Overcoming jury bias: trial advocates must understand it and cope with it: there are several methods that can be used to deal with the long-held beliefs and dangerous biases held by jurors.

• Author: Pruitt, Lyn P.

HOW CAN defense counsel success fully cope with jurors' long-held beliefs and biases that may influence them? Here are several suggested methods.

UNDERSTANDING BIAS

1. Ride the Wild Pony

   Any experienced equestrian will verify that it is far easier to ride a wild pony in the direction that it is going than to try to alter its course. The same principle applies to a jury panel or an individual juror. There is simply not enough time or opportunity during the course of voir dire examination to identify or change the long-held beliefs or biases of jurors.

   One approach is to acknowledge rather than oppose their beliefs. Ride the pony in the direction it is going. For example, jurors now generally believe that most corporations are more interested in profits than they are in safety. Rather than opposing this view totally and attempting to convince a roomful of strangers that their beliefs are wrong, simply agree with them in general and turn the belief to your advantage.

   One way to accomplish this during voir dire is to ask those who are upset about this general concept to raise their hands. At the same time, the attorney should raise his or her hand and agree, suggesting that his or her hand is held higher than anyone in the courtroom. Defense counsel then should establish that this anti-corporate feeling may be the reason the defendant has been sued and acknowledge an understanding why jurors would be upset. Then, defense counsel needs to explain why that does not apply in this case.

   This technique puts both defense counsel and the client on the same side of this issue. Since seeking similarities with jurors is one of the most productive endeavors an attorney can undertake, handling this problem area in this fashion has many potential advantages.

2. Break the Stallion

   This technique is used by many fine trial advocates and represents an attempt to change the direction of the jury panel's thinking by providing additional facts on an issue. An attorney must attempt to provide a fresh perspective to biased jurors during voir dire, realizing that this will not always result in changed attitudes. But short of being able to get biased jurors off for cause or of using up valuable preemptory challenges, this method offers one approach to balance the scales during voir dire with negatively opinionated jurors.

   This technique is called "Breaking the Wild Stallion" because it is dangerous if not done properly. One objection to this method is that it places the attorney in a position of claiming superior knowledge about certain facts over that of the jury panel. This can be interpreted as talking down to the jury if not carefully done.

   There is also an inherent risk in showing a juror that he or she is wrong in front of a group of strangers, particularly when the other panel members agree with the juror. Caution and careful execution are a must if this technique is used.

3. The Spielberg Method

   One of the most powerful and effective techniques for overcoming bias and long-held beliefs is to use the same technique Stephen Spielberg uses in his brilliant motion pictures: suspension of belief.

   In Jurassic Park, Spielberg was able to get the audience to suspend their belief that there are no dinosaurs for two hours, with the result that the movie was very enjoyable. As soon as the audience left the theater, they reverted to their prior belief that there are no dinosaurs. The important point is that Spielberg did not try to change the public's belief that there are no dinosaurs but only asked them to suspend the belief for two hours.

   The method is a four-step process:

   * Acknowledge the pre-existing belief and justify it.

   * Link yourself to the pre-existing belief. Link your client to the pre-existing belief.

   * Use this link to the belief to build a temporary belief system that will last through the trial.

   Information contradictory to the belief based on stereotype will be ignored if you attempt to attack the belief directly and disprove it. Often these are long-held and deeply ingrained beliefs, and counsel must be cautious not to make jurors feel that their beliefs are under attack. Their response will be to defend them and cling to them more tenaciously. Instead of directly presenting contradictory information, one needs to identify the stereotypes. Say it is all right to have this belief; that most people share the belief; that your client previously held the same belief; if appropriate, that you previously held the same belief; but that you and your client have altered your belief based on several factors that you would like to discuss with the jury.

   You now have predicated the building of a new belief system. You are not asking the jury to reject their belief but rather to consider the same alteration of their belief that you and your client have experienced, based on the facts of the case.

   One of the most important psychological factors that makes the civil justice system work is that jurors seek to render a verdict they perceive as fair and equitable. Jurors want to do a good job and sincerely want to bring in a verdict on which they can look back on with pride. It is essential for the advocate to stress to the jurors the importance of their role in the civil jury system, the permanence of their verdict, and the reasons why equity and justice require the verdict your client seeks.

4. Conscious/Unconscious Mind Appeal

   Understanding the conscious (logical) versus the unconscious (emotional) mind is important. This is another powerful check needed to overcome jury bias--that is, communicate directly with the unconscious mind of the juror, which can effectively bypass the processing of information by the conscious mind where bias and long-held beliefs often come into effect...