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Articles Table of Contents
The Use of Singerian Litigation Psychology to
Persuade Jurors During Eminent Domain Cases
By Amy Singer, Ph.D.
Property condemnation cases - far more than nearly any other type of litigation dispute - can evoke truly scorching visceral responses among jurors. Whether such outsize emotional reactions are directed against the government or the property owner depends upon the perspective (read: bias) of the individual jurors. Like iron filings snapping to magnets, jurors often quickly line up emotionally on one side or the other of the typical property condemnation valuation dispute. This is hardly surprising: issues in play in eminent domain cases can represent stunning and stark contrasts:
Property owner - government seizure of private property strikes at one of Americans' most sacred and inviolable rights - i.e., people should not be arbitrarily deprived of life, liberty, and/or property. Such elementary protection for a free citizenry represents a venerable tradition of law dating back to the Magna Carta. In our society even the most humble property owner is the proud king/queen of his/her castle. The sudden taking of such property by the government can represent an ominous and chilling departure from American norms of autonomy and freedom.
Condemning authority - The government, be it federal, state, regional, or local,[1] symbolizes the collective wisdom, authority, and power of the people. Its actions - including the taking of private property in extraordinary circumstances - promote the public good. Property owners who attempt through expensive litigation to wrench excessive compensation from governmental agencies in such cases are extorting the public will for their own greedy and selfish purposes.
Eminent domain cases require extensive jury profiling
Due to such weighty emotional issues, comprehensive jury profiling often proves critical to attain a successful verdict in property condemnation disputes. Indeed, I have found this to be more true for eminent domain cases than for almost any other type of litigation dispute.[2]
Jury profiling enables the attorney to determine what type of jurors to seat for a particular trial. This litigation intelligence is often developed through jury focus groups and jury simulations where alternate juror psychological types can be evaluated to see how they react to the condemnation case's various facts, issues, and arguments. Litigation intelligence surveys (i.e., pre-trial polling of the venue where the trial will be held) also can be used to help determine the most disastrous (and the most ideal) juror types for a particular case. Such surveys are conducted among a large number of people to get the most reliable readings.
After litigation research is concluded, comprehensive profiles of disastrous jurors (for de-selection purposes) can then be developed, along with specific questions that can be used to target and effectively eliminate such jurors during voir dire. This information is invaluable - it enables the attorney to decipher the case according to the psyches of jurors he/she prefers to decide (or more accurately, not decide) the case.[3]
Typical juror personality types in eminent domain disputes
Some common juror personality characteristics/types that often surface during property condemnation cases include: [4]
Psychocentrics[5] - Psychocentric jurors are the type of people who personalize all issues and negatively judge differences in consequences of equivalent actions. For example, a psychocentric juror may not be inclined to support a property owner in a condemnation cases because, "I lost my home once too, but I didn't make a federal case about it." The psychocentric juror is the type of person who believes that the world revolves around him/her. Consequently, it is very difficult for such an individual to be able to identify with anyone else. If the psychocentric juror was ever in a situation even
remotely similar to the property owner but received little or no compensation, you can bet that he/she will crawl naked over rusty nails before coming to the aid of the property owner.
Aggressives - These individuals will bust through brick walls to achieve personal and/or professional goals or to protect what they believe is theirs. Unwilling to recognize or accept limitations themselves, they often lose patience with extended valuation arguments. Additionally, they may chose to protect the territory or identify with the aggressor (condemning authority) in an eminent domain dispute. Careful research must be done to project jury behavior regarding aggressives since the responses of such individuals can be highly unpredictable.
Authoritarians - Firm obedience and unquestioning allegiance to authority symbols such as governments are common characteristics of these type of individuals. They almost always come down strongly on the side of condemning authorities in eminent domain disputes.
Iconoclasts - These personality types like to bust things up just to see them crumble. They are categorically opposed to established institutions, beliefs, customs, and ideals. They make highly dangerous jurors for condemning authorities in eminent domain cases.
Creatives - Intelligent and insightful, creatives can quickly grasp and appreciate complex "highest and best use" arguments; as such, they can be a property owner's best friends in eminent domain cases.
Progressives - Liberal and well-meaning, such personality types seldom "stand in the way of progress."[6] Indeed, progressives, by their very name, are the ultimate champions of progress. Regarding property condemnation cases, progressives will support the condemning authority or the property owner, depending on which party is best able to demonstrate that their particular litigation position represents optimum "progress."
Environmentalists - A political type rather than a psychological type, environmentalists nevertheless bear mentioning in this section because of the tremendous influence they exert in land use disputes. Their responses as jurors in property condemnation disputes are highly predictable. They will always come down strongly for whichever side appears "greenest."
Risk-takers - Living life on the edge is the psychological hallmark of such bold individuals. Like business entrepreneurs, they are willing to gamble everything on their own personal abilities and talents - but they expect (indeed, demand) a fair opportunity to succeed. Due to this mental framework, risk-takers often appreciate property owners who take risks with real estate and/or capital investments.
Libertarians - "Don't tread on me" represents the psychological rallying cry of such individuals. Like iconoclasts, they viscerally resent authority of all political stripes and colors. Libertarians almost always quickly line up emotionally with the interest of property owners in property condemnation cases.
Psychologically disenfranchised - Loners , misfits, and similar psychological types who feel spiritually and/or emotionally alienated from the society around them are often unlikely to empathize with governmental agencies in eminent domain cases. For such individuals the condemning authority represents a tangible manifestation of the unjust society that has been slapping them around for so long; now in their role as jurors in property condemnation cases they finally get the chance to slap back. Expect them do so.
Tolerance for ambiguity - These personality types find it psychologically impossible to see things in a stark black and white context; this means they can readily acquiesce to nearly any point of view. Often they are willing to halve the difference between disputants in legal cases. Jurors with such psychological predispositions can be desirable for parties in property valuation disputes with weak or difficult to prove cases.
Internal and external locus of control
A significant attribute of certain personality types concerns what psychologists refer to external vs. internal locus of control. The mindset of personalities operating from an internal locus of control perspective is characterized by an attitude that the individual can positively make things happen due to skill, ability, talent, and hard work. Conversely, people who operate from an external locus of control perspective are psychologically predisposed to believe that fate, luck and chance - not talent or effort - ultimately determines what happens to them.
Along this line, the "internal locus of control"-type juror often proves to be a strong advocate for the rights of property owners in property condemnation cases. This type of juror recognizes that it takes a great deal of talent and energy, along with expert wheeling and dealing, to buy and develop real estate; consequently such a juror often believes the property owner should be able to fully benefit financially if his/her property is appropriated by the condemning authority.
Supplemental Juror Questionnaires
Clearly, personality profiling of jurors can provide a reliable guide in determining what type of panelists not to seat in property condemnation cases. As discussed, the attorney employs such valuable litigation research findings to make an intelligent de-selection decision concerning jurors. This can best be handled by using a series of open-ended questions during voir dire - "What are your thoughts regarding [insert case "problem area(s)" here] that will permit the panelists to reveal their true psychological predispositions.
Unfortunately, judges may not provide the full time and/or latitude the attorney needs to adequately learn about jurors and their attitudes, biases, and personality characteristics. This becomes even more of a problem in Federal Court where normally the judges - and not the attorneys - pose voir dire questions to the panelists. How can the attorney therefore secure the key knowledge necessary regarding the jurors' psychological profiles if the judge severely restricts questioning during voir dire?
This can best be accomplished through the use of supplemental juror questionnaires (SJQs). These versatile question forms can be used in lieu of oral questioning during voir dire; or they can be used in addition to voir dire questioning, thus providing an excellent opportunity for highly focused follow-up questions to individual jurors. SJQs furnish comprehensive and definitive portraits of the jurors - who they are; what are their personality characteristics; what their backgrounds and their life experiences may be; and what they think and feel regarding the key condemnation case issues.
Litigation Research
Supplemental juror questionnaires, juror profiling, litigation intelligence surveys, jury simulations and jury focus groups represent extremely valuable tools attorneys can employ to gain the vital intelligence necessary to achieve courtroom success for property condemnation cases. Such activities fall within the domain of litigation research.[7] Litigation research employs actuarial methods based on experimental design.[8] Its product is the statistical analysis and interpretation of systematically collected scientific data concerning probable jury responses to selected stimuli during trial. Nothing is intuited.
Litigation research is concerned with juror predispositions, beliefs, opinions, and attitudes.[9] The findings that derive from this branch of psychology are not foolproof. However, they do significantly increase the probability of de-selecting the worst jurors in a particular venue; and for planning a case presentation that will prove most persuasive with jurors.
The product of litigation research involves scientific results and findings which often are presented as a series of "if-then" statements - "if this trial theme is used, then jury response 'X' will occur"; "if the evidence is presented in this sequence, then 'Y' will occur." Such information can be invaluable in planning courtroom strategy. Much of this litigation intelligence derives from jury simulations/focus groups. How are these research projects organized and what can they achieve?
Jury simulations/focus groups
Jury simulations/focus groups function like a Rorschach test, illuminating jurors' cognitive processes. They consist of abbreviated versions of an upcoming trial presented before a carefully selected sample of surrogate jurors. The deliberations of these jurors are professionally evaluated and interpreted to determine jury attitudes concerning the property condemnation case and all of its key aspects. This includes the basic theme of the case and its presentation.
Formats for surrogate juries vary considerably. The choice of format depends on such factors as the experimental design to be used, the specific issues to be determined, the type and complexity of the case, and so on. Surrogate juries usually are conducted in the venue where the trial will take place. This aids in recruiting surrogate jurors whose values and beliefs will match the jury pool's. The number of surrogate jurors generally will be the same as that of the actual jury.
Investigate what the owner loses
In terms of jury focus group research for eminent domain cases, it is beneficial to investigate not what the government gets in the condemnation action, but instead what the owner loses. Focus groups permit a careful analysis of precisely how jurors will relate to this key issue in all of its possible shadings.
Regarding jury simulations for property condemnation cases: two separate series are generally conducted. (A typical series involves a presentation that is repeated with different groups of surrogate jurors at least three to 10 times. As in any other scientific test, this repetition is essential to ensure the validity of the results.)
The first series of jury focus groups/simulations begins before discovery, i.e., while planning strategy. These research sessions are organized to determine the issues of importance for potential jurors, along with the ideal trial theme and strategy. Jury simulations/focus groups also are useful in determining the order trial information should be presented - a key factor for eminent domain cases.
A second series of jury simulations is performed again 90 days before the trial is to take place. This series helps determine how jurors will perceive the facts, evidence, and arguments once discovery is completed.
Jury simulations/focus groups can reliably indicate what jurors will think and feel about the property condemnation case; what personality types will perceive the case facts favorably (and unfavorably); what are the relevant attitudes that may predispose jurors to be less than neutral; what issues jurors will consider most important; what is the persuasiveness of the attorney's various arguments; which aspects of the case to emphasize along with those to avoid; what trial theme and case strategy will have the most appeal; what voir dire questions will work best;[10] what information jurors will need to hear and when they want that information presented; what areas of the case are subject to faulty perceptions by the jurors; what are the problem areas of the case; what case issues and facts are likely to be misunderstood; and of course, what is the most likely valuation of the case.
Once armed with this data, the attorney can determine a winning trial theme and persuasion strategy for his/her eminent domain case. He/she learns how to answer every question and address every issue that the jury simulations show are critical to a favorable verdict. It's like a poker player knowing in advance what his hand will be - and exactly what cards each other player will be dealt!
Key value of surrogate jury research
Jury simulations/focus groups reliably demonstrate what potential jurors expect to see and hear during a particular property condemnation case, thus enabling the attorney to plan his/her trial persuasion strategy accordingly. Remember: it serves no purpose to stage an opera if people think they will be attending a rock 'n roll concert. You can't persuade jurors in property condemnation cases if your presentation and rhetoric does not address their concerns.
Direct your case like Alfred Hitchcock
One of the most helpful aspects of jury simulations/focus groups is that such research enables the attorney to determine the order in which trial information should be presented. I cannot stress too highly the value of such superior intelligence for eminent domain cases. Jurors can easily get lost trying to assimilate all of the complex information associated with the typical condemnation case. It is critical therefore that all trial information be presented to jurors in a sequence that promotes the most efficient processing. Alfred Hitchcock was a master at building interest and suspense in his movies by introducing events and action in a carefully orchestrated and sequenced fashion.[11] The litigator must do likewise regarding his/her eminent domain case. Litigation research enables him/her to learn precisely how to accomplish this goal most effectively.
Analyzing jurors' "metaprograms"
A key aspect of litigation research regarding property condemnation cases concerns understanding, analyzing, and interpreting the surrogate jurors' "metaprograms"; and how such programs relate to the primary case trial issues, and the manner in which the case will be evaluated by the jurors.
What are "metaprograms?" This psychological term derives from the Latin word "meta," meaning "goal" or "end," and used, figuratively, to describe a "turning point," or "critical moment"; and the word "program," meaning a system under which action may be taken to achieve a desired goal. A "metaprogram" refers to the internal and quite unconscious propensities of individuals (for our purposes, jurors) to make decisions on the basis of important goals and/or events they want to achieve or avoid.
It may be helpful to think of a metaprogram in this way: people are motivated and energized to think, feel, and react in a certain way, i.e., to provide pleasure and/or happiness (a "towards" metaprogram), or to avoid negative feelings (an "away" metaprogram). For example, a juror may resent the owner's good fortune in seeing his/her undeveloped parcel dramatically skyrocket in value due to the taking, and thus try to limit the amount of money the owner receives as compensation (an "away" metaprogram); or the juror may want to make sure that nothing stands in the way of the condemning authority quickly appropriating the parcel in question in order to improve it for the benefit of the general public (a "towards" metaprogram).
The attorney cannot develop an effective trial or settlement strategy, or even properly pick a jury, if he/she does not understand how the jurors' various metaprograms may affect the manner in which they evaluate and decide the property condemnation case. The attorney needs to know, in other words, how the case will affect the jurors - i.e., which of their psychological "buttons" will be pushed. Such information can be determined most effectively through the professional analysis and interpretation of litigation intelligence accumulated during jury focus groups and jury simulations.
Metaprograms and value beliefs
Metaprograms are closely tied to value beliefs, the bedrock principles upon which people operate. Value beliefs can be identified when jurors use such words and phrases as "should," "must," and "ought to"; or when they generalize, such as "everyone" and "anyone." So, for example: "government agencies should.....," "people must.....," "the property owner ought to.....," "everyone knows that.....," "anyone could have seen.....," and so on. Value beliefs also can be identified when jurors use this type of phrasing: "it is dangerous to.....," "it's natural to expect that.....," and/or "I feel.....", "I think.....," and "I want."
Juror metaprograms can be elicited by asking the following type of questions during focus group research: "What is important about.....?" "Why do we need/want.....?" "What do you expect when.....?" "How do you know when.....?" or "How can you decide if.....?"[12]
Uncovering the jurors' various metaprograms should be a key element in any litigation research regarding property condemnation cases; this information can provide a strong foundation for presentation/persuasion planning that has the best opportunity to achieve courtroom success.
Juror perceptions/misperceptions
Peoples' perceptions are strongly influenced by accompanying unconscious associations. When the word "dog" is mentioned, for example, one person immediately sees a lovable Cocker Spaniel; another pictures a vicious Pit Bull. Who is correct? Of course there is no "right" answer for this example. It simply shows that we all perceive the world differently. Along this line many attorneys fall victim to a common cognitive error known as correspondence bias, by which they assume that jurors will automatically perceive the case precisely the way they do.
This can be a dangerous mistake to make in the courtroom. A trial represents a medley of powerful word "symbols" - "highest and best use," "responsibility," "goodwill," "arrogance," "good faith," "excessive (or inadequate) compensation," and "public good." The task of the attorney is to decode these symbols according to how the jurors will specifically perceive them; then tie the other side to as many negative symbols as possible, while claiming the positive symbols for his/her own case.[13]
Everyone is familiar with the issue of "attorney perspective" vs. "jury perspective" - i.e., what turns out to be important to the jurors when deciding the case may not be important to the attorney. This oversight is due to correspondence bias. Attorneys on the losing end of cases often state after trial that, "We didn't anticipate the importance jurors would place regarding_________." This is unfortunate. Litigators who do not investigate how jurors assign meaning to the eminent domain case's key hypothetical constructs and symbols will always face an uphill battle in court.
The way to overcome the common problem of correspondence bias is to conduct litigation research to determine precisely how jurors will interpret the case's key information, constructs, and symbols; and to examine which arguments, rhetoric, and demonstrative evidence/exhibits jurors will find most persuasive. Armed with these invaluable insights the attorney can then plan the optimum case persuasion strategy.
Information gatherers - information seekers
I teach a course on the psychology of jury selection at Nova Law School in Davie, Florida, near Ft. Lauderdale. While lecturing students I have noticed an interesting phenomenon: few students take notes today. This runs directly counter to my own experience in graduate school in the '70s when students would feverishly attempt to transcribe every word from the instructor. People my age are, in effect, information gatherers, i.e., we gather and hoard information like a squirrel with its nuts. Younger people on the other hand are information seekers. This means they exhibit a "point and click" Internet mentality, i.e., they expect to quickly receive the information they want now, immediately, right away, followed by additional information transmitted just as briskly and efficiently. And woe to the communicator (or persuader) unable to deliver information at this heady pace! For the litigator, this means that he or she must be prepared to go into trial with a full grasp of the information jurors want and the order in which they want it.
Plan on a richly textured multimedia presentation
This striking dichotomy regarding the information receiving and processing styles of older and younger people has major significance for attorneys in eminent domain cases. If a jury is primarily comprised of people in their twenties and thirties, it is essential that the attorney plan a fast-paced multimedia trial presentation that will capture and hold the jurors' interest and attention. This means the attorney may wish to incorporate the following in his/her presentation: