JUROR DECISION-MAKING BIASES IN

TRADE SECRET LITIGATION

Daniel Cooperi

LitStrat, Inc.

I. The World of Secrets – an Introduction

The world of secrets: It fascinates us; is the stuff of great novels and ofmindless TV; and, of course, has been, and by every indication will remain,the subject of some very contentious fights in both personal and businessrelationships.

Wisdom abounds about how best to keep a secret:

“Whoever wishes to keep a secret must hide the fact that he possessesone.”

Johann Wolfgang von Goethe (German Playwright, Poet, Novelist, andDramatist. 1749-1832)

“If you would keep your secret from an enemy, tell it not to a friend.”Benjamin Franklin (American Statesman, Scientist, Philosopher, andInventor. 1706-1790)

Keeping secrets has never been easy and one could make a reasonableargument that in our ever-advancing technological world there is less andless privacy, fewer and fewer secrets, and a diminishing ability to ‘keep tooneself’ information and knowledge. Today the magic of the Coca Colaelixir is as likely to appear in a recipe blog as behind a secured vault inAtlanta. And, even when one holds a new, non-public insight orinnovation, given the speed of discovery, how long can you really expectto keep it your own?

These are interesting issues but ones reaching far beyond the limits of thisessay. But, even in the context of trade secret litigation, it is important tokeep in mind that jurors do not come to a trade secret trial as a blank slatewhen it comes to defining a secret, keeping a secret, the value of a secret,and the relationship between and among those who are eager to have anduse the ‘secret’ knowledge at issue.

In his book Incognito, The Secret Lives of the Brain, neuroscientistDavid Eagelman writes: “The main thing known about secrets is thatkeeping them is unhealthy for the brain.” Eagelman at 145. To keep a

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secret is hard work and creates conflict and unrest for an individual. Daresay, we each have experienced this phenomena and it is fair to assumethat each juror on your trade secret panel has also dealt with the personalinternal pressure of keeping a secret and / or the hurt to others resultingfrom the disclosure of a secret.

Although these juror experiences have more often taken place in personalrelationships and not in the commercial context, jurors, nonetheless, bringthis personal experience with their own secrets to trade secret litigation.

Jurors use their own experiences in their understanding and evaluation ofthe actions of the ‘secret teller’ applying their personal feelings about thekeeping/telling of secrets. Have their own experiences taught them, forexample, to be understanding or critical of secret tellers and of those whoreceive secrets; what has experience taught them about what makes asecret important and what expectations do they have about keepingsecrets; how do they feel about the reasons/explanations/excuses used toreveal a confidence; what value do they place in keeping secrets; andwhat are their own views and experiences regarding the telling of secrets –have they been hurt or hurt someone else, when a secret was revealed?

In short, the disclosure or theft of secrets, honoring or breachingconfidences, are very human dramas and jurors often come to theirunderstanding and assessment of fault in a particular trade secret disputethrough the story of the people and relationships that culminated in thedisclosure and use of information. The development of the story of thesecret, the theme that anchors it, and the moral that you hope the jurorswill derive from it that presents a compelling challenge to trade secret triallawyers.

Before turning to this challenge of creating story, theme and moral, intrade secret cases, I would like to explore, in a bit more depth, some of therecent teachings regarding juror biases. I’ll then turn back to the value oftelling an effective thematic story for addressing juror decision-makingbiases.

II. The Myth of Juror Impartialityii

Typically, when the issue of juror bias is raised, it is in the context ofattitudinal bias. Juror partiality whether driven by race, religion, or genderraise significant concerns as do biases resulting from strongly held social,political, or economic views. These juror preloads are extremely importantand deserve the thought and attention they receive in the literature and attrial. But there is another set of biases or partialities that have atremendous impact on how a juror sees and feels a case.

This second group of biases -- sometimes referred to as the ‘habits of the

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mind’ or ‘modes of thought’ ‘heuristics’ or decision-making processes –relate to the mental lenses through which a juror will see and process theinformation received at trial. And, while our judicial system is premised onthe notion that the more impulsive modes of thought should give way tothe more deliberate evidence and law based modes of thought in an effortto reach the ‘best’ decision, the separation of feeling and thought is not arealistic objective.

Reason is not a substitute for intuition but more often a vehicle for givingus comfort and credibility in our impulsive reactions, impressions, andfeelings. As that famous jury consultant Benjamin Franklin observed: “Soconvenient a thing it is to be a reasonable creature, since it enables one tofind or make a reason for everything one has a mind to do.” BenjaminFranklin, The Autobiography of Benjamin Franklin, 34 (1793).

The subjective lenses through which we each view new people, situations,problems, questions, and challenges cannot be turned off or tuned out.Their impact is faster than the more deliberate mind can stop. But, theycan be better understood and, with that better understanding, embracedand utilized more effectively. Rather than view these biases asimpediments to effective decision-making, they need to be betterappreciated. From this appreciation comes an improved understanding ofhow to empower the mind’s more deliberate partner when its help isneeded.

In his study of decision-making, Jonah Lehrer traced some of the evolvingunderstanding of the relationship between reason and intuition:

One of the first scientists to defend this view ofdecision-making was William James, the great AmericanPsychologist. In his seminal 1890 textbook, The Principles ofPsychology, James launched into a critique of the standard‘rationalist’ account of the human mind. ‘The facts of thecase are really tolerably plain,’ James wrote. ‘Man has a fargreater variety of impulses than any other lower animal.’ Inother words, the Platonic view of decision-making, whichidealized man as a purely rational animal defined ‘by thealmost total absence of instincts,’ was utterly mistaken.James’ real insight, however, was that these impulsesweren’t necessarily bad influences. In fact, he believed that‘the preponderance of habits, instincts and emotions’ in thehuman brain was an essential part of what made the brainso effective. According to James, the mind contained twodistinct thinking systems, one that was rational anddeliberate, and, another that was quick, effortless, andemotional. The key to making decisions, James said, was

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knowing when to rely on which system.

How We Decide, Jonah Lehrer at 26-27. James’ assumption that the twosystems can function independently and that there is a choice that onecan and should make to apply the appropriate system to the particulardecision one is facing seems unrealistic. While we might value the inputfrom one system more than the other, depending on the problem ordecision, each system influences the other and, it would seem, that theimpulsive brain always gets the first shot.

Appreciating, rather than denying, the influence of emotion and intuition isa wise route, as Lehrer argues:

W[e can now] begin to understand the surprising wisdom ofour emotions. The activity of our dopamine neuronsdemonstrates that feelings aren’t simply reflections ofhard-wired animal instincts. Those wild horses aren’t actingon a whim. Instead, human emotions are rooted in thepredictions of highly flexible brain cells, which are constantlyadjusting their connections to reflect reality. Every time youmake a mistake or encounter something new, your braincells are busy changing themselves. Our emotions aredeeply empirical. Lehrer at 41.

The interaction of emotion/impulse/intuition withreason/deliberation/empiricism helps us better understand why and howjurors make decisions. In his seminal work on the mind’s decision-makingprocesses, Daniel Kahneman summarizes his approach and focus:

The distinction between fast and slow thinking has beenexplored by many psychologists over the last twenty-fiveyears. For reasons that I explain more fully in the nextchapter, I describe mental life by the metaphor of twoagents, called System 1 and System 2, which respectivelyproduce fast and slow thinking. I speak of the features ofintuitive and deliberate thought, as if they were traits anddispositions of two characters in your mind. In the picturethat emerges from recent research, the intuitive System 1is more influential than your experience tells you, and it isthe secret author of many of the choices and judgmentsyou make. Thinking Fast and Slow, Daniel Kahneman at13.

The ‘secret author’ that Kahneman references writes in many forms –whether you call them habits of the mind, biases, mental heuristics, orpartialities. They are pre-existing tendencies that influence how

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information is processed and decisions are made. The ‘secret author’residing in System 1 is characterized by thinking habits or processingpreferences; in short, biases.

SEVEN JUROR DECISION MAKING BIASES

1. Diagnosis Bias

Diagnosis bias involves the power of labels. As soon as we label, tag, orcharacterize a person or situation, our mind filters new information toavoid evidence that contradicts the initial diagnosis. As an example,researchers reported that the variable most responsible for an NBAplayer’s time on the court—above and beyond a player’s actualperformance, injuries, or trade status—was his draft selection order. Evenafter controlling for all other factors in a given season every incrementdecreased playing time as much as 25 minutes, and it continued all theway through a player’s fifth year in the NBA. Sway, Ori Brafman & RomBrafman at 69.

Diagnosis bias can take hold quickly and arise from a single word orphrase. Another example is the different reaction that MIT economicsstudents gave to a speaker depending on a small change in theintroduction of the substitute professor from “very warm” to “rather cold”:

This one word, “warm” or “cold”—albeit irrelevantin the larger scheme of things—made studentsassign a high or low value to the professor. Likethe NBA teams with the draft order, once thestudents read the substitute’s bio, their opinions ofhim were set.

In other words, a single word had the power to alterour whole perception of another person andpossibly sour the relationship, before it evenbegins. When we hear a description of someone,no matter how brief, it inevitably shapes ourexperience of that person. Brafman and Brafman at73.

The bias can also arise from the first impression gained from a picture andhave a lasting effect on the credibility of the subject. For example, JosephHallinan reports on research that indicated that the assessment of thecompetence of politicians occurred within one second of being exposed toa picture of their face. Why We Make Mistakes, Joseph T. Hallinan at45.

The importance of first impressions and their lasting impact is not news.

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Your mother, no doubt, told you that you only get to make one firstimpression.. The defense, unfortunately, does not get to make a true firstimpression. In addition to the preloads about the defendant (e.g., distrustof big corporations), the defense must recognize that the jurors haveformed impressions based on what they have seen from the court and theplaintiff. Indeed, as Kahneman, points out: “Bad impressions and badstereotypes are quicker to form and more resistant to disconfirmationthan good ones.” Kahneman at 302.

How then to mitigate the biases that have already affected jurors becauseof what they have heard and seen from others? It is a daunting task butone that needs to be approached with awareness, not naïve denial.

Juries are asked to “keep an open mind” all the time, but that is easiersaid than done. As the diagnosis bias makes clear, jurors often will makesnap judgments that leave a lasting impression. The Brafmans write thatthe remedy to this bias is to “remain flexible and examine things fromdifferent perspectives” and to “be comfortable with complex andsometimes contradictory information.” Brafman at 178.

But how can you help a juror do this when the juror has likely alreadymade their snap judgment before the defense attorney has made anopening statement? Address it head on. Acknowledge the negativeimpression the plaintiff left during opening statements and explain whythe jurors should not be wary of it. Remind the jurors that the plaintiff hastheir own motivation to persuade them and that they are trying to makethem have a negative impression of the defendant. Find ways toencourage the jury to reanalyze their first impression from the plaintiff.This at least will lay a foundation for the jurors to open their minds andideally create a degree of skepticism. Your respect for the jurors, the hardwork ahead of them, and your role to place them in a position to followthe evidence and the law often sets up a useful competing image to thatcreated by plaintiff’s counsel.

Another way to attempt to mitigate diagnosis bias is to identify, duringjury selection, those potential jurors who are less comfortable withcontradictory information or seem to have already made snap judgmentsabout the case during voir dire. That jurors have biases is not theproblem, the problem arises when that bias is so strong and influentialthat it taints significantly all that follows. Exploring juror experiences toget a measure of the strength—how unshakeable—of the bias may be auseful way to use some of your voir dire time in venues where there is avoir dire opportunity.

Much has also been written about the usefulness of more extensivepreliminary instructions by the court. Consideration should be given toproviding preliminary instructions that go beyond the standard boilerplate

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instructions and have the court introduce the parties in a more expansiveway in the court’s initial remarks.

Whether more expansive preliminary instructions are useful or harmful isobviously dependent on what and how they are delivered. Judgmentsabout the judge, the practice in the venue, and the keys to your case, aresome of the factors that should be considered. At a minimum, draft a setof preliminary instructions as part of your trial preparation to see if thereis a chance of pre-empting the ‘first impression’ so useful to the plaintiff.

2. Negativity Bias

Negativity bias refers to the power of bad news over good news. AsKahneman observes, “[t]he brain of humans and other animals contain amechanism that is designed to give priority to bad news. … threats areprivileged above opportunities[.]” Kahneman at 301. Lehrer explains that“[t]here’s no rational reason for us to treat gains and losses orcompliments and criticisms so differently. But we do.” Lehrer at 81.

Negativity bias can be seen in marital relations, where it generally takesfive or more positive comments to overcome one criticism. And, asobserved by the psychologist Paul Rozin, “a single cockroach willcompletely wreck the appeal of a bowl of cherries, but a cherry will donothing at all for a bowl of cockroaches.” Kahneman at 302.

Because “bad information is processed more thoroughly than good,” onecan readily see how building the negative case defining a person orcompany is perceived differently from the description of the positivecharacter and conduct of that same company. Kahneman at 302.

When defending large corporations, a handful of “bad” e-mails can loomlarge, and plaintiff’s counsel can use negativity bias to cast a pall over thecompany. For defense counsel, it is tempting to try and explain awayevery such e-mail, but that can be counterproductive. Most jurorsunderstand the concept of “cherry-picking”—that is, that a plaintiffattorney can select a handful of e-mails to make a company look badwhen the majority of documents show a careful, thoughtful organization.So, if possible, begin by pointing out the ease of cherry-picking, and howthe plaintiff’s counsel has not told the jury the whole story. Considershowing the jurors a number of positive e-mails or other documents todemonstrate how the company acted correctly. This is not to seek ‘credit’– remember the five-to-one ratio – companies are expected to do the rightthing and don’t get points for doing so. But, instead, it is more of achallenge to the credibility of the plaintiff’s narrative.

One further note of caution, company witnesses cannot, each timeconfronted with a bad document or bad testimony from a colleague, reply

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“but you are taking it out of context.” While that may be very true, thecredibility and usefulness of the answer diminishes each time it is used.The reality is that people in companies sometimes say and do imprudentthings and, at times, acknowledging some problems rather than denyingthem may give credibility to other aspects of your case.

3. Loss Aversion Bias

Loss aversion bias refers to the natural human tendency to weigh lossesmore heavily than potential gains. According to Kahneman:

Loss aversion refers to the relative strength of twomotives: we are driven more strongly to avoid lossesthan to achieve gains. A reference point is sometimesthe status quo, but it can also be a goal in the future:not achieving a goal is a loss, exceeding the goal is again. As we might expect from negativity dominance,the two motives are not equally powerful. The aversionto the failure of not reaching the goal is much strongerthan the desire to exceed it.

The economists Devin Pope and Maurice Schweitzer, atthe University of Pennsylvania, reasoned that golfprovides a perfect example of reference point: par.Every hole on the golf course has a number of strokesassociated with it; the par number provides the baselinefor good-but not outstanding-performance. For aprofessional golfer, a birdie (one stroke under par) is again, and a bogey (one stroke over par) is a loss. Theeconomists compared two situations a player might facewhen near the hole:

• putt to avoid bogey

• putt to achieve a birdie

Every stroke counts in golf and, in professional golfevery stroke counts a lot. According to prospect theory,however, some strokes count more than others. Failingto make par is a loss, but missing a birdie putt is aforegone gain, not a loss. Pope and Schweitzerreasoned from loss aversion that players would try alittle harder when putting for par (to avoid bogey) thanwhen putting for birdie. They analyzed more than 2.5million putts in exquisite detail to test the prediction.

They were right. Whether the putt was easy or hard, at

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every distance from the hole, the players were moresuccessful when putting for par than for a birdie.Kahneman at 302-304.

How do you make your case closer to avoiding “bogies” than to “puttingfor birdie”? For the plaintiff in a trade secret case, it might be to framethe case in terms of avoiding further deterioration of things of utmostimportance – trust, secrecy, innovation, loyalty, fair competition. For thedefense, the question becomes not whether to frame the case in terms ofloss aversion but what loss to suggest jurors work to avoid – unfairrestraint on employees’ mobility, taking credit for work that is not yours,harm to competition, price inflation.

Managing the loss aversion bias is a variation of the oft-heard adviceabout jurors – you must consider the WIIFM (what’s in it for me) issues.Whether conscious or not, many jurors assess cases with an eye or ear onWIIFM. Loss aversion teaches that typically jurors apply this idea as: whatmight be lost, rather than what might be gained. So, think WLIIFM—whatloss is in it for me—as the new principle.

4. Certainty Bias

Certainty bias refers to the natural human tendency to avoid internaldiscord or dissonance. Debate among and between different areas of thebrain is time consuming, hard work, and does not feel particularly good.In contrast, “[i]t feels good to be certain. Confidence is comforting.”Lehrer at 210.

Because of our preference for certainty, our minds work to avoid internaldebate. Partisan voters and pundits, according to Drew Western, apsychologist from Emory University, do not use reason to analyze factsbut, instead use reason to preserve their partisan certainty. Westernstates: “Essentially, it appears as if partisans twirl the cognitivekaleidoscope until they get the conclusions they want, and then they getmassively reinforced for it, with the elimination of negative emotionalstates and activation of positive ones.” Lehrer at 205.

Our quest for the comfort of certainty causes us to manipulate and selectinformation that supports that certainty and to marginalize or disregardinformation that challenges or undermines our certainty. Of course, if thecertainty bias works for your case, playing to it makes sense. Indeed,plaintiff trial lawyers are often reminded that ‘ambiguity’ is the friend ofthe defendant and that their challenge is to bring clarity and simplicity totheir presentations.

Defense trial attorneys recognize that ambiguity frustrates jurors. Invitingambiguity is an approach wrought with danger both as to content and

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credibility. So it is not confusion that becomes the objective, but criticalthinking. How then, at least for the defense, can counsel engage jurors incritical thinking, to have them challenge themselves and their fellowjurors with evidence that may not be consistent with strong presetbeliefs?

As pointed out by Lehrer: “[t]he only way to counteract the bias forcertainty is to encourage some inner dissonance. We must forceourselves to think about the information we don’t want to think about, topay attention to the data that disturbs our entrenched beliefs.” Lehrer at217. Counsel can try to overcome the certainty bias by respecting andrecognizing the tough job and hard work that the jurors are being askedto perform. Trial counsel cannot simply put the responsibility on jurors tolook at all the evidence and not only that evidence that provides themwith an easy answer. Decision makers will take the easier route to makedecisions and replace hard questions with softer ones. So how do youempower and encourage jurors to do the work, to make the effort, toinvite the internal and external dissonance they want to avoid so much?

One approach is to see your role and that of your witnesses as guides andteachers rather than as advocates. This is not to say that your case lacksadvocacy or persuasion, but rather that an aspect of your case and thetestimony of your experts are to teach them how to solve the problembefore them. Rather then simply providing opinions, conclusions, andargument, jurors need to also receive insights into how an expert arrivedat their decision. Your job, and that of your expert, is to engage and armjurors to participate in an internal conversation with themselves and in anexternal conversation with jurors who may have a different view. You areasking a lot of jurors and you must recognize and respect the effort yourequest and provide the tools for them to work through the dissonanceyou have now imposed. Only then will the jury be in a position to engagein the deliberative process required to overcome the certainty bias.

5. Hindsight Bias

“Hindsight bias predicts that jurors will overestimate the foreseeability ofthe accident and tend to hold the injurer liable for not foreseeing that hisor her conduct would lead to harm.” Neal Feigenson, Legal Blame: HowJurors Think and Talk about Accidents, 53 (2001). We simply seethings differently, once we know what happened—the invention becomesobvious, the accident becomes foreseeable, the non-disclosure becomescritical, when we know the consequences. Instructing jurors not to useinformation that they feel provides important insights to theirunderstanding of why and how something occurred is not generallyeffective. Loren H. Brown, Daniel J. Cooper, et al., “Tackling HindsightBias in Failure to Warn Cases,” For the Defense, (Oct. 2010).

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From failure-to-warn to patent trials, from securities cases to partnershipdisputes, the impact of hindsight on juror’s decision-making is very real.How to get jurors to compare the value of hindsight with the value ofcontemporaneous evidence in reaching their conclusions about ‘whatreally happened’ in a given case is another problem whose solutiondepends on early assessment and evidence development, not on aninstruction or plea to disregard its influence.

6. Anchors, Primes, Frames, and Links/Associations

The importance and impact of anchors, primes, frames, links andassociations on learning and decision-making cannot be overstated.These concepts and the challenges they present to trial lawyers shouldalways be close at hand in any discussion of juror decision-making biases:

Different ways of presenting the same informationoften evoke different emotions. The statementthat ‘the odds of survival one month after surgeryare 90%’ is more reassuring than the equivalentstatement that ‘mortality within one month ofsurgery is 10%.’ Similarly, cold cuts described‘90% fat free’ are more attractive than when theyare described as ‘10% fat.’ The equivalence of thealternative formulations is transparent, but anindividual normally sees only one formulation, andwhat she sees is all there is. Kahneman at 88.

As discussed with respect to negativity bias and loss aversion bias, howan issue is framed is a fundamental driver of juror decision-making. Howare you framing the choice or how are you presenting the challenge to thejurors? And, when is that challenge revealed to and explored with them?While the verdict questions and legal instructions may provide thetechnical “frame” for juror decision-making, the actual frame that thejurors will apply is one that is set out in the opening. Linking the moreintuitive appealing frame with the more deliberate frame of the verdictquestions is an important goal for an effective trial strategy.

The anchoring effect is important to both liability and damages issues.The effect of mentioning large numbers is not lost on the plaintiff’s trialcounsel. Time and time again, in written and oral voir dire, plaintifflawyers will ask jurors if they have a cap on the damages they wouldaward and if they could award damages of millions of dollars, if theevidence supported such an award. When challenged about the proprietyof such questions, counsel often argues that a belief in a cap is adisqualifying bias. But, the questions do much more than that—thesequestions about large compensatory damages and punitive damages

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during voir dire help the plaintiff to anchor jurors on high numbers. If youhave any doubt that even the unrelated or random mentioning of anumber can have a profound influence on decision-making, consider thefollowing report from Kahneman:

German judges, with an average of more than fifteenyears of experience on the bench, first read adescription of a woman who had been caughtshoplifting, then rolled a pair of dice that were loaded soevery roll resulted in either a 3 or a 9. As soon as thedice came to a stop, the judges were asked whetherthey would sentence the woman to a term in prisongreater or lesser, in months, than the number showingon the dice. Finally, the judges were instructed tospecify the exact prison sentence they would give theshoplifter. On average, those who had rolled a 9 saidthey would sentence her to 8 months; those who rolleda 3 said they would sentence her to 5 months; theanchoring effect was 50%. Kahneman at 125-26.

If judges with more than fifteen years of experience are susceptible toanchoring, then without question a jury would be just as likely, if not morelikely, to the same anchoring bias. The question then becomes howdefense counsel can address this anchoring problem.

The challenge of whether and how to provide an alternative anchor regarding the amount of damages is often a very tough decision for defense counsel. Many jurors take the mere mention of a number by the defense as a concession of liability. But, leaving a plaintiff’s anchor (this company had revenues exceeding 1 billion, yes, that’s a billion a year) unopposed creates this well-established bias. If the choice is to offer an alternative, even an alternative of zero, than the anchor may best be provided early and explained often during the trial, rather than late in the game. Damages, especially punitive damages, may need more of an alternative anchoring and critique, than can be waged at the end of a longtrial.

7. Information Overload, Selective Learning, Laziness,Reconstructive Memory

The concepts of information overload, selective learning, laziness, andreconstructive memory also play an important role in jurordecision-making. Meeting the challenges posed by the impulsive,intuitive, and emotional part of the brain (System 1) is a significant task.In addition, the deliberate, rational part of the brain (System 2) brings itsown preloads to the decision-making table, including preferences for

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cognitive ease; limitations on how much it can hear; biases regardingwhat it selects or chooses to remember; and thereconstruction/reinterpretation of information rather than the literalreporting of information.

For the trial lawyer to communicate effectively with System 2, thecommunication must take into account the character and capabilities ofthat mechanism and its strengths and weaknesses. Saying that areasoned approach to the evidence leads to the conclusion you seek isbut a preliminary step towards presenting a case that appeals to the jurorwho is willing to engage in “thinking slow.”

Even if jurors—from the most analytic to the most impulsive—were stateof the art information processors, complex trials would still overload themwith more information than they could handle. And none of us is a stateof the art deliberation machine:

This cortical flaw has been exacerbated by modernity.We live in a culture that’s awash in information; it’s theage of Google, cable news, and free onlineencyclopedias. We get anxious whenever we are cut offfrom all this knowledge, as if it’s impossible for anyoneto make a decision without a search engine. But thisabundance comes with hidden costs. The main problemis that the human brain wasn’t designed to deal withsuch a surfeit of data. As a result, we are constantlyexceeding the capacity of our prefrontal cortices, feedingthem more facts and figures than they can handle. It’slike trying to run a new computer program on an oldmachine; the antique microchips try to keep up, buteventually they fizzle out. Lehrer at 158.

Asking jurors to exceed ‘the capacity of their prefrontal cortices’ is acommon flaw in many complex trials. This is not the fault of the jurors.Great craftsmen do not blame their tools, great teachers do not blametheir students, and great trial lawyers do not shift their communicationand teaching responsibilities to jurors. The case must be presented wellbut what you say is not enough. The case must be heard, remembered,and repeated (in deliberations). Too much, obtuse, unrepeatable, orout-of-context information does not compute.

The choices you make about what and how much information you areasking jurors to use is a pre-requisite for the effective appeal to thedeliberate mind:

As a psychologist, George Miller demonstrated in hisfamous essay “The Magical Number Seven, Plus or

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Minus Two,” the conscious brain can only handle aboutseven pieces of data at any one moment. “There seemsto be some limitation built into us by the design of ournervous systems, a limit that keeps our channelcapacities in this general range,” Miller wrote. While wecan control these rational neural circuits-they thinkabout what we tell them to think about-they constitute arelatively small part of the brain, just a few microchipswithin the vast mainframe of the mind. As a result,even choices that seem straightforward -like choosing ajam in the supermarket-can overwhelm the prefrontalcortex. It gets intimidated by all the jam data. Andthat’s when bad decisions are made. Lehrer at 150.

In deciding what, how and how much to present to jurors, thecharacteristics of the decision-making apparatus need to be respected.Particularly important is recognizing that the deliberate mind seems to be:(1) influenced by context; (2) lazy; and (3) undisciplined and selective.

To overcome these tendencies, it is important to avoid falling into easytraps that hurt your credibility. These include items as simple as speakingtone and organization of thought. Audiences view speakers with higherpitched voices as being less truthful, less emphatic, less potent, and morenervous than speakers with lower-pitched voices, and expressive speechwith a minimum of noticeable pauses (“uh” and “um”) boosts credibilityand enhances the impression of intelligence. Leonard Mlodinow,Subliminal: How Your Unconscious Mind Rules Your Behavior(2012).

Context also is an essential influence on how we think and decide and onwhat and how we learn and remember. Trial presentations (both bylawyers and witnesses), too often mistakenly consist of stacking facts,announcing conclusions, and making arguments. Appreciating that jurorswork backwards (from result to reasons) and build from emotion todeliberation is fundamental and should guide trial lawyers in building astrategy and trial presentation that fits more closely the model ofdecision-making emerging today.

The laziness of System 2, the deliberate decider, is described byKahneman who explains: “If there are several ways of achieving the samegoal, people will eventually gravitate to the least demanding course ofaction. In the economy of action, effort is a cost, and the acquisition ofskill is driven by the balance of benefits and costs. Laziness is built deepinto our nature.” Kahneman at 35.

Further, calling on the deliberate mind is a demand for effort, disciplined

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thinking and self-control. Kahneman at 40. Given this limited budget, thelawyer asking for the expenditure must give good reasons for the requestand show respect for the effort he is asking.

In addition, even when engaged, the deliberate decider will look for theeasier route to a resolution:

However, a lazy System 2 often follows the path of leasteffort and endorses a heuristic answer without muchscrutiny of whether it is truly appropriate. You will not bestumped, you will not have to work very hard, and youmay not even notice that you did not answer the questionyou were asked. Furthermore, you may not realize thatthe target question was difficult, because an intuitiveanswer to it came readily to mind. Kahneman at 99.

In light of this preference to answer the easier, heuristic question insteadof, or at least ahead of, the more challenging target question, it isimportant to see how your case can be built around such questions. It isalso worth noting that when soliciting information from jurors during voirdire, it is easier for them to answer “heuristic questions”—questions abouthow they feel at the moment—than the tougher, normative and predictivequestions.

Unfortunately, many cases, especially from the defense perspective, donot have a ready and appealing emotional question and answer. Indeed,more often, defense counsel is asking jurors to place their emotions to theside and the trial lawyer is faced with the problem of not only presentinga tougher question (that jurors will revise on their own in a way that maynot be helpful) but of also asking jurors to engage in two-step deliberativethinking (if a and if b, then c) when they have a preference for theapproach that allows them to answer the easier question and to do so inone step.

How to avoid the substitution that Kahneman predicts and encouragejurors to address the harder question is no easy task. At a minimum, itrequires the lawyer to be upfront about and respectful of the effort he isasking. Both in voir dire and in the opening, a plea not to substitute and areason why substitutions can be dangerous seems to be a usefulconsideration. Simply asking jurors to follow the court’s instruction to putsympathy and bias aside should be understood for what it is: A magicalelixir, no better than snake oil, for curing the underlying problem.

III. Addressing Juror Decision Making Biases in Trade Secret Litigation

Much has been written about the difficulties of trying technical cases,

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especially IP cases to jurors. Many have offered insights into how to better communicate complex scientific, financial, economic and similar highly technical issues in the courtroom. See, for example, “Teaching Science to Jurors: Ten Challenges to Effective Communication of Technical Issues by You and Your Witnesses,” Daniel Cooper, Trial by Jury - 2011 (PLI).

IP cases do indeed often present enormous teaching challenges for attorneys and witnesses. One cannot lose sight of the importance of effectively communicating relevant technical information. But before being able to engage, let alone instruct and persuade jurors about the difficult technical matters, counsel needs to develop a compelling thematic story of the case.

It is the story form that seems best suited for tackling many of the decision-making biases identified above. As Richard Waites explained in his article entitled “Judge, Juror and Arbitrator Perceptions in TradeSecret And Copyright Infringement Cases” @ the advocates.com:

All courtroom decision makers, no matter how educated and sophisticated they are, believe that at the heart of every complex situation is a simple story waiting to be discovered…. They believe that the meaning of the case, its essence, lies in the human story at the core of the case.” Waites at 4.

Indeed, the notion that judges and jurors decide complex IP cases differently is challenged by Waites’ finding that in Federal Court copyrightcases both judges and jurors side with the plaintiff about 72% of the time.Waites at 4.

Whether judge or jury, the trier of fact is likely to be motivated by the understanding of the underlying personal dynamics – what went on between and among the individuals, what were the crucial relationships, and why did people act the way they did. The essential truth in a case is found first by the trier of fact in his/her feelings about the story rather than in the underlying information and facts. Or, as Lehrer suggested: “The emotional brain generates the verdict…the rational brain explains the verdict.”

It is the human story that appeals to the so-called emotional brain and thepackaging of the data (the facts, the information, the evidence, and the law) in the context of the story and its themes that give the so-called rational brain the support it needs to explain/rationalize the more impulsive conclusions.

The utility of stories to engage, equip, and motivate jurors to hear, decide and discuss the case in a way favorable to you has been the subject of

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numerous books and articles regarding effective communication. For example, Jim Perdue detailed in his book “Winning with Stories” why stories are effective vehicles for courtroom persuasion. At page 17 of his book, he noted that stories are effective because:

• Most people are more deeply influenced by a vivid personal experience than by statistical data;

• Stories involve the listener;

• Stories are consistent with the way most people organize and store information;

• People are less afraid of learning a series of events than a list of concepts and data;

• Stories create a visual image;

• Stories are suspenseful;

• Stories empower the speaker;

• Stories are fun;

• Stories can be relaxing.

As Perdue goes on to explain: “A trial is a competition of stories. The conflicting facts, opinions, and scientific principles are part of the opposing stories. Trial advocates must first persuade the listener to adopta narrative. Then they must empower the jury to act on it.” Perdue at 90.

Among the important components of an interesting and empowering storyis the theme or themes – the often-implicit chorus – that anchors the plot. Perdue notes that: “….the case theme is the unifying image, idea, or concept each person uses to remind himself what the story is all about…..Every case will have a theme in the mind of each juror, whether counsel offers one or not.” Perdue at 91.

There is a difference between a stories theme and its moral. While there is overlap, themes tend to be descriptive – for example, this story is aboutpersonal responsibility, fair competition, betrayal; and, morals tend to be prescriptive -- for example, listening to this case, it is clear that people should be held accountable, real secrets deserve to be protected. In literature, stories are often built around affirmative themes like love, compassion, loyalty, charity, honesty, and friendship or around the more negative concepts of hate, selfishness, greed, apathy, and betrayal.

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Similarly, case themes can be found in core values. In the context of trade secret cases, this can present a challenge to the defense for at leasttwo reasons: first, plaintiff goes first and, as discussed above the power ofprimacy is enormous. Whatever theme the plaintiff chooses for its story, it becomes difficult for the defense to re-set. Moreover, the plaintiff has a compelling list of potential core concepts in copyright and trade secret litigation including: Dishonesty, copying, theft, disloyalty, self-promotion/ambition, and unfair competition.

It is not surprising, given the power of these core values, that Waites’ found that in copyright cases both judges and jurors side with the plaintiffabout 72% of the time. The defense needs to work to find equally compelling values; not an easy assignment. Of course, the defense can base its story on the ‘not’ or denial side – no theft, no disloyalty, no unfairness, no dishonesty or deceit.

Two places for the defense to look for a theme of its own are: a) back at the plaintiff and its conduct -- protecting real secrets, stifling employee growth, seeking credit unfairly; self inflicted wounds, and or to b) the material itself – discovery, availability, worth.

Whatever the plaintiff or defense theme and however challenging it is to develop it, the theme and the story that carries it, at their best also teach the jurors an important lesson. The moral of the story is the lesson drawn from it. So, while love may be a theme, love your neighbor is a lesson/moral.

So, to expand a bit on Perdue’s description of a trial as a competition between stories, a trade secret trial is often a competition between the stories, themes and lessons. The decision-making biases of jurors require that trial counsel spends the time it takes to go beyond the assembly and presentation of decision-making data (case facts, opinions, and law) and craft a thematic human drama that yields a compelling lesson.

We have found that in copyright and trade secret cases, one of the challenges of crafting such a story is that it needs to address certain questions. Obviously, for every case there is a case specific story. And, the stories the opposing sides develop are typically very different in manyrespects including the time line (when and how does the story start), the central characters (is the story about the plaintiff, the defendant, employees, customers, the secret itself) and the motivations (the reasons why what was done when and how it was done). However, trade secret cases with very different underlying facts often raise similar questions in the minds and hearts of jurors.

We have found during mock deliberations on trade secret cases involving such alleged secrets as computer code, software programs, mechanical

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innovations to pipes, business plans and strategies and customer lists, that jurors are eager to understand the fundamentals of the relationship between the parties and the relationship between each party and the purported secret. And, they search for an understanding of ‘what really isa trade secret.”

Legal instructions and expert opinions do not resolve this fundamental question of what makes certain information/knowledge a secret for many jurors. The context of the case (the story of the information/knowledge atissue) and the juror’s own experiences are more often the source. A thematic story can be your best vehicle for providing the answers jurors feel a need to have answered.

In crafting your story, it is important to consider whether and how you canbest address questions that seem to almost invariably arise in deliberations. In this regard, it is important to keep in mind that jurors tend to fill in any important gaps in a story with ‘facts’ that will help them reach the conclusion they favor and that the credibility of a story will be measured in part by how consistent or conflicted it is with the juror’s own experience and story.

Typical among the questions that jurors raise in deliberations are questions with respect to:

• What makes information/knowledge a secret?

• The history of the alleged secret: where did it come from originally, why, how and when was it created, who was the creator, what made it valuable and how was it valued, how was it treated, what lead to itsdisclosure, and what advantage was lost/gained because it became available to others?

• The relationship of the alleged thief to the purported secret: was he acreator, how did he treat it, and what had he agreed to with respectto its secrecy?

• The relationship of the new users to the secret: how did they get it, why did they want it, what good did it do them, what would have happened if they never got it?

• The relationship of competitors: what brought them into contact; what brought them into conflict, how does the purported secret alter their relationship?

• The relationship of the competitors to the marketplace: how does thesecret affect the marketplace, especially consumers?

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• The employees and how they are affected: who are the people who are actually being accused of the theft, what were they doing and why?

In developing your story, it can be useful to think ahead to the deliberations. Consider the dialogue that might take place between a plaintiff juror and a defense juror. It is often the case that each will try to explain what they feel ‘really went on here.”

Listen to that dialogue and consider it a strategic target – what story can you present that will engage, persuade, and motivate your juror to participate in the ‘what really happened here’ dialogue in the way most favorable to the outcome you seek. What story provides the answers to the jurors’ questions?

By helping jurors to address their challenges, you are more likely to persuade and motivate them to speak for your case during deliberations. As that great New York philosopher Yogi Berra once said: “If you don’t know where you are going, you’ll wind up somewhere else.”

IV. The World of Secrets – Conclusion

The world of secrets is by its very nature the world of unknowns, conflictsand confrontations. This is true of the world of trade secrets and jurorsbring both personal experience with secrets and questions about this veryspecific realm of secrets with them to trial.

An appreciation for these preloads, an awareness of the decision-makingprocesses that bias the way jurors hear and think about the issues, and arecognition of the fundamental questions that jurors ask about theinformation, the people, and the relationships at the center of the caseshould help counsel prepare a case that jurors will hear and with whichthey are more likely to align.

END NOTES:

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iDaniel Cooper is the President of LitStrat Inc., a jury consulting firm with offices inNew York and Miami. For more than sixteen years, while at LitStrat, he has worked on hundreds of jury and bench trials. The cases have generally involved complex civil claims in the areas of intellectual property, antitrust, securities, employment, products liability, professional malpractice, fraud, insurance and commercial contract. Mr. Cooper is a graduate of Brown University, Harvard University's Graduate School of Education, and Columbia University's School of Law. For more information see the Company’s website at: www.litstrat.com

ii Much of the material in this section is taken from an article I recently wrote with Loren Brown, Christopher Campbell and Edwin Cortes entitled: The Myth of Juror Impartiality: Practical Strategies for Minimizing Juror Bias (PLI, Trial by Jury 2012, November 2012)