January 23, 2023 - Jury selection or voir dire is the critical first step in preventing shock verdicts and the inevitable terrible headlines. Voir dire, a French term meaning "to speak the truth," is the process through which potential jurors from the venire or pool are questioned to determine their suitability for jury service. In this era of social inflation and polarization, we consider it the single most important phase of any trial, as these jurors will determine the client's fate and control the shock value of any verdict.
Priming the pump by questioning the panel
What is priming? This technique is used by counsel during voir dire to help advance their client's cause in unconscious ways.
Psychology Today magazine, in an article titled "The Adaptive Significance of Priming" (Jan. 22, 2017), defines priming as a "non-conscious form of human memory concerned with perceptual identification of words and objects. It refers to activating particular representations or associations in memory just before carrying out an action or task. For example, a person who sees the word yellow will be slightly faster to recognize the word banana in a word recognition exercise. This happens because yellow and banana are closely associated in memory."
In voir dire, a common strategy of plaintiffs' attorneys is at the outset to begin exposing jurors to concepts such as danger, safety and risk to appeal to the jurors' emotions. This is known as reptile theory, a decades-old proven tactic to activate jurors' survival instincts, prompting them to make decisions based on fear rather than logic. These concepts are phrased in a leading manner that makes any response deviating from the plaintiffs' attorney's preferred response appear outrageous and reckless; they are asked in a context that makes anything less than 100 percent assurance unacceptable.
These themes are repeated throughout voir dire questioning so jurors will be more likely to focus their attention on these ideas during opening statements and trial. The goal here is to ensure jurors will be less likely to process new information from the defense that often contradicts plaintiff's reptile theories.
This strategy aims to convince jurors that the defendant violated the plaintiff's safety, putting the entire community at risk, and urges them to deter the irresponsible behavior by punishing the defendant through a large shock verdict.
Fueling this sentiment is the sad reality that as a nation we have a lot of angry people. We've seen it in the politics and deep partisan divisions, in the social unrest, in the debate between the vaxxers and. anti-vaxxers, and what COVID-19 has done to the lives and livelihoods of many.
Now all they need is the fertile soil for those reptilian arguments to take hold – and that soil is the jury. The defense must take aim against their opponents' reptile maneuvering at the jury selection stage.
The defense must call out the reptile manipulation as early as possible. Voir dire offers an opportunity to begin suggesting overall themes of the case that will be crucial later on in the trial. Not taking the time to strip and re-prime with defense terms, language and definitions can give the plaintiffs' attorney a sizeable advantage in opening statements.
How priming can be employed as a defense tactic
Fortunately, priming also can work for the defense at voir dire. This is an opportunity for the defense to be proactive, rather than reactive, in presenting its case. Instead of just asking questions to determine juror qualifications or trying to persuade jurors to focus on the law or science, defense attorneys can prime jurors to their own chosen concepts.
Defense counsel can defuse their opponent's priming efforts by indoctrinating jurors during voir dire with their own cognitive "plan" that can spoil a plaintiffs' counsel's priming efforts. Here are two questions we've found to be particularly effective:
"We've heard a lot about safety in the courtroom this morning. And certainly I know we all can agree that safety is an important consideration. Who feels safety should be the only consideration when corporations make decisions?"
"Listening to plaintiffs' counsel this morning, I started to wonder if she wants this case to be about her client or if she wants it to be about accidents that have not actually happened. And it occurred to me that she is doing that to try to get you worked up and thinking about things that could possibly happen but most likely will not. So I need to ask each of you if you can commit to evaluating this case based solely on that — this case, and what happened to [plaintiff] and why it happened. Can everyone do that?"
Bill Kanasky, national expert, author and speaker in the areas of witness preparation and jury psychology, offers another example in "Debunking and Redefining the Plaintiff Reptile Theory" (2014): A plaintiff's attorney uses the question: "Who here feels that physicians should always put safety as their top priority?" to prime jurors to the concept of "safety." The defense can attempt to re-prime jurors by instead asking, "Who here feels that a physician's real priority needs to be treating every patient as a unique individual?"
In this case, the defense can strip away the plaintiff's attorney's "safety" priming, and instead prime jurors to focus on the concept of treating a unique patient, rather than strict adherence to general safety rules. This proactive approach strips away the plaintiff's attorney's priming efforts.
Priming for the 'Good Company'
Today more than ever, it's critically important to humanize corporate defendants during jury selection and prime the jurors to view the company as a group of people much like them instead of a corporate giant without a heart. Tell the origin story of the company and provide examples of its important role in the community. Remind potential jurors that the company does a great deal of good by creating jobs, hiring employees, supporting charitable causes, and working to improve sustainability and lessen environmental impact.
When discussing general safety rules, rephrase them in favor of the defendants: "You would agree that when a company has safety rules, they are doing something good?" Remind the jury pool that the company comprises members of the community who are flesh-and-blood people with concerns just like anyone else and who must balance and weigh various priorities like everyone else as well.
How to choose priming concepts and messages
Many resources are available to assist defense counsel in selecting their themes and messages for a jury. Consider engaging focus groups and jury consultants to assist in picking the themes and questions to prime the panel and in choosing the jurors.
Thorough preparation is always critical in deciding which case factors to focus on and which concepts to "prime" during voir dire. As discussed above, this is a critically important opportunity to influence the jury to be skeptical of plaintiff's reptile theories and more inclined to accept the concepts and terms on which the defense is building its case. Defense attorneys' strategy during voir dire will impact everything the jury sees, hears and thinks.
In this post-pandemic age rife with social inflation, the best defense against a shock verdict is to pick a good jury predisposed to defense-friendly themes and to prime them accordingly to view the facts and evidence in a manner consistent with reason and common sense, rather than pleas for sympathy and passion. However, the jury also must be empowered to arrive at an outcome that is just and allows them to sleep at night.
Originally published by Westlaw Today and Reuters Legal News.
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