By: Daniel R. Cahoy & Min Ding
The ability to effectively preview a jury's opinion of a legal
case though hypothetical simulation is becoming ever more important
in modern litigation. Today, it is common for large corporate
clients to sponsor mock jury studies to obtain feedback on the
effectiveness of particular arguments and potential for
liability. Similarly, many courts utilize summary jury trials
to provide a neutral evaluation of a case and facilitate
settlement. However, there is good reason to question the
results of such simulations. The problem is "hypothetical
bias," a phenomenon that has been well documented in a variety of
experimental contexts in which the lack of real world consequences
causes the decision-maker to provide different responses. The
common experimental remedy is the use of rewards or compensation to
align subject behavior with the task. Unfortunately, such
measures are not useful in the context of jury decision-making
because jurors are not driven by self-interest, but rather by their
impact on the welfare of others.
This paper addresses the problem by proposing a novel incentive
structure for jury studies that achieves realistic incentive
alignment. It also presents the results of two experiments
using this incentive structure that confirm the existence of the
hypothetical bias in a limited context and the effectiveness of the
incentive structure.