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T H e O l d e s T l A w J O u r N A l I N T H e u N I T e d s T A T e s 1 8 4 3 - 2 0 0 9
philadelphia, friday, may 29, 2009 VOL 239 • NO. 103
J u ry a N a Ly s i s
Jury Selection and the Injured Plaintiff: How Do Jurors Relate?
Are Jurors Who Are Similar to an Injured Plaintiff More Likely to Find Liability?
By Melissa M. GoMez Kerr’s similarity-leniency hypothesis
Special to the Legal MelISSa M. GoMez
is a jury consultant and is based on the belief that we provide
I
t all seems to make perfect sense. owner of MMG Jury more lenient treatment to those similar
Consulting LLC. She to ourselves. A deeper look into the
In a case with an injured plaintiff,
holds a Ph.D. in psychol-
the best jurors for the plaintiff ogy from the University of psychology of social identity, though,
would be folks who could relate to her, Pennsylvania. Her experi- reveals that leniency or in-group bias
ence includes work on more toward others with whom we identify
and who could picture themselves in
than 100 jury trials in
her shoes, right? That is the common Philadelphia and across is not always the case. The difference
thought among both plaintiff and the country, with a focus on the psychology of juror comes when a person who would
defense counsel in most cases. As a learning, behavior and decision-making. She has typically be considered a member
more than a decade of expertise in research design
result, the defense will tend to use a and methodology, as well as in behavioral and com-
of the in-group is perceived to have
jury selection practice to determine munication skills training. unfavorable traits. In these instances,
which jurors will identify most with what can happen is called a “black
the plaintiff and strike them, while sheep effect.” The black sheep effect
plaintiff counsel will focus on striking socio-economic status, career, interests is a phenomenon in which harsher
folks unlike their clients. The question and skills. After we have made our treatment is given to a person within
is: Are both sides striking the wrong categorizations, we identify or associate the in-group if that person is perceived
people? ourselves with certain groups and as having a characteristic that reflects
First, let’s look at the psychological consider these our in-groups. Finally, poorly on the in-group. In other words,
theory behind the premise of we compare and contrast our in-groups the same people who identify with
identification with another person. with other groups. an individual plaintiff may want to
Taking a step back, Henri Tajfel and Of course, the reason why most disassociate themselves from that
John Turner explain the basic process plaintiffs attorneys seek to seat jurors person, and actually be the most
of group identification in their social who appear to be similar to their clients unfavorable jurors to that plaintiff.
identity theory. First, they say, in order is because they believe that there is a Jury research conducted on two
to psychologically simplify our world, natural tendency to ascribe positive cases involving fatal or catastrophic
we naturally categorize people into characteristics to the in-group, and injuries illustrates how the black sheep
groups. The most basic of these groups therefore, jurors will have a natural effect may manifest itself in cases
is based on easily identifiable traits empathy toward a plaintiff with whom with injured plaintiffs. In the first case,
such as race and gender. That said, folks identify. Tajfel and Turner called a warehouse worker was rendered a
categorizations may be based on any this phenomenon in-group bias. Norbert quadriplegic after an accident in which
trait that is salient at the time, such as Kerr called it similarity-leniency. he ran a forklift into a pole. He sued the

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friday, may 29, 2009
forklift manufacturer and the company unwillingness to take responsibility for on perceptions of criminal defendants.
that designed the racking system layout their own actions. As a result, there is little empirical
in the warehouse. Focus group research That is not to say that the similarity- evidence in an academic context to
data revealed that the jurors who leniency theory does not apply in many, support either the similarity-leniency
were the plaintiff’s worst critics were or even most, cases. It is often true that or the black sheep effect phenomena
those who resembled him prior to his a juror who identifies personally with in a civil courtroom. Therefore, more
accident. specifically, the salient in- an injured plaintiff will have a higher research toward this aspect of juror
group for this plaintiff was composed level of sympathy than someone who psychology is certainly warranted to
of blue-collar workers, particularly does not. understand how people psychologically
those who operated heavy machinery. In fact, in these very same cases, perceive themselves and plaintiff in the
These jurors rejected the plaintiff as a there was another way in which jurors social context of the courtroom and
member of the in-group. Instead, they identified with the plaintiffs in a manner how that may affect their judgments.
decided that the accident was his fault. that was more in line with traditional, regardless of the academic research,
Their mantra was “I would not have hit intuitive thinking. specifically, while it is critical to evaluate each case
the pole.” jurors who were critical of the plaintiff and its idiosyncrasies that may cause
The second case involved a tragic identified with the plaintiff before the a particular set of jurors to respond
accident in which a young child was accident, the most favorable jurors were to case facts in a counterintuitive
fatally injured during an accident with manner. Needless to say, there are
a piece of landscaping equipment his multiple variables at play that we have
father was using. The family sued to consider when determining the best
the manufacturer for faulty design. It is often true that a juror jury selection strategy. For the cases
while the accident happened at the who identifies personally cited above, these variables included,
home, the father worked with heavy inter alia: whether the culture of the
machinery for a living. In this case, with an injured plaintiff venue valued personal responsibility
a profile telephone survey revealed will have a higher level of over corporate responsibility, and if the
similar findings to the first example. trial involved a situation in which the
specifically, the father’s worst skeptics
sympathy than someone plaintiff did have a role in the incident
were those who resembled him before who does not. that caused the injury.
the accident happened: Males who Focus groups, telephone surveys or,
were familiar with technical matters at least, a very critical look at the issues
and heavy equipment. those who identified with the plaintiff to evaluate the juror profile in a case
In both of these cases, these after the accident. These jurors related are critical. In essence, taking a hard,
disparaging jurors did put themselves to the plaintiffs’ hardships. They had strategic look at a case as opposed
in the plaintiff’s shoes. Instead of their own financial hardships and were to going with traditional thought can
finding the empathy that the similarity- caretakers of those unable to care for make the difference between striking
leniency effect would have predicted, themselves. In other words, these jurors the worst jurors and inadvertently
though, the plaintiff found harsher identified with the plaintiffs’ injuries getting rid of the best. •
criticism. These jurors decided, “if I and victimization, not their actions.
were in this plaintiff’s position I would Formal research on similarity-
have been able to avoid the accident.” leniency and the black sheep effect in Reprinted with permission from the May 29, 2009 edition
They were unforgiving of the plaintiffs’ civil cases is anemic. Most of the focus of The LegaL InTeLLIgenceR © 2009 Incisive Media
US Properties, LLc. all rights reserved. Further duplication
failings and they neither understood has been on external variables such as without permission is prohibited. For information, contact
347-227-3382, reprintscustomerservice@incisivemedia or
nor sympathized with the plaintiffs’ race and has primarily addressed impact visit www.imreprints.com. # 201-06-09-02