Montana Lawyer April/May 2025

evidence and found for the plaintiff. We recently watched a mock juror outline the HR processes used at her workplace and use those processes to judge defendant company’s HR actions. As a result, she came up with her own, independent reason why she believed the defendant was liable even though it was not an argument put forth by the plaintiff. Jury de-selection, which focuses voir dire on identifying people with experiences and beliefs that cut against your case theory, may seem simple and obvious, but we continue to be shocked by the number of trial attorneys who make no effort to de-select, instead getting caught up in theme-building, priming, or whatever the voir dire workshop “trick of the day” seems to be at the time. The idea of priming seems just a bit too attractive to trial attorneys, even though there are no studies supporting the effectiveness of this strategy and the few that have been done actually show priming efforts in voir dire can actually have the opposite effect. Ironically, continuing to focus on priming in voir dire in the face of the research that suggests it is counterproductive and unhelpful makes the guilty attorney a “post-truth” litigator in a sense. The strategy implications of our “post-truth” era do not end with jury selection. At its core, the “post-truth” evolu tion is about people desperately looking for a way to make sense of things and relying on tools that “feel right” to them. Unfortunately, what “feels right” is not always what actually is right. Too often, attorneys focus on proving their case instead of persuading jurors, which are distinctly different things. It does not matter how much evidence supports an argument if that argument does not “feel right” to jurors. A classic example is the belief that large corporations put profits over safety. This is a widely held view. Jurors are skeptical of large corpora tions, which is why it is so ineffective for defense attorneys to dedicate a portion of their opening statement to how won derful and caring their corporate client is. Jurors don’t buy it because it does not feel right to them that large corporations care. Instead, it is more effective for these defense attorneys to show how the profit motive leads their corporation client to make safe decisions. In other words, the defense can highlight how safety is more profitable for the large corporation than the alternative. This directly aligns the defense case theory with what “feels right” to jurors, namely that profits drive corporate decision-making. In a day and age where so many people feel dis empowered and helpless when it comes to soci etal issues, jury duty is one of the few instances where people feel they can spur meaningful change. To sum up this point, a “post-truth” strategy cares less about the amount of evidence and instead focuses on highlight ing evidence that resonates with jurors or “feels right” to them. It doesn’t matter how much evidence you have if the evidence goes against what feels right to jurors, just as it was with the juror in the foodborne illness case. This is one of the greatest values of mock trials and focus groups; they give the trial team a dataset for understanding what evidence and testimony “feels

right” to the jurors. The final implication is another trend that coincides and interacts with the “post-truth” evolution. All signs point to the rise of juror activism (nullification in many instances). In the face of confusion and uncertainty, not only are jurors deferring to what “feels right” to them, but they are also incorporating what they want to be right about the world. In a day and age where so many people feel disempowered and helpless when it comes to societal issues, jury duty is one of the few instances where people feel they can spur meaningful change. Many jurors refuse to let this opportunity pass without taking ad vantage. In mock trials, we see more and more speeches about what a verdict can accomplish beyond making the plaintiff whole. Jurors want to use their verdicts to spur change even when punitive damages are not a claim in the case. Instead, jurors just lump their “punitive” award into their noneconomic damages award. Here’s a quote from a mock juror in a recent mock trial: “Juries awarding verdict and making judg The implication of this trend is that case theories must align with the world jurors want. Jurors want the simple story of how a vote in your client’s favor accomplishes justice. It is a basic rule of decision-making that people prefer to make decisions they can feel good about. In our strategy development exer cises, we always ask members of the trial team to draft single sentences that encapsulate what a verdict in favor of their cli ent accomplishes. It is so important to engage in this exercise of clearly writing it out. So often, attorneys think there is an obvious “feel good” element to their case, but struggle when it comes to clearly articulating what it is that jurors should feel good about. Sometimes, it may be as simple as forcing the plaintiff to finally accept accountability for his or her choices. In summary, while most who write about this new “post truth” era do so with a sense of helplessness toward what our society has become, there are very practical implications that can directly impact the likelihood of success at trial. “Post truth” is not simply a criticism of people who make decisions we don’t agree with. Instead, it is a map for understanding how to better connect with jurors in this day and age. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO. ments and all this stuff…that’s where you have the power to change what is happening. If a jury thinks that what is going on is wrong and shouldn’t be happening, they make their voice known with the verdict and the award they give to the plaintiff. That’s where people have the power. That’s the whole purpose of the court system and juries.”

APRIL-MAY 2025

21

WWW.MONTANABAR.ORG