Commensurability: understanding jury research and juror information processing.

• Author: Sobus, Mark S.

Understanding jurors' pathway to verdict is the first step to discovering how to be most effective in persuading a jury

PERHAPS it is a truism by now, but understanding people and how they think and interact in their social environment is not rocket science. It is much more difficult, because the thing being measured need not follow any immutable laws. In fact, measuring people and understanding how and why they reach the conclusions they do is made all the more difficult because they frequently cannot tell you how and why they got there themselves. And it's even more perplexing when applied to juries. Then the task is no longer to understand one person, but several people, as well as the interactions among them.

While understanding juries will never be easy, trained litigation strategists employ several techniques to increase the confidence associated with drawing conclusions about the underlying process for the person and the group. One important technique in this process is to focus on juror and issue commensurability.

WHAT IS COMMENSURABILITY?

For the purposes of this article, commensurability refers to an identification of issues on which jurors are able to have a meaningful meeting of the minds. The process also involves identifying those issues on which jurors either find no desire or ability to engage. Commensurability is very different from the ability of jurors to agree or disagree on issues. It is best understood as an analysis of whether a conversation can take place on a topic and what that conversation is when it does.

In undertaking the task of measuring and understanding jurors and the jury, it should become apparent that the group process is much different from the sum of the parts. An observer may be able to take any one juror at "face value," but the same is almost never true for the group. There also is a qualitative difference between what jurors say during a deliberation and what can and should be learned from what they say. This is so because once in a group, jurors are not only trying to state their beliefs, opinions and evidence evaluations, they also are trying to advance an agenda in a way that they perceive to be most effective. Jurors will have their own agendas and techniques, which makes the process all the murkier.

While the information processing of the person and the group will always retain its complexity, some of it never completely knowable, by focussing on the issue of commensurability, one can simplify the process into a comprehensible form and use the output to be much more persuasive at trial.

It is all too easy to believe that when one simply contemplates a case in preparation for litigation, that person is engaging in an analysis of commensurability. But our own biases and beliefs affect us just as they affect jurors. So there is no reason to expect that contemplation of your facts will lead you to an understanding of the commensurability issues in your case. For example, in a recent toxic tort case there were a few jurors who became extremely upset with what they believed was unacceptable company conduct. That conduct became their sole focus, and they were unable to entertain any other issues. Most other jurors focussed on such factors as the scientific evidence, whether any harm to the plaintiff could have been mitigated by the plaintiff, the role of the union and co-workers, or whether other companies and contractors may have been wholly or at least partly responsible.

The majority, however, was unable to engage the "angry" minority; it was completely unpersuasive. Of course, there was disagreement among the jurors, but more important for the trial team, it became evident that the defense approach needed some refinement to address the concerns of the minority, while not sacrificing the existing strengths. Simply stated, the jurors needed a pathway through which they could pass in order to provide a meaningful opportunity for discussion and persuasion. In this particular case, the defense needed to bolster its discussion of company conduct so that the defense-leaning jurors could more...