Combating juror bias.

By understanding jurors' attitudes and decision-making processes, trial lawyers can stem the tide of antiplaintiff bias.

Juror bias has long been the subject of controversy among judges, legal scholars, and trial lawyers. It also has provoked sharp public debate. Eliminating juror bias is indispensable to a fair trial.

In the treason case of Aaron Burr, Chief Justice John Marshall, sitting as trial judge, wrote, "The main reason the jury system is respected is the public expects a juror to be unbiased."(1)

Marshall would likely not be surprised today that special-interest groups, the insurance industry, corporate America, and certain political groups have combined to use any means that are available to create juror bias.

These propagandists have worked hard to create a negative image of plaintiffs, their lawyers, and the civil justice system.

One tort "reform" group boasts that it has been a resource for more than 250 news stories, including an ABC Day One story, "Grief to Greed"; a CBS 48 Hours segment, "See You in Court"; and an Oprah Winfrey Show program, "Has America Gone Lawsuit Crazy?"(2)

Presidential candidate George W. Bush promises to carry the mantle for the propagandists. Recently, Bush had this to say: "Too often, our courts aren't serving people, they are serving lawyers.... Frivolous lawsuits are threatening jobs and delaying access to the courts for those who have legitimate claims."(3)

The goal, the authors would argue, is to firmly embed an antiplaintiff bias in the public psyche. That goal, many would concede, has largely been achieved. Cases are now tried against the backdrop of a constant drumbeat of negative campaigns against plaintiffs, their lawyers, and the justice system.(4)

To make matters worse, in recent years, many high-profile cases have placed the justice system center stage. The combination of these cases and tort propaganda has instilled in the public mind a jaundiced view of the justice system, plaintiffs, and their lawyers.(5) Today, the need to address juror bias has never been more acute.

The Contract with America, the 1994 platform of the Republican Party, called for "commonsense legal reform" as its ninth prong of a 10-point program. This ushered in a frontal assault on the civil justice system and was the culmination of years of effort to bring this issue center stage. The Republican Party vows to keep the issue in the forefront of public debate.

Typical of the propaganda are these comments from the Citizens for a Sound Economy Foundation:

   In recent years ... the tort system has expanded far beyond its purpose.
   Juries award compensation to claimants that are all out of proportion to
   the harm suffered. In certain circumstances, the defendant is ordered to
   pay even if he is not at fault. Thus, the tort reform [sic] system has
   become both a "legal lottery" and a social insurance system. The fact that
   juries often feel sympathetic to a claimant--regardless of whether the
   other party was at fault--encourages frivolous lawsuits to be filed.
   Defendants often find themselves paying to settle these cases to avoid the
   legal expenses of defending against the claim. In addition, a victim is
   often compensated even if the victim's behavior partly caused the accident.
   This violates the idea of individual responsibility and fosters an
   entitlement mentality.

   Who benefits from this system? Lawyers who will file the most ridiculous
   case just to secure a settlement, and those claimants who win the "legal
   lottery." Who pays? Consumers pay in the form of higher prices for products
   and services. Moreover, consumers are deprived of products and services
   that are simply not available because liability insurance is too
   expensive.(6)

This rhetoric is very clever:

* Message one, juries are out of control.

* Message two, the civil justice system is a "legal lottery."

* Message three, plaintiffs claim to be victims. Using the term "victims" is often a code word for "welfare recipients." Use of the phrase "entitlement mentality" is no coincidence and links plaintiffs to welfare. These propagandists understand that public assistance often evokes a visceral emotional response. The link to welfare also elicits images of welfare recipients who are personally responsible for their predicament and therefore are undeserving of help.

* Message four, plaintiffs do not take personal responsibility, thereby violating a powerful cultural norm.

* Message five, the only ones benefitting from the system are "lawyers who file" the cases--plaintiff lawyers.

* Message six, the public is the loser in the system.

These messages are likely the result of focus-group research showing they are persuasive. The authors have repeatedly witnessed focus-group participants using these messages during mock deliberations.(7) This is no accident. The constant drumbeat of propaganda is working.

Two Cornell law professors framed the tort propaganda influence-peddling this way:

   Using every technique of modern media-shaping, tort reform groups sought to
   assure that the public believed that products liability law was the cause
   of this threat to our way of life. The message was carried, and is carried,
   through a variety of media: massive print media advertising campaigns;
   television appearances on the Today Show, Good Morning America, and the
   McNeil-Lehrer News Hour; purchased television time; and reports of surveys
   of business and public opinion.... Many editorials called for tort reform.
   The publicity and lobbying campaigns were so effective that the American
   Bar Association, hoping to prevent more drastic reform measures by state
   legislatures, voted to urge judges to scale down excessive tort awards.

      Even if subsequent analyses suggested other possible causes of the
   insurance crisis, the public's mind has been shaped.... Many reform
   statutes were enacted; many others defeated after vigorous efforts to
   secure enactment. However, products liability reformers apparently
   succeeded in the larger legislature of public opinion, even though they
   failed to secure passage of anywhere near all the legislation they sought.
   Among those apparently influenced were the appellate and district court
   judges who, at least since 1985, have increasingly favored defendants.
   These judges ultimately underlie the quiet revolution.(8)

Tort propagandists also use fear to sell their message, implying that these suits, if allowed to continue, will cost the public a great deal of money. This message is compelling. Imagine trying to persuade jurors with this mind-set. It asks jurors to consider the personal consequences of the verdict. This appeal certainly is improper if made by a party during a trial.

Unfortunately, the media indirectly reinforce the tort propagandists' message. A recent survey found the media overrepresent cases in which plaintiffs win and the amounts awarded.

In fact, a review of coverage of tort litigation in 249 articles in 5 prominent news magazines over a 10-year period found the media reported the plaintiff winning 85 percent of the cases and an average award of almost $6 million.(9) Obviously, these statistics do not represent most tort cases.(10) The tort propagandists, though, want the public to believe they do.

The rhetoric does not stop. Consider this recent newspaper ad, "The All-American Blame Game":

   Whatever happened to good old-fashioned personal responsibility?

      We've now become a society of victims in search of a scapegoat to sue
   whenever anything goes wrong. If you believe what the plaintiffs' lawyers
   tell us, we are a nation with more victims than any other country in the
   world....

      Unfortunately, the Blame Game, while very lucrative for the lawyers,
   costs you and me plenty. The United States civil justice system is the most
   expensive in the world. It not only costs $152 billion annually, but also
   decreases economic productivity and employment. If we Americans continue to
   refuse to accept responsibility for our own actions, we may all have an
   even more serious price to pay.

      Isn't it time we stop letting trial lawyers play the Blame Game at our
   expense?(11)

This passage is a good example of the two attitudes used against plaintiffs that the authors consistently see in focus groups: personal responsibility and antiplaintiff bias.

Personal responsibility

In a recent survey, Americans were asked to rank 15 values in their order of importance. More than 95 percent of those surveyed called personal responsibility "very important." What's more, this is consistent across gender, race, class, and political preference.(12)

The norm of personal responsibility is a part of the fabric of popular culture. Best-selling author Stephen Covey claims it is a foundation of the seven habits of highly effective people.(13) He argues we have the responsibility to make things happen. Responsibility, he maintains, is the ability to choose your response.

Covey claims 10 million copies of his book have been sold. The point is, the norm is widely accepted.

Tort propagandists understand the importance of the norm of personal responsibility. They love to cloak themselves in the aura of the norm. They express outrage toward norm violators at every opportunity. They like to think of the world as rewarding those who are personally responsible and punishing those who are not. Personal responsibility is considered a sign of moral strength.

One spokesperson for conservatives, William J. Bennett, in his best-selling book The Book of Virtues, identifies personal responsibility as a foundation virtue.(14) He points out that to respond is to answer and account for your personal conduct. Irresponsibility, he says, is immature conduct. Taking personal responsibility is a sign of maturity.

The propagandists suggest that if only the plaintiff had acted responsibly, he or she would not have to be asking for a handout from someone who has been virtuous and been rewarded with the fruits of his or her labor. The tort propagandists suggest that plaintiffs are unjustly trying to steal from those who have achieved success through their hard work.

The propagandists want the public to believe that "people get what they deserve" aptly applies to plaintiffs. These propagandists see themselves engaged in a cultural war and use plaintiffs as a means for rallying the troops.

Propagandists want the norm of personal responsibility center stage in every case. If we choose to ignore it, it will come back to haunt us. If we make personal responsibility our message and use it against the defendants, we can recover the moral high ground.

Plaintiffs must make every effort to show that they are personally responsible in family, work, and community. Plaintiffs must show concrete examples of how they have been personally responsible even in the wake of incredible adversity. Only then can we reframe juror perceptions of plaintiffs playing the blame game to that of holding irresponsible defendants personally responsible and making them account for their actions.

Our focus groups have shown that the norm of personal responsibility emerges in every case. Right or wrong, the public is fed up with what appears to be the refusal of people to take responsibility for their own actions. In focus groups, members subscribe to the idea of personal responsibility and harbor the suspicion that people who bring lawsuits do not. If there is a perception that the plaintiff has not been personally responsible, then a preference to impose responsibility on the plaintiff tends to arise.

Thus, if we expect jurors to hold someone accountable, we must first demonstrate that the plaintiff was responsible. We should try our cases with the perspective that jurors apply a higher standard of personal responsibility to the plaintiff than the defendant.

Personal responsibility is a norm that is firmly rooted in the minds of our jurors. We must claim it as our message. This restores to plaintiffs the moral authority that they deserve.

Antiplaintiff bias

The second attitude that is used to the disadvantage of plaintiffs is the antiplaintiff bias. Our focus groups show that frequently jurors unjustifiably find fault with the plaintiff. This attitude even emerges in cases where evidence of contributory negligence is absent.

There is ample empirical data demonstrating an antiplaintiff bias. One survey of actual jurors in tort cases found that about four of five jurors thought that people are too quick to sue rather than try to settle disputes.(15) Only a third of jurors felt that most people who sue have legitimate claims. The survey showed that jurors were suspicious of plaintiffs and their lawyers and that they were not generally suspicious of defendants and did not scrutinize their conduct to the same degree as they scrutinized that of plaintiffs.

Researchers have documented a "blame the victim" effect that naturally occurs in the trial context.(16) Jurors may be inclined to blame the plaintiff to avoid thinking that they may suffer a similar fate. Psychologists have labeled this "defensive attribution." Jurors generally do not consciously appreciate the strong influence their feelings have on their perceptions. In other words, jurors do not recognize their role in construing the plaintiff's conduct. Instead, jurors assume that they are unbiased and that they perceive plaintiffs as they are.

People want to believe they live in a world where good things happen to good people and bad things happen to bad people. The idea that a person has suffered undeservedly is so threatening that people often feel compelled to resort to condemning the injured plaintiff. People want to believe they live in a predictable world over which they have some control.

Moreover, when jurors are confronted with a severely injured plaintiff, they may feel anxious and blame the plaintiff's irresponsible behavior for the discomfort. Therefore, the more severely a plaintiff is injured, the greater the likelihood jurors will engage in defensive attribution or rely on this notion of a "just world."(17)

Also, when jurors imagine facing the same situation the plaintiff faced, they imagine how their "ideal self" would have behaved. Jurors do not ask, "Have I ever acted like that?" Instead they ask, "How would I act if confronted with that situation?" Obviously, it is better if jurors take the former perspective. When judging the plaintiff's conduct, it is preferable if jurors recognize human frailty and realize people do not always act perfectly.

Jurors also may make the "fundamental attribution error."(18) This is the tendency to assume that if someone has suffered an injury, there is someone to blame. For instance, jurors might conclude that a plaintiff who slipped and was injured in a department store was inattentive rather than concluding that the store created an environment to draw the shoppers' attention away from the floor and toward a display. The error occurs because jurors are less inclined to focus on the situation in which the injury occurred than on the person in the situation.

Later, we will discuss how the focus of attention can influence judgment. Suffice it to say now that the trial lawyer's goal is to focus juror attention on the situation rather than the plaintiff and on the defendant rather than the situation.

Defendants frequently use the situation to excuse their conduct. For instance, a defendant may argue that he or she was faced with an emergency and had no choice but to behave in the manner he or she did. In effect, that makes the situation more salient than the defendant. That is why it is imperative to make a defendant decision maker more salient than a situation.

This biasing error has been termed "fundamental," because it is pervasive in judgment. Jurors are unaware of its effect on judgment. This is all the more incentive to understand and use it to the plaintiff's advantage. The authors are convinced, however, that the constant drumbeat of tort propaganda has increased the tendency to concentrate attention on the plaintiff's conduct more than would naturally occur.

We repeatedly see in our focus groups that jurors blame plaintiffs even when there is no evidence offered of contributory negligence. Thus, there is a greater tendency, we postulate, to engage in the fundamental attribution error with plaintiffs than with defendants.

After repeatedly seeing firsthand the effect of the antiplaintiff bias, we began investigating whether we could reduce its impact on juror decision making. Through surveys, focus groups, and analysis of the literature, we identified several biases that trial lawyers must understand in trying cases during an era of tort propaganda. For purposes of this article, we will address three: conformation bias, belief preservation bias, and availability bias.

Confirmation bias

The confirmation bias refers to the tendency of jurors to search for evidence that confirms their beliefs, to critically scrutinize unconfirming evidence, and to interpret ambiguous evidence as consistent with their beliefs. We consistently see jurors accept supportive facts and discount nonsupportive facts. To understand this bias, lawyers must understand the concept of schemas.

People organize their knowledge, beliefs, theories, and expectations in cohesive units called schemas. When people encounter a new experience, they have a cognitive framework for understanding that experience. Schemas influence perception.

Juror schemas, thus, serve as framework for interpreting the evidence. Prototypes are role schemas. They help jurors understand how someone will behave in a given situation. If jurors expect a party to behave in a certain manner and if the party violates those expectations, jurors may feel the party has acted improperly.

Similarly, scripts are event schemas. They help jurors understand how an event should unfold. If events have not occurred in the way jurors expect, they will look for the cause.

During deliberation, jurors are more likely to recall evidence that confirms their schemas.(19) Evidence consistent with juror schemas may be particularly memorable because jurors might pay greater attention to evidence consistent with their beliefs. But jurors are also likely to recall events that are inconsistent with their schemas. Therefore, if the party's conduct conflicts with juror schemas, it is also likely to be memorable during deliberations.

Unfortunately, in conditions of information overload, like most trials, the ability to recall incongruent information might disappear because jurors might not have sufficient cognitive reserves to reconcile the inconsistencies.(20) The goal for the trial lawyer should be to discover how to describe the defendant's conduct in a manner inconsistent with juror schemas and the plaintiff's conduct consistent with them. The trial must make the defendant's conduct vivid so that it is memorable during deliberations.

Every juror will likely have some knowledge, belief, theory, or expectation regarding matters they will hear during a trial. Therefore, it is imperative to discover which schemas jurors will likely use to interpret the evidence. The best way we know to systematically do that is through focus groups. During the focus group, the trial lawyer should pay particular attention to the beliefs, theories, and expectations participants have toward the parties, causation, and damages. It is critical to identify which schemas jurors find important.

Once important schemas are identified, they can be used to tell the trial story. This is important because jurors tend to pay attention to evidence consistent with their schemas. A trial story that strikes a familiar chord is persuasive.

The important point to remember about confirmation bias is that we lawyers should never underestimate the extent to which jurors' prior experiences influence their perception of the evidence. We should also make sure that we identify the schemas that persuasively fit the case. Then, we should tell the story, emphasizing those schemas. A core belief will prevail over evidence that challenges that belief.

Belief perseverance bias

The belief perseverance bias refers to jurors' tendency, once they have adopted a trial story, to cling to it even in the face of conflicting or discrediting evidence.(21) We continually see in our focus groups jurors maintaining their trial story even when we instruct them that evidence to support their position is lacking. The early-adopted trial story is an interpretive framework for understanding subsequent evidence.

We also see repeatedly demonstrated that information that is presented early in a focus group has an inordinate influence on how the evidence is construed and ultimately on how the case is decided. For instance, if we introduce important evidence of the defendant's egregious conduct after jurors adopt a trial story, it seems to have much less impact than if we introduce it early. In contrast, if we present negative evidence after the trial story is adopted, it, too, seems less influential.

What we are finding is that jurors do not continually update the trial story as new evidence is introduced. Instead, new evidence consistent with the trial story tends to strengthen it. Evidence inconsistent with it is more likely to be critically scrutinized. Thus, we know that jurors construct a story that confirms their prior beliefs, the confirmation bias, and that the story perseveres even in the wake of inconsistent evidence, the belief perseverance bias.

Presenting our strong evidence early is imperative. Recently and frequently presented information remains vivid and is more apt to be used for interpreting subsequent evidence. It is well established that priming a person's experience can influence his or her judgment.

Solomon Asch, the eminent social psychologist, demonstrated this point in an experiment that was conducted in 1946.(22) In the study, subjects received the following statements and were then asked to rate the person.

* Steve is intelligent, industrious, impulsive, critical, stubborn, and envious.

* Steve is envious, stubborn, critical, impulsive, industrious, and intelligent.

These two statements contain the same words, simply in reverse order. What Asch found was that Steve was rated more positively when he was described with positive traits first. These findings are of great importance for trial lawyers. The authors have found that the order the evidence is presented can have an immense influence on juror judgment.

Combining the confirmation bias and the belief perseverance bias shows that jurors adopt a trial story early that confirms their beliefs and that this story endures after further evidence is introduced. What the authors have found, and others have convincingly shown, is that even when there is evidence that clearly undermines or discredits the trial story, jurors still tenaciously cling to it. That is why it is essential that jurors adopt a plaintiff's trial story early. The trial story must be seeded during voir dire, told during opening, retold during the evidence, and reinforced during closing argument.

Availability bias

The availability of information can influence perception. People often mistakenly equate the availability of information with frequency, probability, and causality. We propose that whatever most occupies juror attention during the trial will most influence what jurors focus on during deliberations and disproportionately use in rendering a verdict.

A simple rule of thumb is that if the trial is focused on the defendant's conduct, jurors will focus on that conduct in deciding the case. In contrast, if the trial focuses on causation, jurors likely will focus on causation. Likewise, if jurors focus on the plaintiff's conduct during trial, they will focus on the plaintiff during deliberation. That does not mean lawyers can ignore the plaintiff's conduct if it is in issue or that they should not inoculate against defenses. On the contrary, it just means the focus of the case and the jurors' attention should be the defendant's conduct.

Everyone is subject to the availability bias. For example, people often assume that murder is more common than suicide even though it occurs almost 50 percent less often. The reason for this assumption is that it is more widely reported and thus available in memory. When the public is bombarded with information about frivolous lawsuits, people often wrongly assume that such cases are common.

Similarly, the recent study by the National Academy of Sciences showed that as many as 98,000 people die each year from medical negligence in hospitals.(23) That is the equivalent of one jumbo jet crashing every day. If these statistics are correct, then that makes medical negligence the fourth-leading cause of death in this country. Nonetheless, if a jumbo jet crashes, it is front-page news for everyone to see. If somebody dies from medical negligence, that event often receives no media coverage. Thus, because instances of medical negligence are not readily "available" in our memory, jurors often wrongly assume it is uncommon.

The following experiment is a good demonstration of the availability bias.(24) Subjects were told to read the following story:

   Mr. Jones was 47 years old, the father of three, and a successful banking
   executive. His wife has been ill at home for several months.

      On the day of the accident, Mr. Jones left his office at the regular
   time. He sometimes left early to take care of home chores at his wife's
   request, but this was not necessary on that day. Mr. Jones did not drive
   home by his regular route. The day was exceptionally clear, and Mr. Jones
   told his friends in the office that he would drive along the shore to enjoy
   the view.

      The accident occurred at a major intersection. The light turned amber as
   Mr. Jones approached. Witnesses noted that he braked hard to stop at the
   crossing, although Mr. Jones easily could have gone through. His family
   recognized this as a common occurrence in Mr. Jones's driving. As he began
   to cross after the light changed, a light truck charged through the
   intersection at top speed, and rammed Mr. Jones's car from the left. Mr.
   Jones was killed instantly.

      It was later ascertained that the truck was driven by a teenage boy, who
   was under the influence of drugs.

      As commonly happens in such situations, the Jones family and their
   friends often thought and often said "If only ..." during the days that
   followed the accident.

The subjects were then asked, "How did they continue this thought? Please write one or more likely completions."

Only 21 percent of the responses eliminated the drug-crazed driver from the scene. Instead, the subjects focused much more on Mr. Jones's conduct. In fact, a majority of the respondents completed the sentence, "If only Mr. Jones had taken another route."

There are several important lessons from this study. First, changing the focus of attention can change juror perception of the trial story. Second, there are many extraneous facts to this story irrelevant for the jurors' decision. For instance, in the second paragraph, attention is focused on the fact that Mr. Jones "sometimes left early to take care of home chores at his wife's request, but this was not necessary on that day."

When lawyers introduce information, jurors assume it is relevant to their decision making. If we assume that communication comes with a guarantee of relevance, then we must be vigilant in communicating only information necessary to the decision.

We can combine confirmation, belief perseverance, and availability bias in analyzing this story. To begin with, if we were to use a focus group for this particular case, we would want to discover what schemas that the jurors have about teenagers who use drugs.

Undoubtedly, one subject would be the boy's relationship to his parents. Did they know or could they have known about his unlawful behavior? Moreover, jurors will likely want to know how much and what kind of drugs the boy took. Many jurors might not have any prior experience with unlawful drugs, and metaphors describing drugs might be an important area to explore with the focus group. Further, we may want to explore what factors led to the driver high on drugs being in that intersection on that day.

Through focus groups, we can experiment with presenting the evidence in different orders to determine which order is most persuasive. Then, we can tell a story about the teenage driver that confirms beliefs and focuses on his conduct. The result will be that the story will be about the defendant.

Once we identify what evidence jurors find to be important, we can introduce it early in trial and repeat it often. Then, we will be using confirmation bias, belief perseverance bias, and availability bias to our advantage.

Experience: the crucial element

Oliver Wendell Holmes once said, "The life of the law has not been logic; it has been experience."(25)

He is right. It is the jurors' experience that we must understand.

Tort propaganda has made it essential that plaintiff lawyers undertake this investigation. The best way that the authors know to do this is to employ jury focus groups. Only then can plaintiff lawyers begin to use that experience and tell trial stories in a manner that is consistent with juror experience.

Only if we understand the jurors' experience can we give them the tools to protect the public and eradicate the campaign of the powerful and wealthy to limit the rights of the jury.

Notes

(1.) United States v. Burr, 25 F. Cas. 49, 50 (C.C.D. Va. 1807) (No.14, 692g).

(2.) See Citizens Against Lawsuit Abuse, Who We Are (visited Apr. 10, 2000) http://www.calahouston. org/Who.html.

(3.) Scott S. Greenberger, Bush Aims at Federal Tort Reform, AUSTIN AM.-STATESMAN, Feb. 10, 2000, at A7.

(4.) See STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES & THE POLITICS OF REFORM (1995).

(5.) Id.

(6.) See Beverly McKittrick, Tort Reform and the Consumer, available at Citizens for a Sound Economy Foundation, CSEF Backgrounders (visited Apr. 10, 2000) http://www.csef.org/csefhome/tortthre. html.

(7.) In April 1995, the authors cochaired a blue-ribbon committee appointed by former ATLA president Larry Stewart to study juror bias. The authors conducted hundreds of focus groups and drew from their experience as faculty members with seminars on focus groups conducted by ATLA's National College of Advocacy (NCA). The research identified attitudes that negatively influence the way jurors judge plaintiffs' cases.

For more information on ATLA's "Overcoming Juror Bias" seminars, contact the NCA at (800) NCA-1971 or [phone], ext. 612.

(8.) Theodore Eisenberg & James A. Henderson Jr., Inside the Quiet Revolution in Product Liability, 39 UCLA L. REV. 731,793-94 (1992).

(9.) Daniel S. Bailis & Robert J. MacCoun, Estimating Liability Risks with the Media as Your Guide: A Content Analysis of Media Coverage of Tort Litigation, 20 LAW & HUM. BEHAV. 419, 425-26 (1996).

(10.) See ERIK MOLLER, TRENDS IN CIVIL JURY VERDICTS SINCE 1985 (1996).

(11.) D.J. Popeo, The All-American Blame Game, N.Y. TIMES, Dec. 14, 1998.

(12.) Andrew J. Cherlin, I'm O.K., You're Selfish, N.Y. TIMES, Oct. 17, 1999, [sections] 6 at 44.

(13.) STEPHEN R. COVEY, THE SEVEN HABITS OF HIGHLY EFFECTIVE PEOPLE: RESTORING THE CHARACTER ETHIC (1989).

(14.) THE BOOK OF VIRTUES: A TREASURY OF GREAT MORAL STORIES (William J. Bennett ed., 1993).

(15.) Valerie P. Hans, The Contested Role of the Civil Jury in Business Litigation, 79 JUDICATURE 242, 244 (1996).

(16.) Kelly G. Shaver, Defensive Attribution: Effects of Severity and Relevance on the Responsibility Assigned for an Accident, 14 J. PERSONALITY & SOC. PSYCHOL. 101 (1970).

(17.) Melvin J. Lerner & Julie H. Goldberg, When Do Decent People Blame Victims? in DUAL-PROCESS THEORIES IN SOCIAL PSYCHOLOGY 627-40 (Shelly Chaiken & Yaacov E. Trope eds., 1999).

(18.) See generally Lee Ross, The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process, in 10 ADVANCES IN EXPERIMENTAL PSYCHOLOGY 173 (Leonard Berkowitz ed., 1997); LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION: PERSPECTIVES OF SOCIAL PSYCHOLOGY (1991).

(19.) For background information, see RICHARD E. NISBETT & LEE ROSS, HUMAN INFERENCE: STRATEGIES AND SHORTCOMINGS OF SOCIAL JUDGMENT (1980); Lee Ross et al., Perseverance in Self Perception and Social Perception: Biased Attributional Processing in the Debriefing Paradigm, 32 J. PERSONALITY & SOC. PSYCHOL. 880 (1975); Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124 (1974).

(20.) See generally Thomas K. Srull et al., Associative Storage and Retrieval Processes in Person Memory, 11 J. EXPERIMENTAL PSYCHOL.: LEARNING, MEMORY & COGNITION 316 (1985).

(21.) See NISBETT & ROSS, supra note 19, at 167.

(22.) Solomon E. Asch, Forming Impressions of Pesonality, 41 J. ABNORMAL & SOC. PSYCHOL. 258 (1946).

(23.) TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM 26 (National Academy of Sciences ed., 1999).

(24.) See generally Daniel Kahneman & Amos Tversky, The Simulation Heuristic, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 201-08 (Daniel Kahneman et al. eds., 1982).

(25.) OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881).

David A. Wenner is a partner with Snyder & Wenner in Phoenix. Gregory S. Cusimano is a partner with Cusimano, Keener, Roberts & Kimberley in Gadsden, Alabama.