Social Science Research & the Courts

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    • 00:00


    • 00:11

      DAVE ZEHNER: We're trying to findif we can get some general things we can say about howjurors react in truck cases, in cases involving trucksand accidents.So let's start with the first one here.[VIDEO PLAYBACK]- And he always said trucks take longer to stop.- Yeah.[END PLAYBACK]

    • 00:29

      DAVE ZEHNER: So what does that tell usabout how jurors react to impersona-- or their feelingsabout how trucks are and truck drivers are.

    • 00:35

      SPEAKER 1: They're generally scaredand want to be more cautious around trucks, and hopefullythe trucks, themselves, to be more cautious.

    • 00:42

      DAVE ZEHNER: Yeah.They definitely want the truckers to be more cautious.And they expect them to take that extra space.Hi, my name is Dave Zehner.And I'm the founding partner of Clarity Partners TrialConsulting. [Dave Zehner, Lead Partner]Clarity Partners Trial Consulting is a full servicetrial consulting firm.We run all sorts of types of juror cognition exercises,including mock trial exercises, focus groups, opening statementstudies, and any other way we can

    • 01:03

      DAVE ZEHNER [continued]: determine how jurors are likely to reactto the themes of the case.And we help our clients determine whether or notthey should take their cases to trial, what are the advantagesand disadvantages of the different sides of the cases,and most importantly, when they should settle themand when they should mediate them and potentiallyget rid of them.[VIDEO PLAYBACK]- Me, personally, I do not like--and this my might be biased, but I don't really care for trucks

    • 01:25

      DAVE ZEHNER [continued]: on the highway.- Yeah.Great--[END PLAYBACK]

    • 01:29

      DAVE ZEHNER: So I don't really care for trucks.I mean, that's kind of just a general viewpoint that people have.So why don't people like trucks and truck drivers?

    • 01:35

      SPEAKER 2: Well, I mean, you know me, right?I was in that really bad accident.I was on the highway and a trucker ran me off the roadlike three times, spun me around.I went all the way across four lanes of trafficin the middle of rush hour.And before that, I didn't mind trucks.I mean, I didn't want to be around them.

    • 01:56

      SPEAKER 2 [continued]: But after that, I always blame the trucker now.Any time I see an accident, I blame the trucker.So I mean, it's bias from experience.It's experiential bias.

    • 02:05

      DAVE ZEHNER: Very-- and it's very scary experiences,so they're very salient to people.It's interesting.So one of the issues we're going to have to deal withis a lot of people in the trucking industry,they have certain opinions.And they've done lots of studies.And they have all these very positive views.People, when I ask in the abstract, outside of a courtcase, have very positive views.

    • 02:25

      DAVE ZEHNER [continued]: They think they're dependable, hard-working drivers.So it's in direct contrast to whatwe see in our cases, what we saw the jurors talking about there.Now, we have to explain that because of the factthat it's much different when you ask people in abstractabout truckers versus when you ask themin the context of a legal case.Clarity Partners Trial Consulting.

    • 02:46

      DAVE ZEHNER [continued]: We provide a full range of servicesfor determining how jurors are likely to weigh--make decisions in legal cases.We do a full line of different type of juror cognitionexercises, such as mock trial exercises,where lawyers who are actually involved in the casewould come in.And they will put on miniature versions of the case.So we'll have a lawyer represent the plaintiff,

    • 03:07

      DAVE ZEHNER [continued]: a lawyer represent the defendant,and they'll each put on presentations.Sometimes we'll use video clips of the different witnesses whowere involved.And then they'll get to argue out their closing arguments.Sometimes we also do use a more simplified versionof that, a focus group presentation,where we'll have written out the basic facts of each sideof the case ahead of time.And then someone, like myself, wouldgo in and read the presentations to a group of surrogate jurors.

    • 03:32

      DAVE ZEHNER [continued]: And then after both of these types of exercises,we would then have the surrogate jurors go to roomsand then deliberate just like a jury would do.And we observe the deliberations.And from those deliberations, we determinewhat's working in the case for us, what are our biggestproblems in the case, what the likely value of the caseis going to be, and how likely itis our client needs to settle the case, or how likely

    • 03:53

      DAVE ZEHNER [continued]: is it that they can take it to trial.In addition to our juror cognition exercises,we also do jury selection, which includes writing upvoir dire questions to ask potential jurorsand the actual selection of the jury.So I will sit in the courtroom with the lawyers.And we will listen to what they haveto say to the questions we ask them,and determine which jurors we would

    • 04:14

      DAVE ZEHNER [continued]: like to exclude from the panel.People have a basic misconceptionof how jurors or juries are picked.Everyone asks, well, how do you pick a jury?Well, I don't pick a jury.I get to decide who gets kicked off.That's the only thing I can do as a jury consultant.So I can't pick who is on the jury.But I can make sure people who are biased against my clientare off.

    • 04:34

      DAVE ZEHNER [continued]: And what I always tell lawyers at the end of the daybefore we start knocking off jurors,you have to-- this is your jury.I'm here to help you and assist you in this process.But you have to be comfortable with the jury.And if I tell you that this person really needs to go,but you completely disagree, you need to leave that person on.I'm giving you the best of my abilityfrom a social science viewpoint.However, you as a lawyer have a lot of other areas

    • 04:57

      DAVE ZEHNER [continued]: you can draw from.And you need to be comfortable with the jurythat you pick, the jury that you leave on.And I can't be the one to make the decision.That being said, I've never had a client really decide, OK, I'mreally going to go against your viewwhen I say someone has to go because it'sjust-- they know that we actually have some idea whatwe're doing.And they know that they're experts in the law.

    • 05:18

      DAVE ZEHNER [continued]: And we are at the experts in human decision-making.And they probably need to allow us--in our tiny area of the law-- kind of arebe in control of that area.

    • 05:29

      SPEAKER 2: In general, our researchfinds that people think truck drivers are good drivers.They're just afraid of trucks in general.I mean, they expect them-- they'reafraid that they're going to fall asleepor they're on their phone or they'red-- I think because people actually do that a lotwhen they're driving.

    • 05:45

      DAVE ZEHNER: They think that truck driversare good in general.But they also believe that specific truckers could performthese very dangerous acts.And so when they hear a story in a case told by a good plaintiffthat, hey, here's a truck driver who did something very wrong.That's very believable to them.Even though they believe most drivers are safe,

    • 06:06

      DAVE ZEHNER [continued]: they also believe there are some truckdrivers who are very dangerous.And that activates different schema.And they are schemas that are more salient to them.You may have a general positive view of truckers,or used to have a general positive view of truckers,but once you had that horrible experience, whenyou think of truckers, the first thingthat comes to your mind, the most salient thing thatcomes to mind is that really bad experience.

    • 06:26

      DAVE ZEHNER [continued]: Our jurors are the same.And they remember the negative thingsbecause they're more threatening to them,versus the stuff where if they aren't threat--if it isn't threatening, it isn't important.They may have some general positive views.But it doesn't affect their decision-making.Instead, the bad stuff affects their decision-making first.

    • 06:44

      SPEAKER 1: So they'll remember the one truck driver thatmight have ran him off the road, but not rememberthe thousands of trucks drivers that they drove next tothroughout their life.

    • 06:50

      DAVE ZEHNER: That's exactly it.Through what we do, we make sure that our clienthas a fair group of people.There are some people who just, for various preexistingattitudes, beliefs, and experiences they've had,they cannot be fair.They cannot make decisions based upon the facts of the case.They are always going to go back to somethingthat has happened in their past or some attitude they have.

    • 07:13

      DAVE ZEHNER [continued]: And that will override all the evidence.And through a proper use of jury selection,you eliminate those people on both sides so that neither sideis disadvantaged by having a person who cannot decide a caseon the facts.And if you don't properly ask the questionsto uncover those biases and uncover those experiences thatwould make someone not a fair juror to one side or the other,

    • 07:35

      DAVE ZEHNER [continued]: then you have a biased system.And the problems we have had in our juryselection in our juries are not from the applicationof the jury selection process.Its from not doing the proper way of jury selectionand allowing people who have biases,who cannot put those biases aside, to be on juries,and therefore make bad decisions.In some types of cases, it's a very small percentageof people who have an implicit bias that they

    • 07:56

      DAVE ZEHNER [continued]: can't get behind.One of the most interesting thingsis, for example, I've worked on several death penalty cases.And one of the-- and people are probablyvery aware of how many times someone who is innocentis found guilty and sentenced to death.In Illinois, where I am based, of the 14 people whowere sentenced to death before the death penalty was finallyabolished here, seven of them were later

    • 08:17

      DAVE ZEHNER [continued]: found to be found not guilty.And the reason that happened is because between 60% and 70%of all jurors in our research as we found out,if the government charged them, theyassumed that person was guilty.And even more unfairly, they thought that, well,even if they aren't guilty of this particular crime,they probably did something else.And therefore, they should go to jail anyway

    • 08:38

      DAVE ZEHNER [continued]: or be sentenced to death because these are bad people.And therefore, they need to get sentenced to death.That's the extreme end.In other types of cases, for example, medical malpracticecases, it's very hard for someonewho has had a very bad experience with a hospitalor a doctor-- and that's probably about 10% to 15%of the overall population-- to be a fair jurorto a hospital or a doctor.

    • 08:59

      DAVE ZEHNER [continued]: In other cases involving employment, lots of peoplehave had very negative employment history,problems with their job, problems with an employer.And they're probably not going be the fairest personto adjudicate a case involving an employer and an employee.So depending on the case, the numbers really vary.And what you need to do is ask the right questionsto identify the experiences that are going to make

    • 09:21

      DAVE ZEHNER [continued]: someone unfairly biased.And then a judge needs to determine whether or notthat person can be fair.And those two things working togetherguarantee that you get a fair jury.We have clients who want to know multiple things.They want to know, A, what is the impactof a third-party defendant, whether or notthey should leave the third-party defendantin or not.B, what happens if certain jury instructions get in or don't

    • 09:43

      DAVE ZEHNER [continued]: get in?And C, if they do bring in the third-party defendant,how does it matter if they attack us versus if they arerelatively neutral towards us?Given that they're indemnifying, then Ican't imagine they're going to be attacking us,and given the testimony we saw.So I think we're going to end up testing as though they are

    • 10:04

      DAVE ZEHNER [continued]: relatively neutral to us, and in fact,with witnesses giving relatively good testimony for us,and in fact, also saying that the plaintiff is the one whomade mistakes in this case.

    • 10:13

      SPEAKER 2: Well, they're locked in from their depositionanyway.

    • 10:14

      DAVE ZEHNER: They are.

    • 10:15

      SPEAKER 2: So I--

    • 10:15

      DAVE ZEHNER: They're very locked in.

    • 10:16

      SPEAKER 2: It's pretty unusual because usually we we'regoing to get the finger pointing, right?But in this case, there probably won'tbe any finger pointing because they testified very favorablyfor us in the deposition.So they're kind locked in.

    • 10:28

      DAVE ZEHNER: And that was my biggest concernthat that would happen.Now, we still could get, though, people saying, wait,you're still blaming someone else?And what our client needs in this case,they need to get 0% liability.

    • 10:38

      SPEAKER 2: Zero, yeah.

    • 10:39

      DAVE ZEHNER: They need to win the case.And so is it easier to get a not guilty?Or is it easier to get 0% when there's a third party?And I think we may find it easierto get 0% when there's no third party.And so that's what we'll be testing.And I don't think-- because I justgot an email from one of the lawyersthat I don't think they're going to doa second group in the morning.If they do a second group in the morning though--

    • 11:00

      DAVE ZEHNER [continued]: we potentially might do two groups in the morning.We have to have a group of 24.We break them into groups of 12, and thenhave-- when it comes to the third party presentation,we take 12 people out, have them hearone version of the third party presentation,then put 12 more people back in and havethem hear the other version of the third party presentation.And then they'd be separate.And then they'd deliberate separately.

    • 11:21

      DAVE ZEHNER [continued]: So then we'd be able to see.Although, I think, Laura, I think you said it really wellin the phone call.We already know if they support us that it's good.

    • 11:28

      SPEAKER 2: Right, well, I--

    • 11:29

      DAVE ZEHNER: If they attack us, that it's bad.

    • 11:30

      SPEAKER 2: Well, I mean, I always liketo have more people.So I didn't want to-- I don't want to upsell something.But I also-- you have 36 people.You have a better read on the thing.

    • 11:41

      DAVE ZEHNER: Part of what I do is not onlyunderstanding human decision-making,there's a little bit of game theory that goes into it.And a lot of times though in jury selection,you know the order of jurors.So you know who's going to replacethe people who are coming in.Sometimes you don't.But probably about 2/3 of the time,you do know, if I get rid of this person, this next-- thisis the person who is going take their spot.

    • 12:02

      DAVE ZEHNER [continued]: And sometimes, we will have a jurorwho we go, well, they're not bad, but they're not great.But the juror who will replace them is awesome.We love this juror.And we want to get them in because now the other side willthen have to use a strike on them.So there is a game theory component.And when you don't know who's going replace them,there's a saying in the field, you never use your last strike.

    • 12:26

      DAVE ZEHNER [continued]: And what a strike is is when you eliminatesomeone for any reason.You get a certain number of what arecalled peremptory challenges.And you get to use those for any reason that'snot discriminatory.And each side gets a certain number of those.And if you-- you don't want to use your last oneif you don't know who's going to take their space because theycould be much worse.Sometimes you know who's left in the universe of people

    • 12:46

      DAVE ZEHNER [continued]: who can come in, and you have to make an educated guess.For example, all right, there's 20 jurors left there.They're going to choose one more juror out of there.I know, I would say, of those 20 people who are left,six of them are Fs, five are Ds, four are Cs, three are Bs,two are As.Well, I don't like those odds.I'm going to leave in the C because I could pull D or an F

    • 13:08

      DAVE ZEHNER [continued]: from the bag.It's an understanding not only of human behavior,but also of how impactful these people are going to be.So sometimes you will leave on a juryyou know is biased against you because you alsoknow they are going to have troublecommunicating and influencing the other jurors.Whereas, you might knock off someone who,well, they could go either way.But if they're against us, they are

    • 13:29

      DAVE ZEHNER [continued]: going to have a huge amount of impactfor either their specialized knowledge, sometimessome people are just very good people person.Some people are connectors who youknow are going to connect the jury together.And you need to make sure if you leave on something like that,they cannot be someone who potentially could be badfor you.So you have to rank your jurors not only by jurors who are,you think, might be bad for your case, but also jurors who

    • 13:50

      DAVE ZEHNER [continued]: are going have a huge impact.And if there's any intersection of those two groups,you have to get rid of the impactful people first.All right.First up is Miami.And we should be in pretty good shape for that one.The real tricky thing about Miamiis that it's not just the Latinos or Hispanics,there's many subgradations within that.So you have to be cognizant-- I mean,Cubans are much different than Haitians

    • 14:12

      DAVE ZEHNER [continued]: and are much different than Dominicans and much differentthat Colombians.And so we want to make sure we have a good representationbecause Miami is a great mix of all these different groups.

    • 14:21

      SPEAKER 2: So instead of just recruiting for Hispanics,we've broken it down into Cuban and then-- well, I think,I think we were--

    • 14:29

      DAVE ZEHNER: South American.

    • 14:30

      SPEAKER 2: I think the way we--

    • 14:31

      DAVE ZEHNER: Caribbean.

    • 14:31

      SPEAKER 2: --put it-- let me pull it up here.Hold on a second.We said no more than two from each of the subgroups I think--

    • 14:36

      DAVE ZEHNER: Correct.

    • 14:37

      SPEAKER 2: Is-- that's how we did it.

    • 14:39

      DAVE ZEHNER: Correct.We tailor our research exercises to the specific caseby variations in our research design methodology.Now, we use the same basic methodology.And the basic methodology is we find a group of peopleto be surrogate jurors.We bring them in, and we present the information to themon a case.Depending on where the case is, what the case is about,

    • 15:01

      DAVE ZEHNER [continued]: what the format is going to be used in jury selectionand at trial, we have to vary the way the information ispresented to people.And it's very important to not try and simulate everythingthat happens at trial because that's notpossible to do in a one-day exercise.And even if you could, it probablywould be counterproductive because you'regiving too much information to the surrogate jurors.

    • 15:22

      DAVE ZEHNER [continued]: So what you have to do instead is figure out,what are the basic building blocks of the informationthat they're going to hear at trial?What order are they going to hear that information?And give that information to themin the similar order to that they'regoing to get it at trial so their brains process itin a similar way.One of the biggest problems you can dois give-- if you give people information out of order,it sometimes changes their decision-making process.

    • 15:43

      DAVE ZEHNER [continued]: So our research exercises have to be tailored to make surethat we are presenting the information they'regoing to get in the right order and in the right sequenceso that we can determine how that is goingto impact the overall decision they'regoing to make in the case.Finding the proper subjects to bewhat we call our surrogate jurorsis the most important part of our process.

    • 16:04

      DAVE ZEHNER [continued]: If we don't have the right people in our exercises,people who are representative of the type of peoplewho will actually be trying the case, everything we dois a complete waste of time that'sgoing to yield results that not only aren't goingto help our client, but often may cause themto make the wrong decisions.So what we do is we have a very long process of selectingthe surrogate jurors.

    • 16:25

      DAVE ZEHNER [continued]: We first look at the census tablesand determine what is the general makeup of the venire.And the venire is the people who aregoing to be called for jury service in an area.For example, in Chicago, the veniresometimes is Cook County.So we look at the census for Cook County.And we know that Cook County, for example,is about a third Caucasian, a third African-American,

    • 16:45

      DAVE ZEHNER [continued]: and a third Hispanic or Latino.We want to make sure that our jury panel matches up that.We also want to make sure it matches up--we have about 30% college degrees in Cook County.We want to make sure we have a similar number there.You want to make sure you have a similar number of peopleover 50, people under 30.You want to make sure you fill the different demographic slotsso when you get to the actual trial, you make sure

    • 17:07

      DAVE ZEHNER [continued]: that you have people who are like-- you had people whoare like the potential juror who were in your actual juryresearch exercise.So then we work with a market research firmthat has a database of hundreds of thousandsof people in the area.And we tell them, here are the demographic specs that we want.And they start recruiting people for us.And we go through, we look at the list of people, and say,

    • 17:27

      DAVE ZEHNER [continued]: yeah.Those 12 are great.But these three, they'd never make it onto a jury.That person is self-employed.Self-employed people always get off.That person is obviously defense-oriented,and therefore-- I mean, they're an accountant with an MBA.No plaintiff is ever going to leave them on.And so you eliminate the people who would never actually makeit through the process.And you make sure you have a group of people

    • 17:48

      DAVE ZEHNER [continued]: who are like the people you would be selectingfrom when it comes to the final part of jury selection.

    • 17:54

      SPEAKER 2: And we're going to do four to five white/Caucasian,four to five black/African-American,and seven to nine Cuban.And then we've got Latino/Hispanic otherthan Cuban.And then no more than two of each of the Latino subgroupsdown there.

    • 18:11

      SPEAKER 1: How do we determine the demographics?

    • 18:13

      DAVE ZEHNER: Well, this one, Miami'sa little trickier because Miami is a constantly-changing venue.So we had to do is we looked at the census informationto get our basic information about number of Caucasians,number of African-Americans, number of Latino/Hispanics.And then there's a specialized databaseswe could go into which would give us the subgrouping, howmany Haitians, Colombians, Puerto Ricans, Venezuelans,

    • 18:33

      DAVE ZEHNER [continued]: Mexicans, Jamaicans, other Caribbeans, other SouthAmericans, all those different subgroups.And I'm not really looking to get every single subgrouprepresented, because we can't do that in a group of 21.But I want to make sure we don't have,for example, five Venezuelans in our Latino groupbecause that would be unrepresentative.A lot of times, we have clients who arevery skeptical of what we do.

    • 18:54

      DAVE ZEHNER [continued]: And in predicting outcomes based on our knowledge of jurydecision-maker, we have to explain to themthat people do not process information in a vacuum.They process information by filtering itthrough the preexisting attitudesand experiences that they've already had.And so jurors, when they listen to information,if they don't have what we call a preexisting schema

    • 19:15

      DAVE ZEHNER [continued]: to connect information you give them to,the fact goes right through their heads,and they don't process it.So we are able to determine what isgoing to make people make decisions in casesby determining what evidence will actuallyconnect to preexisting schema that most people have.A lot of times, lawyers like to use very technical evidence

    • 19:36

      DAVE ZEHNER [continued]: and evidence that requires a high degree of knowledgein order to understand.And we're always very hesitant to use that type of evidencebecause if jurors can't understand it and connectto it, it just goes right through their head.They've done MRI scans of jurors and peoplewhen their processing information.And you can see when the MRI lights upwhen information connects with preexisting schema.

    • 19:58

      DAVE ZEHNER [continued]: And then you can see a blank pagewhen information goes right through.And then when you talk to the person afterwards,they've retained the information that was told to them whentheir brain lit up.And they don't remember the informationthat the brain did not light up.So the advanced-- not only-- our knowledgeof how people make decisions has reallybeen enhanced by the advances in medical technology

    • 20:18

      DAVE ZEHNER [continued]: that have allowed us to actually see our theories in action,and it's been very confirmatory of the process.The whole field of trial consultingis only about 40 years old.And what has happened is that it's changed the way lawyersand clients approach their cases because itused to be people would say, well, the juryis just a crapshoot.Who knows what a jury is going to do?

    • 20:40

      DAVE ZEHNER [continued]: Well, now we can actually get an idea of what a jury might do.We can't guarantee it.There's n-- we don't say that thisis 100% what's going to happen.But we are much more likely to know that answer to thatquestion if we do a jury research exercise and studythe things that might change the jury decision-making than if wedon't.And then now clients are saying, boy, I'm

    • 21:00

      DAVE ZEHNER [continued]: never going to trial again unless I do a jury researchexercise.I don't want to go in without that informationbecause not only does it allow me to make better decisions,I know my opponent has probably done the same thing.And if they have information that I don't, I'mgoing to be at a disadvantage when either I go to trialor when I go to settle this case.And one of the things we'll see, a very interesting divide

    • 21:22

      DAVE ZEHNER [continued]: is between older and younger Cubans.And you're seeing that in the presidential election, too.There's a big shift between peoplewho came from Cuba versus Cubans who were born here.And it's younger Cubans are much like other younger millennialsand other Latino millennials, much more socially liberaland politically liberal than their parents.

    • 21:43

      DAVE ZEHNER [continued]: And so they're also much more likely to give moneyin these kind of cases.So that's something we're going to want to keep an eye on.And unfortunately, the plaintiffsall know that they want to get rid of the older Cuban jurors.I mean, that's not a big surprise.So it's going to be hard to get the kind of jurorsthat we like on in this case.It's a very bad venue for our client in this case.

    • 22:00

      SPEAKER 1: What do you consider to be the main issuein the Miami case?

    • 22:04

      DAVE ZEHNER: Miami, we're really goingto have to figure out what people thinkabout the idea of an older person driving over a parkingstop onto a curb.And that's going to be really interesting because obviously,in Miami, there are a lot of older people,a lot of retirees.And so we'll get a pretty good ideaon what people think about these issues.And I don't think that the actual arguments

    • 22:26

      DAVE ZEHNER [continued]: from the attorneys are going to matter very much.People are going to have very strong preconceived issuesabout driving, about parking.And I don't think we're going to beable to do much to sway those.We present our finding to a clientin a lot of different ways.First, and most importantly, the clientsare there during the exercise.They see the jurors deliberating.They get instantaneous feedback from what the jurors

    • 22:48

      DAVE ZEHNER [continued]: are saying about the case.And to be honest, that's 90% of what they take away from it.A lot of clients, even though we writevery detailed reports explaining here'swhat happened at the exercise and here'swhy people were making decisions they made,I would say that our clients, in general, go to the exercise,they see it in person or they watchthe video of the different groups,and from that, they've learned a lot.

    • 23:09

      DAVE ZEHNER [continued]: And then the report kind of reinforces that.We do a written report.We do a lot of statistical analysis.We, as a group, brainstorm about, OK,what was driving the decision here?Was that driven by a couple of peopleor was that a consensus view?And we generally, in our reports, we write out,here are the consensus beliefs that were driving the jurydecision-making.And that's the main takeaway that our clients

    • 23:29

      DAVE ZEHNER [continued]: get from our reports.But as I said, they generally take awaywhat they actually saw.

    • 23:35

      SPEAKER 2: Well, the pictures aregoing to say what they're going to say.And I think the pictures are going to be pretty damning.So I think the jurors are going to just relytoo much on the pictures, and then we'regoing to have to defend that.So that's what it's going to come down to.

    • 23:49

      DAVE ZEHNER: Right.And they're not going to accept our argument.We're trying to push against too much of the actual evidence.Even if it's what actually happened,it doesn't matter anymore.

    • 23:57

      SPEAKER 2: Right.

    • 23:58

      SPEAKER 1: So it looks like the attorney willhave to wait and see the results to understandthat that argument might not work.

    • 24:04

      DAVE ZEHNER: Correct.We have to prove it to him through the jurorsthat that argument isn't going to work.And we could be wrong, too.I mean, it might turn out that he is right about thatbeing the best argument to make.I got into the career of jury consultedby a very roundabout way.I started out as a high school teacher.And I was teaching high school in San Diegofor about five years.And after three years, I already had tenure.

    • 24:25

      DAVE ZEHNER [continued]: So I was 24 in San Diego with a job that I was out at 2 o'clockin the afternoon.And I didn't see this as being a very productive lifepath for me.I love teaching.I love teachers.But I knew, personally, that I would stagnate if I did that.So I went back to graduate school.And I thought I was going to study political science,get my doctorate in political science,

    • 24:46

      DAVE ZEHNER [continued]: and work on political campaigns.I'd always been kind of a political junkie.And so I started studying political science.And that led me into how people vote and voter decision-making.And voter decision-making led me into cognitive cybernetics.And that was all about how decisions are made.And I was working on my doctorate,

    • 25:07

      DAVE ZEHNER [continued]: finishing up my thesis after I'd-- all but dissertation.I answered an ad looking for a social science researcher.And it ended up being in jury consulting.And I saw this was a great application of how people vote.It's just a different place for people to vote.And I really liked the idea of having a new subjectmatter to work on every two weeksinstead of being stuck on one campaign for two,

    • 25:27

      DAVE ZEHNER [continued]: maybe three, years.And I just fell in love with the ideaof seeing how people made decisionsand how we could vary the information we were presentingto them to get them to decide the case in a way that was morebeneficial for our clients.And we also found out that there are certain areas,no matter how well you message, thereare certain things, facts and evidence, you can't get over.

    • 25:47

      DAVE ZEHNER [continued]: And we identify the cases you can't do anything with and tellour clients, you need to settle those, find the bestway to present the cases they have to take to trial,and then be able to inform them, here'sthe best way to get your cases ready,and how to win when you are ready to take a case to trial.And that's been what I've really enjoyedis being able to help my clients makegood decisions about their litigationand getting to see the outcome.

    • 26:08

      DAVE ZEHNER [continued]: We've had over 120 cases go to trial.And of those 120 cases, we only had fourwhere the results were less than-- wereradically different than the outcome of our researchexercises.And we found that that's been incredibly--we've been obviously very fortunate, because that'salmost beyond what you could ever expect in social scienceresearch.But we've found our clients are very happy with the results.

    • 26:31

      DAVE ZEHNER [continued]: And we learn something new every day we work.I just wanted to run through our cases we've got going on.And then I got a couple issues on a couple of the casesthat I got here.So--

    • 26:42

      SPEAKER 3: Hopefully no major issues.

    • 26:43

      DAVE ZEHNER: No, no, hopefully nothing too major.But it's a question about what's the bestway to do one of our new cases.And it's a case involving a rape at an apartment complex.

    • 26:52

      SPEAKER 3: Right.

    • 26:52

      DAVE ZEHNER: Yes.So we are concerned that when we're recruit-- how dowe recruit our surrogate jurors in a waythat we don't get people who are goingto be too offended by the case?

    • 27:01

      SPEAKER 3: Then ethically just have to be honest, upfront,and say that we have a somewhat racy case of a sexual nature,and that we're going to have to get that on the table up front.But we need to do it in a way that we'regoing to make sure that we don't bias the jury pool.

    • 27:15

      DAVE ZEHNER: Yes.

    • 27:16

      SPEAKER 3: Or else that hurts our chances of havingreally relevant research.

    • 27:19

      DAVE ZEHNER: Yeah, that's a really good point.The other thing we can potentially dois just bring in some extra jurors.And then we can ask them at the very beginning,here's what this case is going to be about.Who here has a problem?This is just simply what a judge would do.And then those people would be excluded by the jury.So actually, it will give us a more accurate jury pool.The one piece of advice I would giveto anyone who is interested in doing,

    • 27:40

      DAVE ZEHNER [continued]: not only jury consulting, but anything involvingjury decision-making is get out of the classroomand do something in real life.The most valuable training and educationI ever had had nothing to do with my in-classroom training,it had to do with being a bouncer at a bar in Chicago.I dealt with people I had never dealt with in my entire life.I'd always been a teacher or someone

    • 28:01

      DAVE ZEHNER [continued]: who had been kind of involved with more thinking about thingsand being processing things.And actually having to deal with the nitty-gritty of howyou actually handle people who are in a situation where theywant to do things that you don't want them to dois incredibly valuable.My wife, who also is a jury consultant, she was a waitress,

    • 28:22

      DAVE ZEHNER [continued]: and then she was a pharmacist.And those, she got to bring-- she nowbrings those outside experiences into her understanding of howpeople make decisions.One of the biggest traps you can fall intois over-analyzation, thinking that, oh, I'm a scientist.I know what people are going to think.And I'm not going let the messiness of the real world

    • 28:44

      DAVE ZEHNER [continued]: get involved in that.And people think that, oh, because I think something,it must be right.They don't realize that there are outside views.And the second piece of advice I would always giveis always be trying to think about--and this is something that's useful just in life in generalis-- how is the other person thinking about this?I don't agree with the decision they're making.Why don't I agree with it?Why do I think my decision is better than theirs?

    • 29:06

      DAVE ZEHNER [continued]: Why did they make that decision?Is that decision rational and reasonable to them?Because obviously, it must be, because, otherwise,why would they make that decision?No one intentionally makes bad decisions.So think about being empathetic and understandinghow other people think.And most importantly, always be thinkingthat there's a chance you might just be wrong.And if you're always questioning your assumptions,

    • 29:26

      DAVE ZEHNER [continued]: you can do that.And it's something that's very hard to learn justin the classroom, something you have to really learnin the real world.What you've seen on TV about jury consultantsis completely untrue.We don't have a cool van where we follow people around.We don't have cameras that can search youout wherever you live.We don't hunt you down on Facebook.

    • 29:47

      DAVE ZEHNER [continued]: We, instead, ask you questions in a courtroom setting.And we listen to your answers.And it's just interpreting what people say,and sometimes not only what they say, but what they don't say.And we use that as a way to try and determine whether or notyou can be a fair juror in our case.It is not a super secret society that gets together and triesto delve in your personal life.

    • 30:09

      DAVE ZEHNER [continued]: All we want to do is make sure youdon't have certain beliefs and attitudes and experiences thatmean that you can't be fair to our clients.[MUSIC PLAYING]

Social Science Research & the Courts

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Dave Zehner discusses social science research in relation to jury selection and trial outcomes. He describes a mock jury selection process in which researchers use their understanding of social science to pick jurors that will be of the most benefit to the case. The mock trials give prosecutors an understanding of how their arguments will be received in court.

SAGE Video In Practice
Social Science Research & the Courts

Dave Zehner discusses social science research in relation to jury selection and trial outcomes. He describes a mock jury selection process in which researchers use their understanding of social science to pick jurors that will be of the most benefit to the case. The mock trials give prosecutors an understanding of how their arguments will be received in court.

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