In this era of “fake news,” alleged Russian influence in elections and increasingly polarized political views, it is becoming more and more difficult for people to determine what “the truth” really is.

According to a recent Axios/SurveyMonkey poll, 72 percent of respondents believe traditional news outlets “knowingly report false or misleading stories at least sometimes” (among Republicans and Republican-leaning independents, this number was an astounding 92 percent).

And of course, we have never had more access to information (and disinformation, according to many) – further confusing the picture of who and what to trust.  When even longstanding, established facts are suddenly viewed as “facts,” at a certain point some people start to question everything around them.  In this confusing and uncertain environment, perhaps it’s unsurprising (but no less disturbing) that in 2018 there is an actual debate about whether vaccines are beneficial and whether the world is flat or round – everything must be questioned now.

A growing mistrust of large institutions only makes things worse – especially among millennials.  In 2016, Ernst & Young and the Economic Innovation Group polled 1,200 American millennials (18 to 34 years old) and found that only 27 percent expressed a great deal of confidence in banks (perhaps not surprising considering many came of age during the Great Recession), a dismal 20 percent had confidence in corporate America and two-thirds said they lack confidence in the criminal justice system.

We have found this inherent tendency to “distrust everything” can carry over into the courtroom.  When the plaintiff and defendant disagree about fundamental facts and issues, some jurors assume both sides are just selling their biased spin, and the truth must lie somewhere else.  This results in jurors creating their own causation theories, going down factual rabbit holes (based on an assumption that one or both sides must be “hiding something” from them) or deciding cases based on arguments that neither side is making.

For example, we conducted focus groups for a personal injury lawsuit stemming from a car accident.  There was an overwhelming amount of disputed facts and conflicting eyewitness testimony, and instead of scrutinizing those issues, jurors during both research sessions spent a disturbing amount of time discussing testimony that one of the drivers had stopped at a bagel shop prior to the accident.  Was she eating the bagel at the time of the crash?  Was she distracted because she was trying to put cream cheese on it?  What kind of wrapper was the bagel in?  Could the bagel have rolled under her feet?  Why was she even stopping for a bagel in the first place if she was late for an appointment?

It’s amusing now, but it just goes to show that sometimes when jurors are bombarded with too much information they tend to distrust everything and instead pursue tangential or irrelevant topics in an effort to “crack the case.”  In other words, “We’re not getting the whole story from either side, so it’s up to us to find out what’s really going on.”

Therefore, it can be helpful to focus jurors on aspects of the case on which both sides agree.  Admittedly, these points of agreement can sometimes be rare, but it is still important to establish which facts are not in dispute, to help narrow jurors’ focus to the issues they are actually there to decide, and avoid distractions by non- issues.

Online research, live focus groups and mock trials are highly effective at identifying key misconceptions, crucial education points to corral wandering minds and effective ways to steer jurors back to the key issues at hand.

To discuss how we might evaluate one of your cases, reach out to Partner/Senior Vice President Claire Luna at cluna@juryimpact.net.