Changing order in the court

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Plaintiff, defense attorneys adapting to discoveries in social science research

As fewer cases make it to trial and social-science research undermines old notions of how jurors make decisions, lawyers are finding that they are spending less time in endeavors once deemed essential to their profession.

David Hansher, a Milwaukee County Circuit Court judge with more than 20 years on the bench, said cases had a much better chance 10 to 15 years ago of being brought to trial. According to online records, state courts took on 632 civil jury trials in 2003. By 2014, the number had dwindled to 277.

Milwaukee County Circuit Court Judge Christopher Foley said he thinks that the expense of courtroom battles is part of the reason fewer cases are going to trial. He said he often knows from the beginning that a case can be settled. Yet, it might still take spending $7,000 to $8,000 in discovery before that conclusion can be officially reached.

Expert witnesses are particularly expensive. Foley said he has seen jurors’ eyes fill with incredulity when they find out how much an expert witness is being paid to testify.

“It is so crazily expensive to litigate cases, from my perspective,” he said.

Ann Jacobs, a personal-injury lawyer and president of Wisconsin Association for Justice, a group that mainly represents trial lawyers, echoed Foley.

In another fundamental change, Hansher said, courts can now order parties to attempt mediation before going to trial. Hansher said judges began ordering more mediation, in part, as a way to prevent courtroom proceedings from eating up all their time. In Milwaukee County, Foley said that almost all — about 90 percent — of large claims civil cases are ordered to mediation.

The turn to mediation, which took off in the mid-to-late 90s, has left an profound imprint on the practice of law. Ralph Weber, a lawyer who teaches trial advocacy at Marquette University Law School, cited mediation as the single biggest reason for the decreasing number of jury trials.

“I believe as a result of its effectiveness, people have opted to go with the guidance of a mediator to get a better handle of the risks of going forward,” Weber said. “It’s a risk-reward calculus for both defendant and plaintiff. The most effective mediators play a role in offering an assessment of each side’s strengths and weaknesses as part of a risk-reward analysis.”

Foley agreed that mediation has its benefits.

“It’s less expensive, lets litigants control their own destiny and resolve our disputes in manners that are at least reasonably acceptable,” he said.

Stephen Meyer, a criminal defense lawyer in Madison, said mediation’s close cousin – arbitration – has come to be seen as nearly indispensable in attempts at protecting business interests. Meyer, whose career spans more than 30 years, said company executives nowadays tend to think of juries as something they cannot control and thus should avoid.

Arbiters, with their training in legal matters, are often perceived as being safer bets. The change has given lawyers fewer opportunities to employ the same sorts of arguments and techniques that they would in a courtroom.

To be sure, lawyers play a prominent role in arbitration and mediation proceedings. But, unlike the lawyers of previous generations, they are not building up a reserve of trial experience.

“One of the hardest parts of not going to trial as often is keeping trial skills well-honed,” said Jacobs. “So, you have to be much more diligent in keeping those skills sharp.”

Christopher Stombaugh, a trial lawyer who started his career in Platteville, agreed.

“You have lawyers who are less prepared to try those cases and less equipped to know how ordinary people think about anything,” he said.

Losing touch?

Meyer is concerned that the public might lose touch with the legal system.

“Going back to Plato, we have accepted the notion that if we tried hard enough we can make decisions solely on reason,” Weber said. “The last instruction that jurors get before they deliberate is ‘Free your minds of all sympathy, feelings and bias, and let your verdict speak the truth, whatever the truth may be.’”

But, as it turns out, that’s not how the human mind works.

“You have to start with an appreciation of how humans really make decisions and then build your trial presentation on that reality as opposed to clinging to the myth that we can be solely rational decision-makers,” said Weber.

Mind games

In recent decades, research in neuroscience and behavioral economics have found that it’s impossible to separate reason and emotion, Weber said, and that the cerebral cortex works in tandem with the subconscious to make decisions.

“That raises profound questions for a system of dispute resolution that, on its face, is predicated on a devotion to rationality,” he said.

For example, Jacobs said she was trained as a young lawyer to ask close-ended questions during jury selection. The original notion, she said, was that those sorts of questions forced respondents to commit to a belief and follow it.

That has changed, Jacobs said, under the influence of recent social-science research. Now open-ended questions, with their allowance for free elaboration on various topics, are perceived to be a much better way for lawyers to delve into jurors’ minds and gauge the chances of receiving an impartial hearing.

“There were reasons why certain techniques developed without research,” Jacobs said. “We’re learning some are really effective, and others are best forgotten.”

The recent psychological research has become the foundation for a new firm: Stombaugh, Smith and Co., Towson, Md. The firm, which Stombaugh helped found, is a joint venture among three companies: Smith, Gildea & Schmidt LLC, Next Research LLC and Next Trial Innovation LLC.

Next Research is the company’s research arm and will help develop and test trial techniques. Next Trial specializes in training trial lawyers.

Stombaugh said he has always been interested in cognitive science and understanding how people make decisions. He said he wants to make sure trial lawyers throughout the country can take advantage of  the latest research.

“What we want to do is continue to train lawyers in ways that will help them tell the true story in ways that will be heard,” he said. “And not just heard, but interesting to the hearers because these poor jurors, they’re like prisoners. They have no choice but to be there.”

End goal

The end goal isn’t entertainment or even making sure trial lawyers win more cases.

“What we’re trying to do, why this even matters: it’s the concern that we have in terms of community safety, in terms of juries actually being empowered …” Stombaugh said. “If the lawyers aren’t giving them the tools to do that, we’re going to have a lot of verdicts that disincentivize safety overall.”

Aside from trial techniques, social science research is also affecting lawyers’ reliance on eyewitnesses. Researchers in the past decade, Weber said, have devoted a great deal of time to studying how human memory works — or, in some cases, doesn’t.

“There is this idea that your mind takes a photograph or perhaps takes a video tape and is unchanged over time, and thus eyewitness testimony is accepted as accurate,” he said, “But scientists have found that memory is changed every time it is accessed.”

In one example, the cognitive psychologist Ulric Neisser handed out a questionnaire to 106 students in one of his classes the day after the explosion of the Challenger space shuttle in January 1986. The questionnaire asked the students about a host of matters, including what they were doing when they heard about the explosion and whom they were with.

Two years later, Neisser gave the questionnaire again to the same students and found that their memories had changed greatly. Even more telling, he reported, they expressed greater confidence in their later memories than those they had relayed the day after the explosion.

Only one state has officially acknowledged the ramifications of the research. Since 2012, the New Jersey Supreme Court has instructed state trial courts to inform jurors that eyewitness evidence may not be reliable.

“It’s an example of the courts recognizing, ‘Wait a minute. The way juries work , the way human minds work has been different than what we’ve been assuming … We need to instruct jurors accordingly,’” Weber said.

Not everyone is impressed.

Meyer, who has been practicing law for 36 years, said he is skeptical of the some of the conclusions lawyers have drawn from social-science research. For his part, he said, the latest findings have had no noticeable effect on the ways he goes about being a trial lawyer.