The time has finally come for the first votes to be cast in the presidential primaries: the Iowa caucus. That contest has historically proven to be somewhat unpredictable, even to pollsters, and with tight races on both sides, that trend is likely to continue. At this stage, public opinion trackers are also changing the methods they use going forward, and it is a methodological difference that matters to everyone who measures and responds to public opinion, including those who select juries and run mock trial. As National Public Radio’s political editor Domenico Montanaro explains, “Pollsters are switching over from what's known as a registered voter model to a likely voter model, which means that they're essentially testing enthusiasm and whether or not people will go vote. And those likely voter screens are making for a lot of volatility right now. You can't compare what you saw five month ago to what you're seeing today because it's a completely different universe of people.” That is, it is one thing to measure an attitude like “Which candidate do you favor?” and it is another thing to measure a future behavior, like “How likely are you to actually go out and caucus or vote?” With appropriate techniques, good samples, and fair questions, pollsters can effectively measure attitudes with a high degree of precision. But in measuring likely turnout, they’re measuring people’s predictions of their own future behavior, and that is a whole different ball of wax.

The same distinction applies in litigation: Sometimes you want to know attitudes (“What do you think about law enforcement?”) while at other times you want to know past behavior (“Have you ever had a negative interaction with law enforcement”) or future behavior (“Are you able to follow the instruction to treat all witnesses the same?”). There are problems with all three kinds of questions. Respondents will have an incomplete or biased awareness of their own views and actions, and are likely to skew answers in the direction of what is "socially desirable." But in different contexts, it will make more sense to target attitudes over behavior, or vice versa, or to ask both. In the primary polls, for example, the attitudinal question is “Which candidate do you favor?” but there are behavioral versions of that which may give you a better picture: “Have you shared any of that candidate’s Facebook posts, signed any pledges or petitions about that candidate, supported the candidate in any conversations with friends, neighbors, or coworkers? Do you have any buttons, T-shirts, or bumper stickers supporting the candidate?” Those questions are likely to get you to a measurement of strength of support or likelihood of turning out in favor of a candidate. So the key is to be aware of what you’re looking for, and to ask it in a number of overlapping ways. In this post, I will look at a few topics that often matter in jury selection and compare attitudinal versus behavioral ways of asking within each topic.

Anti-Corporate Attitudes and Behavior

Many potential jurors harbor a distrust of the honesty or social responsibility of large companies, and those at the most extreme edge of that view can be dangerous to corporate parties in litigation. Some questions we use to identify higher risk:

  • Attitude: Compared to other organizations, do you believe that large corporations are more honest, less honest, or about the same?
  • Behavior (Past): Have you ever worked for a large company?
  • Behavior (Past): Have you ever been in a dispute with a large company?
  • Behavior (Future): If the quality and price were equal, would you prefer to buy a product or service from a larger company or a smaller company?

Pro-Management Attitudes and Behavior

Particularly in employment disputes, a potential jurors’ experiences and attitudes toward “bosses” in the workplace are likely to be very influential filters for viewing the conflict. Here are some questions that aim to identify the pro-management attitudes likely to be damaging to plaintiffs.

  • Attitude: When there is a conflict, do you think a good manager puts the interests of their company first or their employees first?
  • Behavior (Past): Have you ever had a job where you were responsible for managing others?
  • Behavior (Past): Have you ever made a complaint over how you were treated by a manager or someone over you in the company?
  • Behavior (Future): If you heard there was a dispute between a large company and an individual employee, who would you be more likely to trust?

Pro Rule-Following Attitudes and Behavior

Jurors who are strict rule-followers are sometimes called “Law and Order” jurors or “authoritarian personalities.” That attitude can favor a criminal prosecution, and can also impact civil cases in a variety of ways. Here are some questions for identifying the rule-followers:

  • Attitude: Is it more important that a child be obedient or curious? 
  • Attitude: Do you believe in the use of stronger laws in order to preserve the American way of life? 
  • Behavior (Past): Have you ever chosen to consciously set aside and not follow a rule of some kind?
  • Behavior (Future): If you faced a choice on an important issue between following the law or following your conscience, which do you think you would choose?

Anti-Plaintiff Attitudes and Behaviors

Americans who have been exposed to lawsuit horror stories or distorted accounts of large “hot coffee” verdicts are likely to believe that there are too many lawsuits, with many of them being frivolous. Here are some questions for identifying those attitudes:

  • Attitude: Do you believe there are too many lawsuits?
  • Behavior (Past): Have you ever been involved in a lawsuit?
  • Behavior (Past): Have you ever had a reason to sue someone else but declined to do so?
  • Behavior (Future): If there was an initiative on the ballot to reduce or to limit the number or the impact of lawsuits, would you be likely to favor it?

I don’t mean any of these lists to be exhaustive: There are clearly many more questions and more types of questions to ask on each of these points. But the examples hopefully illustrate that it helps to ask about the same general topic in a number of ways and to look at attitudes as well as descriptive and predictive behaviors. It also helps that, unlike the political pollsters, we do not need to know the full psychology or to make absolutely reliable predictions. Instead, we are just trying to identify risk. And if we measure in a number of ways, and some of those ways identify risk while others provide reassurance, then that still translates as risk.