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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 13, 2023

Recently, Hulk Hogan was awarded $140 million against Gawker for posting a private video of him on their website without his permission. This trial received extensive media coverage and the jurors have offered interviews giving insight into their decision-making, which, as trial consultants, we find fascinating. I was struck by a few jurors’ comments in particular. These jurors noted that the behavior of the defendant’s individual witnesses on the stand and in depositions was indicative of their actions in the case. Specifically, they said of Gawker’s editor-in-chief, “He was very arrogant, very pompous,” and “He treated the deposition the way he treats journalism.”

We often hear comments along these lines from jurors and shadow jurors. To paraphrase one juror we spoke to after an employment trial: “He seemed disinterested in being at court every day. That made us think he was probably not a very conscientious employee.” There is a tendency for jurors to evaluate the prior actions of a witness or a party in a case based on how they present at trial. The Gawker editor seemed flippant during his deposition, and to the jurors that was an indicator of how he approached his job.

Whether a person’s behavior is consistent across situations is a topic that has long been debated by psychologists. Some psychologists believe behavior does not vary greatly in different situations. For instance, a shy person at work is likely to be shy at home and in social situations. Others, however, recognize that situations can and do influence behavior. A person may be shy in novel social situations, but extroverted when they are with close friends. Jurors, it seems, tend to fall in the former camp, and they judge witnesses and others at trial and attribute those observed behaviors to other situations.

In trials, we find that jurors do not simply watch and judge a person while they’re on the stand (although certainly that is where the bulk of the assessing is done). Jurors are also evaluating the character of the parties and witnesses in other situations – while they are at counsel table, in the hallways, in the gallery, and even outside of the courthouse. If a doctor is accused of negligent medical care, jurors will watch the doctor at court and look for evidence of their attitude toward others. Are they respectful of the courtroom and the other party? Are they engaged and focused on the testimony? Do they appear to care about the process? If the answer is not a resounding yes, jurors will use this to infer that their approach to medicine may be similarly careless.

The accuracy of these judgments may be lacking, but the effects can be extremely powerful. We spoke to one juror after trial who said that her decision was made when, near the end of trial, she saw the defendant CEO laughing in the hallway shortly after the plaintiff had testified. The CEO may or may not have been laughing at the plaintiff, but the temporal relationship between the plaintiff’s emotional testimony and his laughter gave this particular juror pause and made her question his character to the point that it altered how she felt about the case as a whole.

While this example may be extreme, we do hear jurors and shadow jurors make judgments about the facts of a case based on the behavior and attitude of the people involved during trial. Whether it’s supported by research or not, jurors typically believe that personality and behavior is cross-situationally consistent. Everyone involved in a trial (witnesses, lawyers, paralegals, etc.) need to understand that their behavior in the courtroom will be used by jurors to infer their behavior in other situations.


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