You Don’t Need to Guess at Most Trial Questions, with John Campbell

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Hi, everybody. Welcome to another

episode of Verdict Academy.

For my career,

I've always loved trial and

thought of it as an art with some

science involved.

And in the 30 years plus that

my career has been going here,

I've been trying to introduce

more and more science to my cases.

I think it's very interesting. Well,

our next guest is a leader

in blending rigorous academic

research with real world trial strategy,

which unlocks the secrets

of how and why jurors decide

cases. Please welcome John

Campbell to our podcast.

John is a trial lawyer

and trial scientist.

He was born and raised in

Texas, a little north of Dallas,

back when that was a rural

area. He met his wife, Alicia,

in college. And after they married,

they moved to Missouri where

they both taught high school.

And because that wasn't busy enough,

they decided to go to Knight Law School

while they taught high school. After

John got his law degree, he worked

at the John Simon Law Firm in St.

Louis, as some of you know John as

a pioneer in plaintiff's trial work.

He's a member of Inner Circle,

ABOTA, American College.

When John Campbell was there, he tried

numerous plaintiff cases to verdict.

However, he also joined his wife's

firm, Alicia Campbell Law Firm.

But the teaching bug

never really left John,

so he went on to teach at

University of Denver School of Law,

where he taught law school

basically, and then would fly to St.

Louis and do cases because he

likes to stay busy. Together,

John and Alicia have been lead counsel

in a dozen cases across the country.

John is a pioneer in the area of big data,

which means having three or 400 jurors

study a case and come to a verdict.

John and his wife, Alicia

Campbell, have gone to study over

1,350 civil cases. They studied

more than jurors on anyone on earth.

Over 400,000 jurors.

He's authored multiple peer-reviewed

studies and is co-author of Jury Ball,

which is an easy to read book on what

big data is and how to make it apply to

your cases. John Campbell,

it is my honor and pleasure to have you

be a guest on Verdict Academy. Welcome,

my friend.

Hi, Kevin. Thanks so much for

having me. Congrats on the podcast.

I'm really excited about

this one. I love the format.

Thanks. I appreciate it. As you know,

the format is three trial tips to

offer less experienced trial attorneys,

and we'll do that shortly. But let

me ask you a question generally.

I said what big data is, but

tell us, you're the expert.

What is big data in this context?

Sure. Big data means different things

in different contexts, as you suggested.

If we were in data mining to

figure out what people consume or

what advertisements to show them,

we might be talking about

billions of data points.

But in law where traditional study

of jury behavior was 10 or 12

people in a focus group,

big data is more often three or

400 people looking at a case.

Although we do run studies privately

for attorneys that have gone up to 1,200

jurors and academic studies

that have exceeded 2,000 jurors.

So they're pretty big samples.

And the core idea of doing big

data empirical studies in the

civil setting is that if we show

a true and accurate, distilled,

of course,

case presentation of the plaintiff's

case and defense case to a large enough

sample of people in a way that they

can process it and pay attention,

and we make sure they're doing that,

we can learn a lot of things about what's

likely to occur in that case and why

they're occurring. We can learn a lot

about what types of people respond

differently to that case, either more

favorably for the plaintiff or less.

And we can also do things like

experimental manipulations

where different groups

of people see different

versions of that case,

whether we alter evidence or a

damage ask or a jury instruction.

And because we have big samples,

we can know with some certainty

whether that variable when changed

made a difference. And so with that,

we can infuse a lot more precision into

understanding what's likely to occur

in cases, what is the best strategy for

the attorney who's studying the case,

and why jurors are doing what they're

doing. That's it in a nutshell.

Got it. And so when I was starting out,

when I got into introducing

science into the art of trial,

I would do some focus groups,

meaning I would have 12 or

25 people listen to a case,

we'd present the plaintiff's

side, the defense side,

show them evidence and argue it,

and they'd deliberate for an hour

or two hours of the verdict form.

And after five hours or eight hours,

whatever it was, you get 12, 24,

36 jurors of their opinions. I'm sure

you've done those as well early on.

And so that was super

helpful. I love them.

I still do them under

certain circumstances, but

my jury consultant tell me,

"Hey,

these are not predictive of results in

cases because the sample size is too

small. They're helpful because

they'll identify issues,

they'll help you hone your themes,

but they're not predictive."

So my understanding, John,

is that big data helps

move it a little more to the predictive

side where if you study three or 400

people with a rigorous vetting of who

these people are and making sure they

actually pay attention, the outcome,

the results of these data is much more

predictive for the lawyers. Is that

accurate?

That's exactly right. I mean,

essentially you're solving a couple

of problems if you do larger sample

empirical studies well. The first

is the small numbers problem,

which we all know intuitively

whether you're a statistician or not.

You can imagine if you flip a coin 10

times, you could get heads eight times.

That's not because the probability

of getting heads is 80%,

it's because it was a small

sample. If we flipped it 300 times,

we might get 51% or 49%, but we

would not get 80% in a true coin.

So we solve the problem

with a larger sample.

That's what we're doing with

more people. The second part,

which you touched on too,

is that when all of us do

in- person focus groups,

they're beyond the small sample issue,

there's also the issue that there are

real challenges in evenly weighting that

and making sure that no one knows

who's doing that study and making sure

everyone is paying attention and making

sure that people feel comfortable

sharing candid responses when they've

only known each other for an hour or two

in a room. And so most of us who've

ever done that on our own cases know

sometimes what you end up with is three

people talking a lot and nine people

sitting very quietly and you trying

to coach information out of them.

What we've learned over time is online

studies can be rigorously built.

We can pilot them and make sure that

people can't guess who sponsored them.

People are more candid

online. In our case,

we use Cornell professors to build

our studies and analyze our data,

which means that even if I was putting

my thumb on the scale unintentionally,

they're likely to notice it. And so

I think really the empirical method,

big data studies solves

the small number problem,

but over time we've also realized it

solves some of the stimulus problem to put

it in statistical or study terms. It

means that we show a better stimulus,

a better case presentation. We control

better what the jurors are thinking about

that.

And then we also get a more

candid response from the

people who then take that

study.

Amazing. I'm just fascinated

by this topic. Well,

let's move to the meat of

the podcast. As you know,

we like to give three top

tips for trial lawyers.

And because you've got so much experience

in studying jury behavior and you're a

trial lawyer yourself, you bring

unique perspective to this.

So the three things I think you

want to talk about are credibility,

personality, and stereotypes.

So let's start with one,

credibility. Talk to us about

credibility in trial, John.

Sure.

Credibility is an interesting topic to

me because it is sort of a double edged

sword. We all know that as

lawyers, when we walk into court,

at least with some subset of jurors,

we are not perceived as credible.

We're lawyers,

all the lawyer jokes and lawyers a

liar and all these things are in jurors

heads. So I see that as an opportunity.

I think it was a Shakespearean play

in which they said the sunshine's

brighter after a cloudy day.

And so I say to lawyers, look,

you don't start with a lot

of credibility currency,

but you can earn it throughout the case

by being credible. This isn't a show,

this isn't a dance, but if you

are credible in jury selection,

if you are credible in opening

statement, if your experts are credible,

if your life care plan is credible,

if your positions are credible,

if you don't attack the

plaintiff or defendant,

depending on what side you're

on, unnecessarily or unfairly,

if you concede the things you should, by

the end, you could have jurors saying,

"This attorney and this

case is really credible." I

feel like they've been really

straight with me. And if that happens,

that credibility currency sort of

infuses and matters in all the closed

calls in the case. And so to me,

I'm always worried if an attorney,

a plaintiff's attorney, for example,

says to me, "Oh, I love it.

I've got $120 million life care

plan." And when I look at it,

80% of the stuff that's in that life

care plan is stuff the plaintiff isn't

getting and hasn't had for five

years and probably doesn't need.

And they're like, "Yeah,

but it's a big number." Because what

we know is jurors are sophisticated and

they're careful and they're smart

and they will look at that thing and

especially when the defense

tears it apart, they'll say,

"You're not being honest with me. " Well,

that attorney's just done what the jurors

expected, damaged their credibility.

And so the result is when they talk to

the jury about things like damages or

fault,

the jury is less likely to take them

seriously. They view that attorney as then

negotiating with them,

probably spinning it.

And so it's interesting to

me that when we study cases,

we measure the win rate and fault

and damages and all sorts of things.

We have thousands of

measures in many studies,

but the one that I often look at

is when we ask jurors to rate how

credible the plaintiff

and defense case are,

if we see that the plaintiff is

only as credible as the defense or

less, that is a red flag

for me that the plaintiff,

regardless of when rate is in danger,

because of course the plaintiff

has the burden of proof.

And if the plaintiff is putting on a

case that is no more credible than the

defense's position, the

plaintiff usually has a problem.

And if the defense is more

credible than the plaintiff,

we've never seen a plaintiff verdict.

So to me, for young lawyers,

there's this idea you should fight every

point, sell every idea, never give in.

I would say that's not true at

all. I would say take reasonable,

honest positions. If you have a

24 year old who's been hurt badly,

but their mind is good,

don't say they can never work again and

model their damages for lost wages for

the rest of their life. People

know people work in wheelchairs,

people know people work with back pain.

How about you model their damages,

what's realistic, which is they might

have some diminished capacity to work.

They might miss some days,

they might lose some jobs.

There's some jobs they can't get.

You'll give up a little on economic

damages as a plaintiff's lawyer,

but you'll get it back five fold in

credibility and that currency will run

throughout the case.

So young lawyer tip one would be avoid

this idea you must fight everything and

that your job since it's adversarial to

take the most extreme positions for your

client. It hurts your client to do so.

There's room in court to be candid,

honest, and clear, and

jurors will reward that.

It's so fascinating to me because I was

always taught early on that the three

most important things in trial are

credibility, credibility and credibility.

And you've studied that. So

how does a big data study,

which does not show any videos of the

lawyers, the jurors in trial, right?

You think to see how we drink

water, how we treat people,

how we treat our staff, how we treat

the clerk, that's important, right?

And there's none of that

in a big data study.

How the heck does a big data juror know

that someone's credible or not by the

arguments, by the evidence?

Yeah, it's the positions taken. So I mean,

think of a few things that could

happen. A plaintiff's lawyer comes in,

their client has grossly missed you. Let's

say that they were driving a car. No,

let's say they were using

an ATV. They were drunk,

they were driving too fast,

and then they come in and say,

"This ATV is defective.

It doesn't break right,

or the roof doesn't work

right," or whatever.

And so the defendant's liable for making

a bad product. And they never once say,

"Well, my client was also

driving too fast and drinking,

and he or she can and does accept

whatever responsibility you

believe they have. You have a right to

give them fault. And in fact, folks,

I'm here to tell you you should." Now,

that would be a credible position. Well,

that's not the attorney's personality.

That's a position taken in the case,

which we'll see in the presentation.

We talked about the life care plan.

I mentioned lost wages,

modeling lost wages where a person who

never went to college is suddenly going

to be a doctor and they lost 50 years of

income as a medical doctor and you give

the jurors no other options and the jury

thinks maybe they would've done that,

but it sure would've helped me to see

a range of possible lost earnings.

All these sorts of things,

the factual positions are often what

impacts credibility most because the

lawyer can seem very honest and sincere,

and they can use all sorts

of words about candor,

but if their case isn't candid,

jurors will look at the facts and say,

"This case overall, not

the attorney in particular,

this case over at all is not credible."

And that's toxic on either side.

Yeah, 100% agree with that. And

as a practicing trial lawyer,

I can tell you that when I stand up and

accept responsibility for something I

need to accept responsibly for it,

literally you can feel it

take the air out of the room.

The anger goes down like five notches.

"Oh, he's admitting the obvious.

Why are we here? "Well, we're here

because they don't accept. And so, okay,

I don't have to deal with this,

right? It's amazing. You feel it.

Yeah. Well, and you change the

terrain of deliberation too,

because another thing I talk to

about young lawyers is, look,

where are the jurors

going to spend their time?

If there's a fight about whether

your client has comparative fault,

and when we study it, we see that 70%

of people believe your client does.

If you walk into court and

say your client doesn't,

you take a position that we know now,

seven out of 10 people will disagree with,

guess what deliberation's about?

It's about why you didn't accept it and

whether your client has fault and the

jury spends three hours on comparative.

Well, for a plaintiff's attorney,

the jury spending most of its time

talking about your client's fault isn't a

good place to start because it's going

to bleed over into liability and damages.

And so I also think of it as when

you're credible about issues,

you remove that issue from the work the

jury does and you let them get to the

things you want them working on.

Yeah. Fascinating. All right.

Point two, personality.

Talk to us about what personality matters,

how it affects jury decision making.

Again, in the context of you studying

so much data where the

lawyer's personality isn't

injected in those studies.

Go ahead, please.

Yeah. The headline here is

for young lawyers is that

personality, meaning the

lawyer's personality,

is a very small explanatory variable.

Meaning if we look at all the things

that impact outcome in a case,

the personality of the lawyer is one

of the smallest explanatory pieces.

Doesn't mean it has no importance,

but that importance is very small

compared to things like strength of

evidence, right? Which across all

studies, private and academic,

is the primary predictor of

case outcome as it should be.

We don't actually want jurors to decide

cases on whether or not the lawyer was

funny or good looking or charming

or had a deep voice or whatever,

right? That's not actually what

we want jurors deciding cases on.

And here's the good news.

Across every academic study ever

looking at this and across our own,

jurors don't do that.

They decide cases based on the facts.

So what does that mean for

a young lawyer?

It means you need to be competent

in the rules of evidence.

You need to be organized and prepared.

You need to get the evidence

in that matters to your case.

Are you going to lose the case because

you said a few times because you

couldn't find the document on the podium

a couple of times and had to spend 30

seconds looking for it? No.

Are you going to lose the case because

the other side really was eloquent and

kind of funny and you're

a little plain? No.

The answer is no. And I can tell

you that we know this in a few ways,

very briefly. One,

we study cases for lawyers all over

the country and I know most of them

personally, like I know you, Kevin,

and many other good

lawyers across the country,

they all have really different

personalities. I mean,

if you look at sort of trial

stars across the country,

there are people who are flamboyant,

there are people who are

sort of quiet and reserved.

There are people who are sort

of big and calm and confident,

but not particularly eloquent

and everything in between.

Many, many of those plaintiff's lawyers,

those are who I work with as

great defense lawyers too,

have wonderful verdicts for their clients,

but they don't do it the same way.

What they all have in common,

because I get to work with them is,

what they have in common is that

they prepare, think through evidence,

litigate carefully to get the

evidence, file good motions in limine,

get their witnesses there on

time, prepare those witnesses,

all those sorts of things. And we

many of which have gone to trial,

the ability to predict what the likely

outcome has not been dependent on who the

lawyer was. We have been able

to predict outcomes accurately

regardless of attorney personality

and without studying it,

which confirms for us over time what

the literature was telling us that

personality is not a

primary driving factor. Now,

I don't like to overstate things.

So it is absolutely true that if a case

is a coin toss and it's really tight

and the jury ends up thinking

the plaintiff's attorney

was credible and likable

and their client is credible and likable.

It could matter in parts of the

brain that process information.

Nobody's saying it doesn't matter at

all, but in the grand scheme of things,

it is a very small percentage of sort

of how we explain what juries do.

Fascinating.

I think this is so important for less

experienced attorneys because you

really, you have to be yourself.

And when you're yourself,

you can't play lawyer man or lawyer woman

or model yourself after whoever your

hero is. That never works.

You're always a poor copy of somebody

else. And there's so many people that say,

"You know what? This person's successful.

I'm going to copy his or her methods.

I'm going to be like him or her."

I tried that a couple of times.

It does not work because

you can't pull it off.

You got to be you and what you're

comfortable in your own skin and you

understand that you, as ineloquent

as you may be or whatever it is,

as long as you work your tail off, know

the evidence and care about that client,

you're going to have as good a result

as anybody else in that case. And that's

such a great takeaway and it's great

words of encouragement for younger folks

who are afraid to get in

the courtroom try cases.

Absolutely. Kevin, I would just give

you one example of like not a person.

Maybe it's examples.

I can tell you that we have a number of

cases with lawyers you've never heard of

with varying ranges of comfortableness

in courtrooms who worked up the case

carefully, prepared like

crazy, got everything ready,

studied the case multiple times, knew

what jurors needed, wanted, got lost on,

could be confused by,

took credible positions,

and then went in and tried that case.

In some cases I was in the courtroom,

I've seen it on CVN, I've read the

transcripts. They weren't always pretty.

It wasn't always eloquent.

And they got good verdicts for their

client in line with the data because

ultimately they put the evidence in

front of the jurors. And jurors, again,

don't go back in deliberation and say,

"I don't think the

plaintiff proved their case,

and I don't think they're

as heard as they say,

but the lawyer is so

funny." It doesn't happen.

Yeah. Fascinating. Okay.

Third tip you want to share

with our folks stereotypes.

Tell me about stereotypes, John.

Yeah. When I'm thinking of stereotypes,

there's lots of ways we

could talk about that,

but I'm thinking about the sort of

idea of stereotypes in jury selection

because depending on where you were

trying cases as a young lawyer,

you were probably taught different wives

tales or sort of myths of what kind of

jurors you want.

And I think one of the most common is

defense attorneys believe they want

conservative jurors and

plaintiff attorneys-.

Politically, politically conservative.

Politically conservative jurors and

plaintiff's attorneys want liberal,

politically liberal jurors. Is

that true sometimes? Absolutely.

Is that true in every case we study? Not

even close. When we study these cases,

much like political polling,

after we have everybody vote and we know

who wins and loses and the percentages,

we can look backward and ask a

simple statistical question, "Hey,

did any traits of people

predict how they would vote in a

statistically significant way?" And we

could know if different age groups vote

differently or different political

stripes or different income levels or

whatever. And we look at

political orientation,

both as registered Republican, registered

Democrat, Green Party, whatever,

and self-identified, I'm a self-identified

conservative fiscally or socially.

And we ask those things.

And in many, many cases,

it has no predictive value at all.

There are cases in which it does,

but what's interesting is

that every once in a while,

even if you were to say on average,

sometimes politically conservative

people are slightly less valuable to a

plaintiff's case than a liberal juror,

every few cases it'll invert and

it could invert because the case

plaintiff identity changes.

You can imagine a plaintiff

that through the course

of trial,

jurors will begin to decide

is very conservative for

any number of reasons that

could come in or they decide or they

recognize that the plaintiff is a police

officer or a soldier or

whatever. In those settings,

we can see the traditional predictors

of good and bad jurors for plaintiff and

defense invert. And so to me,

it's been a good reminder

that people are complex,

that these sort of stereotypical

rule of thumb heuristics

that we use to think of people

break down. I will also,

I'll flag,

the academic literature and our own

studies confirm too that the ideas that

race, the race of people might predict

how they vote is simply untrue.

The idea that gender is some sort

of common predictor is untrue.

Doesn't mean those things couldn't mean

something in some study or some case.

There's academic literature where

men and women have acted differently,

for example, but it is

not true across cases.

They act differently in the same

ways. And it is true in many cases,

they don't act differently at all.

And so my last sort of tip for a young

lawyer who's trying cases would be

put that stuff aside, treat

jurors as individuals,

as complex individuals,

ask general questions about their

views of the legal system if allowed,

and ask specific questions about their

views of the parties and issues in your

case.

That will tell you far more about

whether there is some deep seated feeling

or bias that could prejudice your client.

Since most jury selection

is de- selection,

you're really looking for the people

that hold some view deeply enough that

maybe they won't be able to

hear the evidence for your side.

You'll learn a lot more talking to them

about the system and their views on

lawsuits and their views in

your particular case than

you'll ever learn relying

on these sort of heuristic views

about demographic characteristics.

Yeah. Let me amplify on that if I can.

And I can because it's my own podcast.

Demographics I've been told by jury

consultants is basically garbage.

I do tend to overstate

things to make a point.

So I love the fact that you don't,

so you can always hold me in check.

But generally, you walk into court,

Republicans or Democrats or

African Americans or white,

and that's kind of a determinating

factor where you're going to lean, right?

Not at all. It's always about

life experiences and attitudes.

Let me give you a little example.

I'm old enough to remember the O.J.

Simpson criminal trial that was

tried down in Los Angeles and

downtown Los Angeles.

And much of that jury,

I can't remember how many

was African-American.

And so when OJ was found not guilty,

many people in the trial sphere said,

"Oh, this is a race thing." Well,

when you actually studied that jury,

what you found is that most of the

jurors had bad experiences with

LAPD. They did not trust LAPD.

So at the end of the day,

that was a case where we had people

with life experiences didn't trust the

police and were open to a theory that

maybe the police manufactured evidence

because their own life

experience backed that up.

Absolutely. I love that example. It's one

of my favorite, and it's true. I mean,

look, along with Valerie Hans

at Cornell and Lee Ross at.

Stanford- Spell her last name if people-.

Yeah, it's H-A-N-S. Valerie Hans is

a wonderful person, a good friend,

and I think the most prolific

jury researcher currently

in the academic world.

Jessica Salerno, who just went to Cornell,

who's also a friend and a wonderful

jury researcher, Lee Ross,

who was at Stanford and was just a

social scientist, but a brilliant one,

not specifically specific to the law.

I had the opportunity to publish with

jurors and what we were looking for is

how do you predict bias in jury behavior?

And what we found was is that these

demographic characteristics had almost

no predictive value.

What had predictive value was general

views about lawsuits and the court system,

because of course if you spent 20 years

saying that lawsuits are evil and wrong

and ruin the world, that will

influence your view of civil lawsuits.

And if you've spent 20 years saying,

"I hate companies and I want everybody

who sues them to win," that will also

influence your view. And then

specific questions about the case.

So if it's a medical

malpractice case, asking jurors,

"Have you ever had a doctor save your

life or the life of a loved one?" If they

say yes, they'll often tell you,

"And I can't imagine returning a verdict

against a doctor because I just think

what they do is too important." Well,

that's an honest statement by a juror

and that might mean they have a deeply

held belief that doesn't make them

right for that case. That's okay.

That's a lot better than

finding out they're a woman

or they're black or they're

rich or they're whatever.

Yeah, 100%. John, I could

talk to you all day long.

I just am fascinated by this

stuff. Before I let you go,

any final words of wisdom to our

audience that you want to share?

Well, I mean, this is a self-serving

thing, so I'll admit it,

but I will tell you,

I'm really happy to be talking with

you because I think as a young lawyer,

the way we made decisions about

who to pick for selection,

how much to ask for in damages or whether

to pose a response if you're a defense

attorney to damages,

which order of witnesses or whether

our client was credible or not,

or whether we should accept fault or

not, was something that we workshopped,

we maybe did a focus group,

we walked down the hall and

talked to another lawyer,

we batted around with our family,

and those were good things.

But I do think we're in

a place now where we can,

instead of guessing for those things,

we can know that those are actually

empirical questions with answers.

And I'm encouraged by that because I

think the justice system gets better when

both sides make better decisions

for their client and cases are

decided on the best evidence we can put

in front of jurors in the best way we

can.

So if you're a young lawyer,

I would say find ways to continue to hone

the craft of being a lawyer because it

matters. Continue to learn how to get

evidence in and all the rules of evidence,

continue to think about how you visually

present things so that people retain

them and learn them,

but also maybe build into your toolkit

the idea that we don't need to guess

at most questions and cases that

we can through a variety of ways,

not just dealing with me,

lots of ways infuse some science into

our decision making and in doing so,

represent our client at

the highest level possible.

Fantastic. And trial, in my view,

is always going to be an art,

but thank you, John Campbell,

for bringing more ...

More science into our

profession. John Campbell,

thank you for being a guest on Verdict

Academy. Really appreciate you.

Thanks for having me. I really enjoyed it.

Thank you for listening

to Verdict Academy.

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