BEWARE OF THE UNKNOWNS IN YOUR STORY
At the time of this blog, it’s been nearly two weeks since Malaysia Airlines Flight 370 went missing, and the attention paid to this story has grown exponentially over this period of time. I, like most people, find the mystery of what happened fascinating. Major news networks are running constant coverage and new theories are reported, blogged, and tweeted about everyday. The reaction people are having to this story, and the ensuing speculation about what really happened, is similar to something we often see in pre-trial research.
When litigation is filled with gaps or unknowns, which neither side can explain with evidence, jurors work tirelessly to make sense of the story, occasionally with wild speculation and employing a host of biases. In fact, we find that a great amount of the time spent in deliberations will be focused on whatever the mystery issue is. This is due to the fact that many jurors have a basic psychological need for closure.
I say “many jurors” because not everyone has a strong need for closure. Research has shown that this is a fairly stable trait that is measured using a questionnaire, with each individual landing somewhere on the continuum from low to high need for closure. Those on the high end may be the ones more invested and interested in the Flight 370 story, for instance. In deliberations, these are the jurors who speculate most about unknowns and even invent new evidence in order to make sense of the unknowns. Those low on the need for closure spectrum accept, or at least are less affected by, the unknowns and take little effort to explain them.
In litigation, sometimes a mystery works in your favor, and sometimes it works against you; sometimes the mystery is germane, and sometimes it has very little to do with the issues and claims of the case. However, a tangential mystery to you may become a central mystery to the jury, especially if they have a high need for closure. If there is a significant gap in your story or the events of your case, consider whether it helps or hurts you. If it helps, make it a focal issue and let the jury speculate. If it hurts, you can either attempt to “fill the gap” for your jurors by offering an explanation through a story that “makes sense” to the jury, or take care during jury selection to weed out more of those who have a high need for closure.
Playing off some of the questionnaire items (linked above) during voir dire (“How many of you would say that you prefer routine and order, over unpredictability, in your everyday life?” or “Who here tends to make decisions quickly, rather than spend a lot of time weighing the pros and cons of all the different options?”) can help you find the people with a high need for closure.