Law Tips – Jury Psychology

Law Tips – Jury Psychology

Our Law Tips this week shares some interesting insights from Dr. Eric Rudich, Senior Litigation Consultant at Magna Legal Services, New York, NY, who participated in the 2011 Midwest Intellectual Property Law Summit.  As an expert in jury psychology, he specializes in identifying powerful themes and arguments, developing persuasive visual graphics, creating sophisticated juror profiles and preparing witnesses.  Dr. Rudich has developed a unique niche of advising investment clients on jury trials that have market significance for publicly-traded litigants. On behalf of these clients, he has conducted jury research and monitored the trials of over 20 patent cases.

His ICLEF presentation at the Intellectual Property Summit gave some powerful recommendations on conducting research, developing strategies and profiling jurors that could be of value beyond the patent practice area. To compliment his CLE he provided a reprint of an article he wrote for the January/February 2011 issue of Landslide, a publication of the ABA Section of Intellectual Property Law entitled “Litigation strategies that win or lose patent jury trials.”   In this article he notes that “although the subject matter in these trials is complicated and tedious, there are strategies that enable attorneys to prevail in patent cases.”  I am including an excerpt that addresses how vital it is to understand how jurors make decisions based on complex information.

Juror Decision-Making in Patent Trials

To understand the information-processing strategies of patent jurors, the Elaboration Likelihood Model (ELM) provides a theoretical model of persuasion that is used for understanding how individuals make decisions based on complex information.viii The ELM has been significantly researched in communication studies and social psychology and offers insight into ways in which individuals process information after being exposed to persuasive arguments during trial.

According to the model, there are two distinct and mutually exclusive information-processing pathways that people use when making decisions. Which one of the two pathways used by an individual is determined by the complexity of the information presented and the ability of the message recipient to comprehend the message. xi When individuals have the ability to understand and scrutinize a message, they form their verdict decisions by what is known as the central route for decision-making. This describes decisions characterized by careful, deliberate, and rational thinking and requires for the decision-maker to carefully scrutinize the content of the message. x   In a patent case, this would necessitate jurors to rationally consider the invention, patent language, infringement, validity defenses, claim constructions and other court instructions. Litigators typically seek to deliver the types of evidence and arguments that facilitate this careful and rational approach to verdict decisions in patent cases.

The model also instructs that when complex information is presented, people make verdict decisions without scrutinizing the message. Such a superficial thought process is referred to as the peripheral route of decision making. Under these conditions, a complex message is not only evaluated on its merits, but is also assessed based on surface characteristics otherwise known as peripheral cues.xi  A peripheral cue refers to information that is tangential to the message, for example, the   witnesses’ credibility, credentials or demeanor.

Based on the model, jurors will use both the central route and peripheral route for making verdict determinations. Although most jurors do their best to comprehend the technology and law, their limited expertise in the technology and patent issues leads them to rely heavily on peripheral cues for making infringement and validity verdict decisions. While it is critical to educate jurors about the technological and legal issues, these peripheral cues provide insight into how jurors make verdict decisions in patent cases.

In conclusion Dr. Rudich addresses how important it is that attorneys remain courteous and respectful of witnesses in order to have the greatest impact on the jury.  And lastly, that the difference between winning and losing is often related to the attorney’s use of peripheral cues to their advantage.  Perhaps this advice could be applied to any negotiation or persuasion situation in our lives.

Thanks again to Dr. Eric Rudich for his contribution as an ICLEF faculty member.

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You may purchase the E-Publication of the 2011 Midwest Intellectual Property Law Summit by Clicking Here.

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viii See Alice H. Eagly & Shelly Chaiken, The Psychology of Attitudes, 305-325 (1993)

xi Id. at 306-307

x Id. at 306

xi

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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