Anticipating Juror Perceptions And The "CSI Effect" In Complex Food-borne Illness Lawsuits
As governmental surveillance improves, and more food-borne illness outbreaks are identified, we find ourselves reporting more often on litigation avoidance and crisis management. In addition to dealing with outbreaks and recalls when they occur, many companies will also be faced with resulting food-borne illness claims. In the lawsuits that follow, it is no secret that a company’s potential liability will depend on the quality of its defense. In addition to offering our litigation library as an industry resource for defending claims through trial, we wanted to discuss what happens when a food poisoning lawsuit actually reaches the jury.
Not long ago, we had the distinct pleasure of working with Tara Trask, president of Tara Trask and Associates, a nationally-recognized trial and jury consulting firm, on a mock food-borne illness case. Over the last 15 years, Trask has gained extensive experience consulting in thousands of lawsuits throughout the country, and during hundreds of “bet-the-company” jury trials. Trask also speaks nationally about juror perceptions and the effect of popular culture (i.e. the “CSI Effect”) on civil juries. As Trask predicted in our exercise, the “CSI Effect” can and will play a significant role in complex food-borne illness lawsuits.
The term “CSI Effect,” as explained by Trask, “describes the phenomenon whereby high-tech, forensic science dramatized in television crime shows can promote unrealistic expectations among jurors of how conclusively forensic evidence determines innocence or guilt, or from the perspective of the civil litigator, causation or liability.” According to Trask, nearly half of potential jurors will list one of the “CSI” productions as their favorite television shows and, as a result, will likely expect detailed forensic science to play a large role in the case. Trask warns further, however, that such jurors may also be prone to “recalibrate the way they consider evidence and, in turn, contemplate the burden of proof.” In these instances, explains Trask, a juror’s “deductive reasoning may be replaced with the need for absolute scientific proof.” Such dangers, she concludes, should always be anticipated and guarded against.
Thus, in an area as scientifically complex as food safety litigation, it is critical for any food liability attorney to fully appreciate the potential role of the “CSI Effect” in the courtroom. Indeed, in any food-borne illness lawsuit, a jury must at the very least be primed to:
While no two food poisoning claims are the same, each of these elements will, at least to some degree, be present in every case. Thus, in addition to simply recognizing that the “CSI Effect” may play a role, an attorney must also appreciate, as he or she prepares for trial, how the phenomenon can impact the jury’s understanding of these foundational elements.
In this regard, although the “CSI Effect” can be used offensively at trial (a topic that will be left for another day), an attorney should always consider the potential impact on juror perceptions if underlying scientific concepts are not clearly explained or properly taught. This is because, as Trask explains, many jurors will expect (based upon their preconceived beliefs from television) that science and forensic testing can and will conclusively solve any dilemma. “They expect DNA sequencers, mass spectrometers, photometric fingerprint illuminators, and scanning electron microscopes.” When such evidence is not present, jurors may question why.
Thus, according to Trask, “the lack of forensic scientific evidence, even if it was simply overlooked, it never existed or is otherwise irrelevant, may in the end cause many jurors to disbelieve a legitimate claim or defense.” For this reason, in addition artfully teaching the science of food safety, a food liability attorney should always: (1) anticipate what scientific or forensic evidence jurors might independently believe “should" be available; and (2) if the evidence is not accessible (or, does not exist), be sure to explain why. Trask also discusses this phenomenon, and proposes various solutions, in a recent article (The “CSI Effect”: Popular Culture’s Effect on Civil Juries) she authored for the ABA Section of Litigation.
In our own food-borne illness mock trial, we watched first-hand as the “CSI Effect” worked into deliberations and, at least in part, shaped the result. As Trask’s jury discussed the case, they focused heavily (as expected) on the scientific evidence presented, assumed independently in some instances (as predicted) that additional forensic evidence “should” be available, and even questioned on occasion (as forewarned) why “missing” evidence was not shared by the attorneys. As advertised and promised, Trask’s mock trial exercise provided incredible insight into juror perceptions and the “CSI Effect” in a complex food-borne illness case.
In addition to specializing in the design and implementation of mock trials and focus groups, Tara Trask and Associates also provides extensive consulting on witness preparation, jury profiles, jury questionnaires, voir dire development and jury selection. At trial, Tara Trask and Associates can even empanel a “shadow jury” to provide additional, real time insight and feed-back.
As demonstrated in our own exercise, Tara Trask and Associates will bring national experience, customized research, qualitative and quantitative methodology, and rigorous analysis to each new matter. We, of course, remain exceedingly impressed by the quality of Trask’s insight, and thank her personally for a job well done.
