3) Emotive Words(4) Logical vs. Emotional Words(5) Short, Long, Old & New Words(6) Bilingual: Technical & Lay(7) Use of Jargon(8) Slang(9) Vernacular or Colloquialism

        (10) Language of the Case

      2. Analogies
      3. Metaphors
      4. Similes
      5. Establish Sense of Humor
      6. Anecdotes
      7. Quotes(1) Prose(2) Poetry(3) Biblical Quotes & Parables(4) Song Lyrics(5) Literature(6) Witnesses/Parties(7) Medical Quotations
      8. Adapting Standard Arguments(1) Pain and Suffering(a) Measuring Physical Pain and Suffering(b) Constitutional right to be free from pain(c) Pain is life’s window into hell(d) Job ad – catastrophic injury(e) Minimum wage(2) Value of Human Life(3) Full Justice
  12. Persuasive Communication of Power Themes
    1. Non Verbal Communication
      1. The Importance of the Pause
      2. Pacing the Jury
      3. Movements and Gestures
      4. Touching the Client
      5. Dressing for Summation
    2. Mood Transference
      1. Transferring a Feeling
      2. Transferring Factual Information
      3. Transferring Visual Information


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The purpose of this paper is to examine various approaches to coping with biases, beliefs and preloaded conceptions, particularly regarding the civil justice system, which citizens bring to the courthouse when called for jury duty. We overlay modern forensic psychological principles which have emerged from numerous studies of the decision-making processes of jurors onto persuasive techniques which have been used successfully for centuries. Finally, we examine twelve suggested methods to cope with jury bias. We also examine methods of creating, structuring and testing messages and themes as well as techniques for effective delivery of themes as a means of assisting jurors in setting aside bias. However, we begin where all persuasion begins: with Aristotle.


2300 years ago, Aristotle, in his Discourse on Rhetoric reduced the principles of argument to four major points. Examination of these four points reveals that they serve those of us who labor in the vineyards of litigation as well today as they have served Aristotelian scholars for 23 centuries.

Aristotle’s first principle: Well dispose your audience to you and ill dispose them to your enemy.

It is not sufficient to make your own case but it is also necessary to affirmatively attack your opponent’s position, particularly on their most salient points. We often win the battle on the case in chief and lose the war through ignoring the opponent’s case. Ideally, co-counsel in your office should be assigned the task of preparing fully the other side’s case from their perspective. In doing so, they will peruse the strengths and weaknesses of the opponent’s case while viewing your case from an adverse perspective. This will afford you the opportunity to analyze your opponent’s viewpoint in exploiting your weaknesses and launching attacks on your strengths. This leads to Aristotle’s second principle.

Aristotle’s second principle: Maximize your salient points and minimize your weaknesses.

It is necessary to determine the thrust of your case early in the evaluation process and design your evidentiary presentation around a few well defined points, i.e., develop a theme. With respect to the weaknesses in your case, deal with them directly. Either dispel them, distinguish them or be the first to confront and minimize them prior to your opponent’s positive use of them against you. Most importantly, don’t ignore them.

The principle of inoculation applies here. By directly addressing your weaknesses before the opponent gets the opportunity to do so, you are able to weaken the attack and choose the language with which the weaknesses will be first discussed to the jury. This will convey the important and accurate impression that you are being straightforward and honest with the jury which enhances your own most important characteristic, i.e., credibility. By openly revealing weaknesses in your case and carefully couching your discussion of them, you may successfully inoculate the jury against the inevitable attacks by your opponent.

With respect to maximizing your salient points, this is simply done through the development of themes in your case which convey your well-defined messages in simple, easily understood and memorable language which embraces the facts and provides motivation for the desired verdict. Your theme should be based upon common sense which is the hallmark of the collective wisdom of the jury. Your themes should be delivered through the use of repetition throughout the trial, which brings us to Aristotle’s third principle.

Aristotle’s third principle: Refresh the memory of your audience frequently. Napoleon Bonaparte, who was a great orator as well as a military genius said that only one rhetorical device was needed to persuade: “repetition, repetition and repetition”. Repetition as used in the context of litigation means developing themes, and the messages inherent in the themes, and embedding the themes and messages throughout the trial through thematic repetitions from various evidentiary directions.

Consistency and repetition are the hallmark of persuasive presentation of themes. Build thematic repetition by threads of consistency running throughout lay testimony, expert testimony, demonstrative evidence and documentary evidence, which are totally consistent with counsel’s comments on voir dire, opening statement and summation. Proper thematic development through repetition achieves a coherent presentation which coalesces in the evidence and culminates in persuasive presentation of the thematic arguments during summation. Themes and messages should be introduced during voir dire and opening statement and developed fully in a combination logical and emotional appeal by counsel during summation. This brings us to Aristotle’s fourth principle of persuasion.

Aristotle’s fourth principle: Execute the required level of emotion. This is probably the area in which juries are most disappointed by trial attorneys. Forensic psychologists tell us that the one word which would be most often used by jurors to describe jury service is “boring”.

Advocates fail to execute the required level of emotion by adequately involving jurors in the trial of the case. All too often, jurors sit as mere spectators to occurrences in the courtroom without being reminded that they are an integral part of the system. Counsel should strive to empower the jury with the early understanding that they are the sole judges of the factual disputes, the credibility of the witnesses and the amount of damages to be awarded in the case. Very early in the voir dire examination, make jurors understand the extremely important role which they are playing in the adversary system so that they do not view the trial as a spectator, but rather appreciate the importance of their position.

Jurors get less than they expect from advocates and when we disappoint jurors, they will return the favor in kind. There is a major place for emotion as a persuasive tool in the trial and that time is during summation. However, this is not emotion for the sake of emotion and must be distinguished from an appeal for sympathy. One of the purposes of this paper is to discuss how to get jurors to confront the plaintiff’s physical pain and suffering and mental anguish and how to involve the jury viscerally in the trial.

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A. Jurors Decide Cases on Perceptions

Jurors do not decide cases based upon reality. Why? Because unless the juror was standing on the corner and witnessed the collision and color of the traffic signal, the juror does not know what reality is. Jurors base their decisions upon their perceptions of reality. Therefore, it is relevant for advocates to consider at least six broad based sources which affect jurors’ perceptions upon which they base their decision. These include the beliefs which the jurors have before entering the courtroom, i.e., biases; everything that they observe during the course of the trial, in and out of the courtroom; the evidence presented and the credibility of the witnesses; persuasion by counsel; the court’s charge; and persuasion by other jurors.

1. Jury Bias: Preloaded Perceptions – While theoretically, the perceptions of reality are created in the minds of the jurors through evidence elicited from the witness stand and through the documentary and demonstrative evidence which the court allows into evidence, we must never underestimate the importance of the biases and preloaded perceptions which the jurors have in their minds as they enter the courtroom for the first time and how important these biases and perceptions are to the decision-making process.

For example, many jurors who are called to be the decision-makers in a case involving medical negligence will begin the decision-making process simply upon learning that this is a “medical malpractice” case. According to Dr. Ellen Leggett of the Leggett Jury Research, LLC, their database reflects that one-third of jurors nationally believe that the people who file medical malpractice cases are looking for easy money; two-thirds believe that plaintiff lawyers pressured patients into filing malpractice suits; many believe that malpractice cases are driving up their medical insurance rates, and half of the jurors believe that malpractice cases are ruining the health care system in this country.1

The initial juror assumption upon hearing about a medical malpractice case is that it is a frivolous lawsuit and the health care provider who is the defendant is assumed to be the ‘victim’ in the case.

Therefore, the skilled advocate will give careful consideration both to the biases, i.e., preloaded perceptions with which jurors enter the jury box in their particular case and to the advocate’s role in coping with the biases and in creating new perceptions upon which the jury will decide the case at bar.

Perception is really each person’s own vision or version of reality. Perceptions have effect on the conscious mind. When we communicate we take action based on what we perceive to be the facts or the truth. Perception is each individual’s picture of reality. When we talk to people we communicate from the vantage point of the other person’s perceptions of reality – his or her own model of the world. The skilled trial lawyer understands that each juror sees the world not as it is but as he or she is. Understanding the biases which each individual juror brings with them to the jury box is an important element in effectively framing the story which the attorney will tell through the evidence to influence the juror’s perceptions of the case.

Magicians understand the principle of clinging to perceptions. They use this principle to create miracles. They know that if they can fool our senses into perceiving that something is so, we will believe it. Once we believe that something is so, even though it is not, we accept it. In fact, something else is really taking place. But that doesn’t matter to our senses. We continue along with a certain belief. We believe the magician’s assistant is in the box. This is not so. We are then faced with the surprise ending when we find the magician assistant is gone and is appearing from another point on the stage. Because our reality is based on perceptions, on what we perceive to be true, we have been fooled.

The importance of tenaciously clinging to perceptions is a principle that is very important to lawyers. He or she must understand that it is not only whether the adverse witness is telling the truth on the stand that counts. What counts is whether or not the jury is going to perceive that the witness is telling the truth. The witness may well be lying, but if he or she is perceived as truthful, they can still carry the day. On the other hand, our truthful witness, because of external cues, nervousness and fear, may well be telling the truth but may be perceived on the conscious or unconscious level as deceitful. In that case, we lose. What matters is that the witness is perceived as being untruthful, not what is really true. Perceptions of reality often prevail over reality. That is why it is important to understand that we have to deal with the jury’s perceptions of reality and what affects those perceptions throughout the trial. All communication is based on perception. It is what is being perceived by the persons to whom we are communicating that counts.

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The use of preconceived patterns of behavior generalizations, belief systems, stereotypes and biases alter perceptions and those perceptions become fixed rapidly. Jurors come into the courtroom, many for the first time, carrying with them their own biases and belief systems. They have accepted certain generalizations about life, sex, race, etc. They each have their own model of the world that they are living by. That model is filled with stereotypes, generalized beliefs and biases.

2. Multiple Roles of Bias in Decision- Making – These preconceived notions, ideas, generalizations, and stereotypes which make up the collective biases of the juror are a very important source of information which the juror uses in decision-making. They use their biases and beliefs to reduce anxiety and to make certain assumptions about their own reality. Jurors are in an unfamiliar setting. They are looking for information. They are picking up all kinds of cues. They are sponges absorbing new information and sifting it through preconceived ideas to reduce their situation anxiety.

They want to know what is going on. They watch the parties and speculate on the nature of his or her personality. They observe the lawyer. They observe the lawyer’s relationship with court personnel. They are deciding whether to like the lawyer from the first moment they see him. They are sifting all of this information through using their own notions about lawyers, courtrooms, etc. They are in essence making judgments continuously about you and the client based on what they perceive to be true, both from the external cues that are being given them and from their own preconceived ideas and notions.

3. From Bias to Beliefs – From the moment jurors begin receiving new data verbally, visually and kinesthetically about the case, each individual juror begins to form their own paradigm of what the case is about and what their role in the case will be.

As jurors acquire new data about the parties and the issues in the case, this new data is filtered through a screen of the juror’s belief system, long held and newly acquired beliefs, biases and stereotypes.

As the new data collides with the biases, the juror’s model of the case emerges from the conflict and it is against this model that the evidence and events in the courtroom will be measured by the juror.

The juror’s model of the case, which is generally formed during the primacy portion of the trial, will form the basis of the juror’s perceptions of the case. As the perceptions are supported by evidence they slowly evolve into beliefs and the beliefs become the reality on which the jurors base their decisions, arguments and votes in the jury room.

4. Bias Fill the Gaps – As jurors receive information during the course of the trial, such information is tested against their model of the case and is either accepted, thereby enhancing the model, or rejected as being inconsistent with the model.

At the conclusion of all of the evidence, when the model has evolved into perceptions and then reality, bias plays its most important role: bias fills the gaps left by absence of evidence. It is incumbent on the skilled trial lawyer to be certain that there are no evidentiary gaps left in the evidence which will have to be filled by the bias of each individual juror.

This raises two major tasks for the trial lawyer in order to effectively cope with jury bias: 1) persuade the jury to accept your model of the case during the primacy portion of the trial, and 2) be certain to leave no gaps in your presentation of the evidence with will require that the jurors rely on their long held beliefs and biases to fill the gaps in the evidence.

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5. Model Formation During Primacy – Since each juror forms their own model of the case during the primacy portion of the trial, learned counsel should focus on assisting the jurors to accept counsel’s model of the case as their own.

Bias comes into play here because people use their own stereotypes, generalized beliefs, and biases to interpret ongoing external cues and form opinions very early in the trial proceedings. These opinions often become fixed rapidly. This is the psychological principle of primacy, which tells us that those facts which people first believe, they tend to continue to believe. We have a more difficult time reversing a fact in a juror’s mind once primacy has taken effect.

The primacy portion of the trial is considered by most experts to be the period of initial acquisition of information, voir dire examination, opening statement and the first witness. By the end of the first witness, each juror will have formed their own model of the case against which they will measure the new data and evidence which they receive thereafter. In the ideal situation, counsel’s themes for the trial will be accepted by the jurors during this vital primacy portion of the trial. Careful attention must be paid to the initial impressions which jurors form of your parties and trial team as soon as they enter the courtroom and begin acquiring new data.

Voir dire examination should be devoted to delivery of your themes and acquisition of as much information as possible concerning the beliefs, values and biases of each individual juror. Supplemental juror questionnaires can be very helpful in identifying beliefs, values and biases, particularly in courts where time for voir dire is limited or the judge conducts the questioning of the jury panel.

Opening statement provides the opportunity to further embed your case themes as part of each juror’s model of the case.

Finally, as part of the vital primacy portion of the trial, your first witness should be very carefully selected with the goal of helping the jurors to perceive, understand and adopt your model of the case as their own. Consider the following factors in selecting the first witness: a trustworthy, unimpeachable storyteller who can carry the theme and enhance the model. Obviously, this is an ideal scenario but it may be maintained as a goal.

For example, in a recent case in South Texas, involving a young man with a mild brain injury, the only issues were the existence, nature and extent of the brain injury. The first witness before this mostly Hispanic, catholic jury was the local priest who testified as to the extreme changes which he had witnessed in the young plaintiff after the head injury. He was a trustworthy, unimpeachable storyteller who carried plaintiff’s theme and enhanced the model.

Another consideration is that generally the plaintiff will not be the best person to call as the first witness for several reasons. First, with respect to impeachability, the defense is generally better prepared to cross examine the plaintiff than any other witness in the case. It is not advised to close the primacy portion of the trial with an effective cross examination by the opponent. Secondly, the plaintiff, as a party to the litigation, is less trustworthy than a more neutral or authoritarian witness. Finally, delivery of the theme and enhancement of the model is difficult for a party who has an obvious interest in the outcome the litigation.

6. Coping with Long-Held Biases & Beliefs – Long-held beliefs and stereotypes are not changed by simply presenting contradictory information. People often have generalized belief systems about certain groups in the community. These stereotypes may apply to either a demographic fact or a group or class of people. For example, to many Caucasian Americans, all Vietnamese are viewed through a racial stereotype, some engendered by bad experiences from the Vietnam war and some by being inculcated with the prejudice of others. This is a racial stereotype. Or some may believe that all people from a certain housing project are thieves and totally untrustworthy. This is a demographic generalization. Such beliefs can apply to inanimate objects or a whole profession; i.e., corporations do not make unsafe products, doctors do not make mistakes, and lawyers are overpaid, greedy and bring frivolous lawsuits. In a product liability or a medical negligence case in which you are plaintiff’s counsel, you must know how to recognize such beliefs and cope with them on voir dire examination through justification, linking and building a new belief system. These longevity generalized beliefs may be fixed conclusions either in a given juror’s mind, or the group as a whole.

Jurors tend to maintain such long existing stereotypes and general beliefs in one of the following ways:

  1. By ignoring contradictory information (which they often do);
  2. by interpreting the contradictory information so as to render it harmless to the original concept (they do this often), or
  3. by recognizing the original information as being inconsistent with new information but insisting on maintaining the original belief anyway (this can also happen).

Generalized belief systems die hard. They cannot be changed by simply presenting contradictory information. They are going to believe that stereotype no matter what you prove. For example, proving that the doctor made a mistake or fell below the standard of medical practice in the community may not be sufficient in a malpractice case. Jurors go to doctors. Jurors trust doctors. Jurors do not want to believe that doctors make mistakes. Jurors do not want to believe that the doctor who gave them a clean bill of health in their annual physical can possibly be mistaken. Therefore, simply showing that the doctor made a mistake or that he was negligent will often be ignored. So what do you do about these belief systems and how do you change them? How do you know during the primacy phase of the proceeding that the jurors are leaning in your favor? What considerations are involved in changing a pattern of belief that the juror brings with him or her into the courtroom?

How does one change stereotypes and other belief systems that preexisted in a particular juror and/or the community in general? Preexisting belief systems can never be changed by directly presenting contradictory information. No matter how much evidence you present that “corporations make unsafe products” or that “doctors make mistakes”, this will not change a preexisting belief system to the contrary. A very wise Alabama attorney, Greg Cusimano sums it up: ‘A man convinced against his will is of the same opinion still.’

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