Chapter 21 The Jury’s Perspective in Products Liability Litigation the Role of Communication-theory

• Jurisdiction: New York

CHAPTER TWENTY-ONE THE JURY’S PERSPECTIVE IN PRODUCTS LIABILITY LITIGATION: THE ROLE OF COMMUNICATION THEORY Gerald M. Goldhaber, Ph.D.

I. INTRODUCTION

Communication is a process by which people create and exchange messages for the purpose of achieving understanding and/or influence ³⁵¹⁴ Viewing communication as a process is to

• view events and relationships as dynamic, ongoing, ever-changing, continuous. When we label something as a process, we also mean that it does not have a beginning, an end, a fixed sequence of events. It is not static, at rest. It is moving. The ingredients within a process interact; each affects all of the others.³⁵¹⁵

Communication researchers and theorists define communication as a transactional process. As used here, the prefix trans- denotes “mutual” and “reciprocal.” Trans- is used rather than inter- to emphasize that communication is a reciprocal process in which both parties, sender and receiver, mutually affect each other as they send and receive messages. This transactional process has been described as follows: “All persons are engaged in sending (encoding) and receiving (decoding) messages simultaneously. Each person is constantly sharing in the encoding and decoding processes, and each person is affecting the other.” ³⁵¹⁶

Communication has been described as a receiver-oriented process ³⁵¹⁷ Advertisers target consumers as receivers with messages about their products and services. Politicians target voters with messages intended to influence election outcomes. Corporations target employees with messages both about the individual employee’s job responsibilities and the organization’s overall objectives and strategic plan. Parents target their children as receivers with messages about the proper behavior in a variety of settings

In a legal setting, particularly with regard to products liability litigation, the attorneys and witnesses must target their messages to both the judge and the jury as receivers in order to gain their understanding and, ideally, influence the outcome of the trial. Thus, attorneys, no matter how artfully and judiciously trained they are in the traditions and expertise of the legal profession, find themselves dependent upon their skills as communicators and their knowledge about the communication process

Success in the courtroom has become synonymous with success in communication—a fact not unnoticed by a relatively new cottage industry called “jury consultants.” Companies with high-tech names such as DecisionQuest, Litigation Sciences, Trial Technologies and so on offer their clients such services as community surveys, mock trials, witness preparation, focus groups, jury simulations, in-courtroom observation, jury selection and issue analysis. Jury consultants, offering the latest in social science and communication research techniques to help the lawyer identify the audience and shape potentially successful messages for that audience, have been used in many highly publicized trials: William Kennedy Smith, Rodney King, the Menendez brothers, the Branch Davidians and, of course, in the “trial of the century”—O.J. Simpson. While they do not seek such publicity, many corporate defendants involved in products liability trials have availed themselves of similar services.

In essence, the jury consultant is hired to tell the attorney how to communicate more effectively with the jury. The consultant’s job is to

• develop a rapport with the jury, take notes and observe the jury all at the same time. The main reason is that when lawyers go to law school, they have a “lawbotomy.” When they come out, they talk differently, dress differently and act differently. You therefore don’t want to use another lawyer as your eyes and ears, because he or she had the same lawbotomy. You need someone with a clean, fresh and open-minded approach.³⁵¹⁸

If the case is very complicated, the jury consultant can conduct a series of focus group discussions to pretest language intended to improve the jury’s understanding of potentially technical issues. If there is a question about how a potential witness will be perceived by the jury, the consultant may ask that witness to testify at a mock trial held prior to the actual court date, in an effort to uncover the strengths and weaknesses of this witness. If the attorney is concerned about which themes and issues to stress in the opening statement and throughout the trial, the consultant may commission a community survey to determine which issues are best understood by and/or are most persuasive to selected target demographic groups that might correspond with potential juror demographics. This same survey can also help the lawyer select the panel that will be most receptive to the themes that the lawyer will stress during the trial.

Since many products liability trials often last several weeks or more, the attorney must begin the trial with a clear understanding of the type of juror who will be most sympathetic to the themes and issues he or she will emphasize in the case. This concept was clearly understood by Leslie Abramson, attorney for Lyle and Erik Menendez. Prior to the scheduling of the second Menendez brothers trial, she commissioned a poll of 800 random people “to probe the hearts and minds of prospective jurors.”

Given that courtrooms have become laboratories for human communication, an understanding of how the communication process operates is essential, including the variables that affect it and the available research tools and methodologies both to evaluate and improve its effectiveness. Therefore, this chapter also discusses key findings from communication research that have implications for products liability litigation. Finally, this chapter describes the qualifications and expertise required of jury consultants and identifies sources for locating such experts.

II. THE JURY FROM A COMMUNICATION PERSPECTIVE

A. The Communication Model

Although the communication process is dynamic and ever-changing, it is best illustrated with the use of a static model that describes its components and function. One of the earliest, and perhaps the simplest, ways to describe the communication process was suggested by Laswell, ³⁵¹⁹ who posed these questions: Who? Says what? On which channel? To whom? With what effect? Building on these questions, Berlo ³⁵²⁰ summarized his model with the acronym “SMCR”—communication source, message, channel and receiver. Berlo’s visual representation of the communication process has been relied upon by most communication scholars for several decades.

B. Defining and Using the Communication Model—SMCR

1. The Communication Source

The source is the originator of the message—the individual or group that creates the message with the purpose of transmitting it to a receiver. The source must determine the meaning it intends to transmit, encode the meaning into a message and transmit the message. ³⁵²¹

In a courtroom, several sources—attorneys, the judge, witnesses and even the jurors—are continuously transmitting both verbal and nonverbal messages (some more effectively than others). A list of ideal source characteristics, which would lead to the greatest acceptance of a message by a receiver, would include the following:

1. Possessing extensive knowledge (special expertise) about the message subject matter.

2. Exhibiting good intentions toward the message receiver.

3. Putting the interests of others above personal interests.

4. Being perceived by the receiver as somewhat similar to the receiver in terms of personal values and beliefs.

5. Presenting information with a passionate belief in its authenticity and appearing dynamic and genuinely interested in the information’s significance.

6. Being perceived by the receiver as sociable and attractive.

7. Being trusted and respected in the eyes of the message receiver.³⁵²²

In short, the most effective communication sources are those that are perceived as credible, attractive and similar to the receivers.

2. The Message

The message is any verbal or nonverbal stimulus or symbol that can serve to evoke meaning for a receiver. ³⁵²³ A symbol is something that stands for something else—a word, for example, is a symbol when it refers to an object. To communicate, a person must be able to evolve a mental picture of something (create a concept), give it a name and develop a feeling about it. Communication is effective when the concept, the name and the feeling are similar to those of the other person. In other words, effective communication means that people are referring to the same things when they talk; they share understanding. ³⁵²⁴

A message is one or more symbols that a receiver perceives and to which he or she attaches meaning. We may be simultaneously sending and receiving the same symbols. The symbols may be verbal or nonverbal. The creation of meaning is what changes the symbols into messages. Thus, messages are composed of meaningful symbols about people, objects and events, and are generated by the interaction of people. Both verbal and nonverbal messages are continuously being created and exchanged in the courtroom among the attorneys, witnesses and jurors as well as with the judge (e.g., opening and closing statements; presentation of themes, strategy and supporting evidence; insertion of arguments and objections; and myriad vocal, facial and physical nonverbal cues).

Communication research findings, discussed later in more detail, provide insight into some of the factors that enhance a receiver’s perception of the authenticity of a message. These factors are summarized below: ³⁵²⁵

1. Presenting familiar information, preferably before but always in conjunction with the presentation of new or unfamiliar information.

2. Using documentation and evidence that is both novel and well delivered, especially if the source has at least moderate...