Trial Science | Black-and-white or grey?
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Black-and-white or grey?

As I read a 1981 study by O’Keefe and Delia (Communication Monographs, volume 48), it occurred to me that, unbeknownst to them, the variable they were testing has some very practical voir dire applications.  They were studying a factor called “construct differentiation,” which has to do with the relationship between attitudes and behavior.  It caught my eye because during jury selection we are looking at jurors’ expressed attitudes and trying to correlate those with their behavior (vote) at the end of the trial.

O’Keefe and Delia came to two important conclusions:

  1. People with highly developed construct differentiation systems were more able to reach decisions that conflicted with some of their own attitudes; while,
  2. People with less developed systems were the opposite, desiring their behavior to be consistent with their attitudes.

Wait wait wait.  Back up:  What does “highly/less developed construct differentiation” even mean?

Like most things in psychology, it sounds cooler and more complicated than it really is.  Let me give you two simple examples to make it clearer:

  1. If you ask a person (like the researchers did) to describe someone they like a lot in one paragraph, the number of different characteristics and/or the adjectives or adverbs they use in their description are “constructs” of their attitudes—pieces of their overall opinion of the person, if you will.  For instance, if a response were, “She is very smart, highly energetic, quite positive, caring, and just fun to be with,” that description has 5 constructs.
  2. In contrast, if the description were, “Well, she’s just plain fun to be with,” that description has only 1 construct.

O’Keefe and Delia found that the more “constructs” that a person uses to judge a situation, the more willing they are to reach a decision that is inconsistent with their attitudes.  [“That is not what I would have done, but I can see how someone might do that in this circumstance.”]

The researchers also found that the high construct group was much more apt to insert a negative comment in their description, like, “… highly energetic, (which is sometimes a problem for me), but still, . . .” than the low construct scorers.  The theory is that high scorers can have a good attitude about someone, but still be critical.  Low scorers need to have consistency between their attitude and their behavior and, thus, are less apt to include negative attributes about someone they like.

How can this ever relate to your next jury selection?  Great question (that is two great questions by you today—I’m guessing your are high scorers).  What if your case involved a “situational ethics” question?  What if you needed a jury to understand the “why” behind your client’s apparently questionable behavior for it to seem logical?  If the “why” is crucial, then high construct differentiation scorers are your jurors—people who might be able to make a decision that is different from their own attitude.  On the other hand, you might want jurors who don’t question “why”—people who say “right is right and wrong is wrong” and there is no grey area—those are the low scorers.

Here are some things to consider about this approach within your voir dire:

  • In a focus group, ask the participants to write a description of someone they like on your pre-group questionnaire.  Score those paragraphs like I did above [4 or more constructs is “high”; less than 4 is “low”].  After the group, put the people who voted for plaintiff in one pile, then those who voted for defendant in another pile.  Then, count the number of high and low people who were in each pile and you will see that “X number of high/low voters were in the defendant pile, while Y number were in the plaintiff pile.”  Now you have an important data point for your juror profile.
  • If you didn’t do focus groups [shame on you], then in voir dire ask the panel, “I’d like you to think of someone you like in your life.  How would you describe that person in a few sentences?  I’ll give you a second.  Now, Juror #11, I’ll pick on you first—how would you describe that person?”  As the juror speaks, count the number of characteristics they express AND listen for any negatives they might throw in.
    • If you have the luxury of a Supplemental Jury Questionnaire, lobby to have this as an open-ended question on the form.
  • Now you’ll know if a juror will delve into a grey area or if a juror is more of a black and white thinker.  Whichever you need for your case, you have generated some good data for your challenges.
  • Jurors will find this question fun and non-invasive.  They’ll joke with you about, “Please don’t tell him I said this, but, . . .”
  • You get to explore “situational ethics” without getting into your case facts, which might be delicate/poisoning in this early stage of the trial.
  • Your opposition will see this “test,” but they don’t have the answer key to tell them what the “right” or “wrong” answer is.

Black-and-white versus grey-area thinking is tricky to find directly.  Construct differentiation is one way to pull back the curtain.

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