breach of contract juror bias

Juror “Truths” in Breach of Contract Cases

Regardless of where a breach of contract case is tried, jurors tend to bring common biases to the courtroom in this type of litigation. Whether you represent the plaintiff or the defendant, you must be prepared to deal with these six juror “truths,” excerpted from Dr. Karen Lisko’s book Proven Jury Arguments & Evidence:

1.      Jurors will focus on the sophistication of both parties, even if the case involves a little guy versus a big company. If jurors conclude that the “little guy” is sophisticated, they will expect him to have acted in a sophisticated and informed manner. In addition, jurors generally expect individuals to assume some responsibility in dealing with a large company, rather than simply trusting that the contract terms will be correctly interpreted after the fact.

2.      If it isn’t in writing, the plaintiff is in trouble. Cases abound where the plaintiff alleges breach based on the verbal context surrounding the written contract language. However, when a written contract exists in some form, jurors tend to fault the plaintiff for having failed to get more in writing before entering the agreement.

3.      When breach of an oral contract is asserted, jurors are keenly interested in third-party accounts of the intent of the contract, given the self-serving motives of the parties. Eyewitnesses are especially persuasive when they give detailed testimony about what they heard in contract negotiations.

4.      Jurors’ own practices in reading contracts translate directly to their views of the contract in dispute. As a general rule, jurors who read contracts word-for-word in their own lives tend to favor the defense, while jurors who skim contracts for meaning or who habitually sign contracts without reading them tend to favor the plaintiff.  Detail-oriented (defense-leaning) jurors are less comfortable accepting subjective interpretations of concrete language. Plaintiff-leaning jurors, on the other hand, tend to look harder at the spirit in which the contract terms were reached, holding the plaintiff to less of a burden to have negotiated language for every contingency.

5.      When ambiguous language in a contract is the cornerstone of the dispute, jurors frequently look at other parts of the contract to make sense of the disputed terms. Many jurors will want the opportunity to review the contract as whole, to put the disputed language in context, and will resent the attorney who tries to limit their attention to the disputed language only.

6.      Jurors typically rely first on their own common sense view of contract language before turning to the paid experts’ interpretations. Because just about every juror will have signed a contract at some point, their deliberations will focus first on their common sense interpretations of the contract language. They then tend to match the experts’ conclusions to their own.

Dr. Karen Lisko is a senior litigation consultant with Persuasion Strategies, a trial consulting firm with offices in Denver and Omaha. Dr. Lisko offers expertise in courtroom persuasion, strategic jury selection, case theme development, persuasive opening statements, and closing arguments, and assists with witness preparation for deposition, arbitration, and trial. She is a frequent writer and speaker on jury persuasion, and holds a doctorate in legal communication.