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The Impact of Social Media on Today’s Trials: Choosing the Jury and Convincing the Jury

I was people-watching a few months ago in a crowded airport waiting area. I had already spotted the jittery first-time flyer and the “I’m so important” businessman when I noticed something much more interesting, something truly odd. Of the fifty or so people waiting for the early morning flight, I was the only person looking around. Every other person in the waiting area was looking down, absorbed in some digital device. People were texting on their iPhones, posting updates on Facebook or playing Angry Birds on their iPads, reading a novel on their Kindles, or answering emails on their Blackberries. There was no conversation in the room at all. Fifty people in a public place were utterly silent except for a few soft tapping sounds. It was a sad, but intriguing, picture of today’s culture.

Most of us know that people in the U.S. today spend large chunks of their lives online. We might even be able to quote statistics like nearly all Generation Y members (96%) have joined a social network, that one of eight couples married in the U.S. in recent years met online, that one in six higher education students are enrolled in online courses, and that if Facebook were a country, it would be the world’s fourth largest. But statistics like these don’t address the really intriguing questions: What effect has living online had on people? Has it changed how they think? Has it changed their attitudes? Has it changed the way they expect to learn new information? What do people truly reveal about themselves online? Do they reveal who they really are or who they want to be?

These are not theoretical questions. Pharmaceutical companies constantly face situations in which they need to persuade, inform, and motivate people, both in the marketplace and in the courtroom. Doing so effectively requires a real understanding of today’s audiences, how they have changed, and what they expect — whether those audiences are patients, doctors, or jurors.

I study today’s jurors: how they decide pharmaceutical cases, what they want to hear from pharmaceutical companies at trial, and how potentially dangerous jurors can best be identified in jury selection. What I’ve found is that social media has had a real impact on all three of these issues. This article summarizes this impact and provides some pragmatic answers to several questions about today’s “media driven” jurors.

Choosing the Jury: How useful is the information jurors post on social media or blogs? What if anything does this information reveal about the way jurors will decide a case? How should attorneys use this information in jury selection?

Convincing the Jury: Has all this time spent online changed the way jurors expect to receive information at trial? Do pharmaceutical companies need to present evidence differently?

Understanding the Jury: Do today’s jurors have different attitudes toward pharmaceutical companies? Do they have different expectations of plaintiffs who sue pharmaceutical companies?

Choosing the Jury: What jurors’ social media posts reveal about them

There are already many anecdotes about attorneys whose online searches uncover secrets about potential jurors. For example: the potential juror in the toxic tort case who looked reasonable in voir dire but whose Facebook page had a link to a website called Use BP Executives to Plug the Oil Leak, the seemingly ordinary juror in a criminal case who had dedicated a website to his murdered son and posted irate comments about how the system had failed him. Stories like these already abound. But behind these vivid anecdotes is another more realistic picture — the hundreds of fruitless online searches, the mistaken identities, and the very real temptation for attorneys to over-interpret the information jurors post about themselves (e.g., Her Facebook profile says she is “opinionated,” so she is likely to be a leader in deliberations). And for every anecdote about some tantalizing clue found online, there is a cautionary tale: the paralegal who found some devastating fact about a potential juror online and breathlessly related this information to the trial team in the heat of jury selection, only to retract it three minutes later saying “it may not be the same person.”

Accurately using online information in jury selection requires real discipline because the short answer to the question of what jurors’ online posts reveal about them is nearly always nothing. “Nothing” because it may not be the same person, “nothing” because the posted information may reflect who the juror aspires to be rather than who the juror will actually be in deliberations, and “nothing” because the posted information may be intriguing but completely irrelevant to how a juror would decide a pharmaceutical case.

Resisting temptation: Much of the discipline comes in attorneys resisting the temptation to read too much into information found online. Imagine a situation where you’re doing jury selection in a pharmaceutical case, and an exhaustive internet search reveals that a potential juror’s Facebook page contains several comments like “I’m sick of high gas prices,” and “I can’t afford to fill up my car anymore.” The juror has not mentioned anything about this feeling in her juror questionnaire, and you can’t ask her about it. How do you use this information? What does it mean about the way this person will decide your pharma case? The temptation is to try to make this information meaningful, to theorize that this juror probably dislikes oil companies, so she dislikes all large corporations, so she will dislike the pharmaceutical company you represent, so she will be plaintiff-oriented. The odds are very good that this jurors’ comments on Facebook mean nothing about how she will decide a pharmaceutical case, but it is very difficult not to assign at least some meaning to them.

When examining the information potential jurors post online, attorneys need to be aware of a problem with human thinking called the availability bias. Simply put, when confronted with a decision, people’s thinking is strongly influenced by what is personally relevant, salient, recent, or dramatic. Nothing is more dramatic these days than what jurors post online, and many attorneys are prone to over-valuing online information about jurors. Thus, the meek and silent juror in voir dire becomes “a loudmouth” (and potential foreperson) because that’s what a Google search by the trial team revealed about her. The juror who posts a simple “I’m sick of high gas prices” on Twitter is viewed as anti-corporation and likely plaintiff-oriented. There is a strong temptation for attorneys to make online information meaningful to their jury selection decisions, even if it really isn’t.

Not truth serum: Another factor attorneys need to consider about online information is that the internet is not truth serum. A song by country singer Brad Paisley even makes fun of how much people lie about themselves online.1 But even if jurors are not intentionally lying, it is important to remember that the information they post may not accurately reflect who they are. The young man with 936 Facebook friends may still be a wallflower; the woman who posts on conservative political blogs may not be against awarding damages in lawsuits. Jurors’ comments online are often more about who they want to be rather than who they really are. Their online comments are aspirational rather than realistic. It’s also important to remember that when jurors post comments online, they are often playing to an audience (their friends, people who read their blogs, other like-minded people) rather than revealing their real beliefs and attitudes. But when jurors enter deliberations, their true attitudes and beliefs — not the aspirational or showy beliefs they post online — govern their decisions.

Rule of thumb: Courts have made various contradictory rulings about the extent to which attorneys can use online information, but it is certainly a trend that is here to stay, at least in some jurisdictions. What is the most accurate and reliable way to use this information without over-interpreting it? The best current rule-of-thumb is this: If the relevance of the online information leaps off the page, use it. If the online information requires a great deal of theorizing to make it relevant to your case, consciously undervalue it. Thus, if a potential juror posts “I think pharmaceutical companies caused my mother’s death” or even “I think prescription drugs are much more dangerous than companies admit,” that information is obviously relevant to how that juror will decide a pharmaceutical case. But if a potential juror posts “I just had the worst experience at my Toyota dealership,” attorneys should consciously undervalue that information, even if it can be spun into a theory about how that juror might be angry at all product manufacturers. The final rule-of-thumb to remember is that the internet is never a substitute for doing a good voir dire and writing a good juror questionnaire.

Convincing the Jury: Has all this time spent online changed the way jurors expect to receive information at trial? Do pharmaceutical companies need to present evidence and case information differently?

I get to work with some of the most experienced trial attorneys in the country, men and women who can grab and hold jurors’ attention, who can give quick “sound bite” versions of their case. Yet some of these talented and highly verbal attorneys have been caught a bit off-guard by the expectations of today’s juries. Jurors today live their online lives surrounded by visual, pre-digested, and easily understood information. Much of their communication is in short, concise 140 character messages, tweets, or Facebook posts. They have begun to expect a different kind of presentation from attorneys at trial; one that is more visual, one that provides simple take-away messages before diving into the details, and one that clearly links information to the verdict decisions that jurors will have to make.

A quick glance at any major news website will tell you exactly how jurors today expect to get information. Consider a link to an article on NYTimes.com titled “A Neuroscientific Look at Speaking in Tongues.” If you clicked on this link, what would you expect to see? Certainly an easily understood summary of the article, perhaps a picture of a person speaking in tongues in a charismatic church, probably a graphic of a brain scan, and likely a few additional links for learning more information about the topic. Clicking on the link reveals just that: an easily understood summary of the article (“The passionate, sometimes rhythmic, language-like patter that pours forth from religious people who ‘speak in tongues’ reflects a state of mental possession, many of them say. Now they have science to back it up.”), a photograph of a woman in a Congo church speaking in tongues, an interactive graphic of a brain scan, and some links to additional information.2 That’s how today’s jurors get much of their information: in a highly visual, predigested format, with clear links. But all too often, that’s not how attorneys deliver information to jurors at trial.

The dump truck: I have a mental image of the attorney who wakes the morning she is going to deliver opening statements, grabs a cup of coffee, reads a few punchy and visual news stories on MSN.com or NYTimes.com, then goes to court and spends hours dumping mounds of boring and almost exclusively verbal information into jurors’ laps. Too many attorneys still take what I would call a “dump truck” approach to presenting their case to a jury. They dump a mountain of facts — all the facts they’ve learned in the past several years, facts about their client, facts about causation, facts about the drug at issue — and then essentially let the chips fall where they may. The problem with this approach is that jurors today never get information presented to them this way.

Certainly, it is not possible to “package” all the various aspects of a pharmaceutical trial just like websites package information, but here are two takeaway lessons:

Seeing the message: One primary lesson is the importance of delivering key case messages visually. The goal here is not to have a large number of pretty but empty graphics; it is to identify a few key case messages and to make sure these messages are delivered to the jury visually as well as verbally. For example, we did jury research on a case involving a plaintiff who claimed that radioactive dye used in a diagnostic procedure had damaged her kidneys. The defense attorney at the research showed a graphic of a kidney and presented a great deal of information on how the kidney functions to our mock jurors. He did a good job keeping his information simple, but the key message (that radioactive dye damages one part of the kidney and the plaintiff’s damage was in another part of the kidney) was lost in the attorney’s kidney tutorial, largely because this message wasn’t delivered visually; it wasn’t shown on his graphic. Our mock jurors appreciated his simplicity, but not a single one of them understood his point. Once jurors were shown this point with two Xs on the graphic (one showing where the dye caused damage, one where the plaintiff’s damage actually was), they understood what the defense was trying to say.

Even today, some attorneys believe that good graphics will make them look too slick in front of a jury. I have worked in some of the tiniest rural venues in the country, and jurors in these venues (and every other venue) have a single reaction to good graphics: Thank you. Thank you for making the effort to make this case easier for me to understand.

Hitting the links: The other takeaway lesson is to make sure relevant information is linked to jurors’ verdict decisions — i.e., that they understand not just what you are talking about but why you are talking about it. One mistake even experienced attorneys (and witnesses) make is that they don’t tell jurors why the information they present should matter to jurors’ verdict decisions. Instead, many assume that jurors will understand why this information matters. This assumption is often incorrect. For example, in jury research of a small plane crash case several years ago, a highly credentialed defense expert showed a video of a fighter jet crashing. During this video, he discussed various reasons for why the jet in the video crashed and the forces involved in producing this crash. Jurors liked the expert, but they had no idea why he was testifying. They missed the central point of his testimony — which was to demonstrate why eyewitnesses to the accident said the plane’s wings were level even as it crashed. Instead, jurors were left wondering why this expert was showing them a video of a fighter jet. All jurors needed was a clear link (a quick statement about why this information mattered from either the witness or the attorney doing direct examination), and this witness would have been much more effective. This linking problem, unfortunately, is common with witnesses.

Attorneys can “hit the links” anytime they transition from one topic to another in opening statements, closing arguments, or in direct examination of witnesses. Simple reminders (“One of the questions you’ll be asked at the end is about the adequacy of the label; that’s why we’ve been going through information about what the label says and how it is supported by the science,” or “We’ve been talking about the plaintiff’s family history because one of the questions you’ll be asked is whether the medication caused the plaintiffs’ illness”) are often very helpful for ensuring that jurors know how to use the information that is being presented. It may sound basic, but today’s jurors really appreciate attorneys who make ongoing efforts to remind them how the information being presented helps them do their job.

Understanding the Jury: Do today’s jurors have different attitudes toward pharmaceutical companies? Do they have different expectations of plaintiffs who sue pharmaceutical companies?

With all the online product information available to jurors in their daily lives, one might logically expect them to have higher expectations of plaintiffs in pharmaceutical cases — i.e., to criticize plaintiffs for failing to do their own research before using a medication or to insist that plaintiffs had to have known or could have easily learned about potential risks of a medication. One might even logically expect juries to be more likely to conclude that pharmaceutical companies provided sufficient warnings or that manufacturers would be less likely to produce an unreasonably dangerous product, given that any negative publicity about a medication could spread like wildfire through social media or consumer websites.

But the opposite is proving true. Jurors’ ever-increasing access to information about medications has not improved the situation for defendants in pharmaceutical cases. Our jury research across many different pharmaceutical cases shows that despite the vast amounts of product information available to today’s jurors in their everyday lives, they are not holding plaintiffs to a higher standard in court and they have certainly not become more likely to believe pharmaceutical companies provided adequate warnings. Certainly, there are still defendant-friendly venues across the U.S., but the trend in our research is clear — if anything, juries are less inclined to hold plaintiffs responsible and more inclined to conclude that pharmaceutical companies failed to warn adequately. Jurors are surrounded by warnings and can easily access product information in their everyday lives, yet many are still likely to come to court and conclude that the pharmaceutical company didn’t provide adequate warnings or that plaintiffs weren’t adequately informed about the risks of using a particular medication. What accounts for this seemingly illogical trend?

High information/low trust: When it comes to juries, pharmaceutical companies don’t have an information problem; they have a trust problem. Simply put, many of today’s jurors have lost faith that pharmaceutical companies take patient safety seriously. Jurors’ distrust of pharmaceutical companies obviously has a strong impact on how they view information about medications, whether they see this information on television, online, or at trial. For example, today’s jurors often see the rapid-fire list of a drug’s potential side effects in pharmaceutical commercials as simply the pharmaceutical company trying to protect itself or meeting some legal requirement, not as a real attempt to inform consumers about the drug’s potential risks. Because they don’t trust pharmaceutical manufacturers to take drug safety seriously (and suspect that these companies hide risk information), many jurors also believe the risk information in these commercials (and online) is inaccurate or incomplete.

Restoring trust: So how can pharmaceutical companies regain the trust of today’s jurors? Recognizing that trust is now a huge issue for jurors is an important first step, but pharmaceutical companies must take other affirmative steps at trial to demonstrate to jurors that they are trustworthy. Some important trust-building strategies include:

• Conduct before causation — Order matters to jurors. In opening statements, with defense witnesses, and in closing arguments, corporate conduct — specifically the company’s commitment to safety — should be addressed before other defenses (alternative causation, the plaintiffs’ knowledge and control, etc.) are discussed. Jurors need to be reassured that the company cares about safety before they are introduced to other defenses. The safety defense needs to be specific; jurors want to hear a story about the safety of the specific medication at issue, not a story about the company’s broad commitment to safety (or the company’s charitable efforts or other good works). Telling an overly broad and glowing story about the company’s commitment to safety can actually backfire on defendants; jurors are quick to conclude that a company is only talking about its broad commitment to safety because it cannot tell a good story about the safety and testing of the specific medication at issue.

• The corporate historian — Pharmaceutical companies often lack company witnesses who can tell the whole medication safety story at trial, explaining to jurors how the company carefully tested the drug, warned of risks, monitored the drug on the market, and reported what it knew to the FDA. It can be very helpful for companies to develop a corporate historian, a witness who is familiar with all aspects of drug development who can then tell jurors the complete drug safety story. This witness does not need to have been personally involved in all of the drug development and testing stages; he or she just needs to be familiar with these stages. Developing this kind of witness can require a significant investment of time and effort, but this investment can pay huge dividends for pharmaceutical manufacturers at trial.

• Trustworthy company witnesses — All too often, pharmaceutical defendants offer jurors company witnesses who are overly cautious scientists. These witnesses often make little effort to communicate their concern about drug safety. Company witnesses — particularly those who are involved in drug testing and development — are not all likable or charming, and fortunately, they do not need to be to have a positive impact on jurors. In fact, the highest compliment jurors can pay a company witness is, “That’s the kind of person I would want in charge of safety.” For example, in a recent pharmaceutical case, the most effective defense witness was an internal company scientist who was not particularly warm or charming. Instead, he was formidable and toughminded, but he clearly communicated that he was focused on ensuring that the drug at issue was well-tested. Jurors reacted positively to his testimony, noting that they felt better knowing such a tough person was in charge of product safety. A useful exercise for any company witness — no matter how minor his or her role in the case — is to consider how he or she can come across as someone jurors can trust to produce a safe medication.

• Empathetic attorneys — Particularly in cases involving products that jurors or their loved ones might use (i.e., pharmaceutical products), it helps to have attorneys who are able to connect with jurors at an emotional, not just a cognitive, level. In today’s distrustful climate, defense attorneys need to be able to show real compassion for a plaintiff’s injuries, even if they are asserting that the pharmaceutical company bears no responsibility for these injuries. As with company witnesses, defense attorneys do not have to be particularly warm or charming, but they do need to be more than just evidence narrators; they need the ability to speak directly to jurors’ fears and distrust and to jurors’ desire to be reassured about drug safety.


[1] “Online,” from Paisley’s album 5th Gear.

[2] Carey, Benedict, “A Neuroscientific Look at Speaking in Tongues,” The New York Times Online, November 7, 2010. Available at <http://www.nytimes.com/2006/11/07/health/07brain.html>. Last accessed August 1, 2011).

Finis

Citations

  1. “Online,” from Paisley’s album 5th Gear. Jump back to footnote 1 in the text
  2. Carey, Benedict, “A Neuroscientific Look at Speaking in Tongues,” The New York Times Online, November 7, 2010. Available at <http://www.nytimes.com/2006/11/07/health/07brain.html>. Last accessed August 1, 2011). Jump back to footnote 2 in the text