Looking backward to move forward with your defense: using history to overcome jurors' misunderstandings about science.

• Author: Parker, Bruce R.

SUCCESSFULLY defending product liability lawsuits involving pharmaceuticals or medical devices presents a host of challenges. Viewing a handful of ambiguous, cherry-picked documents with "perfect" hindsight, jurors may feel tempted to conclude that a defendant knew about the possible harms attributed to the product, overlooked those potential harms in the name of profit, or even intended that product users purportedly suffer those harms. Opposing counsel lend their voices to this cause, aided by professional experts who parrot the party line. Time itself poses potential hurdles, as the consolidation that has characterized these industries could make key employees virtually unavailable, make document retrieval tricky, and amplify the possibility that jurors will evaluate a defendant's actions with the benefit of a rearview mirror. Even finding key employees does not ensure success: while brilliant at executing their jobs, they may struggle to communicate with their friends, family members, and even those paid to listen to them. Of course, the task becomes even more daunting, as most jurors receive only a fraction of their wages, the commitment can last for weeks or even months, and opposing counsel offer inflammation rather than information.

The simplicity that plaintiffs' experts often trumpet can be the steepest challenge faced by the defense. On the surface, the rudimentary theories extolled by plaintiffs' experts could not sound more logical, clear, or persuasive. They nonetheless may lack scientific merit. All too often, however, simplistic, inaccurate reasoning resonates with juries because it just "sounds right." Such basic theories also play on jurors' misunderstandings about science and medicine. Proving that an opposing expert is wrong thus can be tantamount to telling jurors that they, too, are wrong. Yet, with very limited exceptions, a defendant must address those misunderstandings lest the plaintiff taint the manner in which the jury views the defense, its witnesses, and its evidence.

History--as shared through carefully selected and crafted stories--provides one way through which defense counsel and their experts can improve their odds of convincing jurors to pierce such simplistic reasoning. Stories about how things "used to be" and the ways in which scientists discovered the errors of their own may particularly help debunk the ways in which jurors may be tempted to view scientific evidence. Indeed, for most jurors, past experiences provide a readily accessible basis for present decision-making. Or, as the Spanish philosopher George Santayana observed: "Progress, far from consisting in change, depends on retentiveness. Those who cannot remember the past are condemned to repeat it." (1) A rock-solid nugget of history that any adult can understand and that many adults may remember learning can breathe life into a critical presentation that otherwise could test the bounds of the jury's attention, comprehension, and patience.

Section I of this paper discusses the importance of recognizing and openly addressing jurors' misunderstandings about science and medicine. Section II examines why historical examples of fallacious reasoning provide a promising tool for identifying the errors undermining opinions offered by plaintiffs' experts, educating jurors about the proper means of evaluating scientific and medical evidence, and humanizing defense witnesses. Section III discusses historical examples of fallacious reasoning that defense attorneys can couple with stories to reveal the weaknesses in plaintiffs' scientific or medical evidence. Although historical examples cannot remedy every witness's flaws, clarify every document's ambiguity, and patch every circumspect argument, they provide a unique opportunity to further case themes, build trust with jurors, and deliver memorable evidence that makes its way into jury deliberations.

1. Why Defense Counsel Must Address Jurors' Misunderstandings

   Jurors do not leave the biases created through life's experiences at the courtroom door. In this context, the notion of juror biases does not refer to overt prejudices against plaintiffs or, conversely, corporations. (2) Rather, the terms "bias" and "biases" refer to the filters through which jurors receive and process information.

   Cognitive psychologists believe that decision-making is a two-step process involving: (1) an interaction between a rational system that is deliberative and analytical; and (2) an experiential system that encodes how we feel about the information we receive and process. It is the second step that leads to cognitive distortions and mistakes. To encode, people use "effects" to mold or structure decision-making. These "effects" are thought to trigger cognitive "biases" used by people to perceive and utilize information. It is believed that these effects and biases are powerful enough to influence the decision-making process, often without an individual's awareness. (3) Such biases thus provide the lens through which jurors view the world, those around them, and the evidence comprising a defendant's case. (4) In certain trials, they also provide an almost undeniable issue with which defense counsel must deal or potentially face a substantial verdict. In all cases, trial attorneys must know and play to their audiences. (5)

   Jurors' biases can affect the success of a science-based defense. Life experiences shape what information jurors find significant, how they interpret that information, and what they do with that information. "People choose information that comports with their views of prior events and that makes them appear natural, even inevitable." (6) For example, family members, learning environments, and/or education teach some potential jurors to be particularly skeptical. Those jurors will process testimony and documentary evidence in a fundamentally different manner than others whose life experiences have conditioned them to accept information presented to them without question. Where--as is most often the best case scenario for the defense--a jury includes both those who do and those who do not think particularly critically, (7) counsel must adjust the presentation of the defense according to the jurors' biases. The sometimes misguided aura of infallibility associated with pseudo-scientific evidence (8) and the consensus required by the jury deliberation process (9) accentuate the need to account for these biases and the difficulty inherent in this task.

   Although voir dire provides an opportunity to identify potential biases, it may not expose all biases that may affect how potential jurors will process evidence. Jurors may believe that they do not have biases and can honestly say to themselves and counsel that they have no intent to deceive anyone.

   Courts and attorneys also have less than an adequate opportunity to expose biases. (10) Very rarely should attorneys ask venirepersons whether, during childhood, their parents, friends, or teachers encouraged them to think critically and even more rarely would such inquiries prove fruitful. Few people would volunteer a belief that they blindly accept all proffered information. (11) Even less obvious inquiries may yield inaccurate results. While, for example, counsel may sometimes view education as a surrogate for critical thinking skills, it is not at all uncommon to encounter highly educated persons (maybe even attorneys) who do not critically evaluate evidence and high school graduates who would be very skeptical about the types of "data" on which plaintiffs' experts often rely. (12)

   Further complicating the search for potential jurors' biases and the empanelling of the "perfect" jury with the "perfect" biases for a defendant's case is opposing counsel. As ferociously as defense counsel may try to empanel critical thinkers or vice versa, plaintiffs' counsel may be equally ferocious in striking those same venirepersons. Left behind are jurors who neither side felt strongly enough about to strike, who elicited no legitimate basis to strike, and who had the (mis)fortune of having a sufficiently low juror number to be empanelled.

   Unless the venire process miraculously yields a collection of jurors universally capable of critically examining scientific evidence, at least some (if not all) of the jurors will have misperceptions and misunderstandings about science and medicine. These are not just loosely held default settings that jurors activate and deactivate: for such individuals, misunderstandings about science and medicine reflect their reality. Defense counsel may have to overcome these initial instincts in order to convince jurors to accept evidence and arguments demonstrating that the plaintiffs' experts have misused scientific data or have no scientifically derived data at all.

   A lecture by a defense expert holds little chance of correcting jurors' understanding. As noted by two jury consultants:

   A common misconception among attorneys is that the best way to combat junk science theories is to educate juries about the merits of the real science theory (i.e., "if I can just get them to understand the epidemiology"). This "educate the jury" approach has some major obstacles. First, providing a successful education requires that there actually be a straightforward way to describe the real science. It also requires "students" who are motivated to learn, find you and your sources credible, and are capable of understanding and using the information you provide. These requirements are difficult to satisfy. (13) This is a very delicate line to walk, however, as

   the real problems with jury decision-making in complex cases present themselves not because jurors are asked to accept or reject evidence, but because they are required to apply it. Jurors do not disregard evidence because they do not understand it or because they harbor some aversion to science. Rather, when faced with the need to make a decision, and lacking the proper...