The Case Against Case Consolidation at Trial

As court systems are tightening their belts under the continued strain of budget cuts and the backlog of cases awaiting trial, some courts have attempted to solve this problem by consolidating cases.  That is, for a single trial, multiple plaintiffs claiming personal injury of a similar nature (for example, all have contracted mesothelioma) bring their cases before a jury together, along with several defendants that the plaintiffs claim caused their injuries.  While the courts may believe this is a good solution to ease the logjam of cases and to encourage settlement, the consolidation process is rife with problems that affect the strength of a single  case among the many; how corporations individuate their cases with so many competing and similar interests at stake; and most importantly how jurors react to the evidence and parties.

In jurors’ eyes, most individual cases are complex – they are hearing a week or more of new information, much of which they were unfamiliar with at the case outset.

Witness and expert testimony has to be understood and remembered, evidence encoded and recalled, liability and causation evaluated.  At the end of that new information overload, they need to understand the calculations of damages theories, remember the often-lengthy jury instructions and deliberate to a verdict using a form thick with unfamiliar terms.

Although jurors’ note taking helps tremendously in their recall of the case during deliberations, their comprehension level and ability to incorporate evidence into their decisions declines as the amount and complexity of information presented increases.  Regardless of whether one is a judge, lawyer or juror, all humans have limited cognitive and memory resources.  As a person’s cognitive demands increase, his/her ability to incorporate new information decreases and the likelihood that she/he would implicitly and unconsciously fall back on prior knowledge, experience or biases to fill in the blanks (and help ease the onslaught of new facts) increases.  Psychologists call the overload of working memory capacity “cognitive load.”  Once this level has been reached (and it can happen quickly – legal jargon alone is taxing, let alone a new subject like patents, asbestos medicine or pharmacological effects), people switch into a different level of processing information that is less conscious, less motivated, and less accurate.  This change impairs their ability to understand, store and effectively use evidence.  Decision-making and judgments decline significantly as information overload increases.  If this can happen in a single case brought by a plaintiff against one defendant, imagine the exponential and multiplicative effect of consolidating separate plaintiff cases against multiple defendants.

Cognitive Demand on Jurors Reduces Their Ability to Understand and Make Valid Decisions

In consolidated cases, jurors hear information presented by multiple plaintiffs and multiple defendants – but the evidence by one plaintiff does not necessarily apply to the others and jurors are instructed to regard and evaluate each plaintiff’s case separately.   In actuality, these lines are quite blurred for jurors.  As the number of separate parties jurors hear from increases, and that must be considered narrowly (i.e., evidence for Plaintiff A only applies to Defendants Y, X and Plaintiff B’s evidence applies to Defendants X, Y, Z), jurors’ ability to recall information and to do it accurately decreases dramatically.  Think about the exponential effect of having three or more plaintiffs and five to 10 defendants.  Not only do jurors have to keep track and evaluate each side’s story, but track the evidence and storylines for separate plaintiffs at once.  In post-trial interviews, jurors frequently describe feeling overwhelmed with all of the information they have heard and with aligning it correctly to particular plaintiffs or defendants.

Experiencing a heavy cognitive load affects decision-making significantly.  New information is processed less effortfully and more mistakes are made.  In fact, one recent study showed that prior (and unrelated) perceived “bad acts” by a defendant increased jurors’ judgments of liability against the defendant as their cognitive load increased.  One can imagine jurors’ heightened negativity toward the defendant for unrelated past actions would also apply to (and increase) jurors’ calculation of damages as well.  In a related phenomenon, increased cognitive load also causes an increase in the reliance on stereotypes and pre-existing biases.  Cognitive load decreases people’s ability to suppress thoughts (i.e., judge’s instructions to “put it aside” or not to consider information) while at the same time the ironic rebound effect increases, whereby the thought to be suppressed actually creeps into the mind more than it would have otherwise.  In sum, not only does consolidation reduce jurors’ (and judges’) ability to learn, recall and properly use new information, but it also instigates reliance on stereotypes and reduces the ability to make effortful, accurate decisions.

Plaintiffs May Not Be Seen as Individual and Not Treated Separately

Not only are jurors asked to understand new and complex evidence and testimony, which reduces cognitive capacity, but in consolidated cases they are then encumbered with the added burden of keeping each plaintiff and each defendant separate.  This includes the distinct causation and liability issues involved in each separate case.  Unfortunately for defendants, if a plaintiff with a stronger case is consolidated with a plaintiff with a weaker case, this can give the weaker plaintiff a leg up, particularly if the stronger plaintiff presents his or her evidence/injury first.

Heuristics are mental shortcuts that alleviate some of the cognitive burden associated with decision-making and reduce the amount of information that goes into decisions. The greater the cognitive burden, the more heuristics are used.  For example, people have difficulty seeing others as individuals when their minds are taxed, so those individuals are clumped together as a group.  Jurors no longer see five individual defendants with separate evidence and stories, they remember only “the defendants.”  If multiple plaintiffs use one expert to present evidence, there is implicit encouragement to regard the plaintiffs as a group instead of individually considering the testimony per case.

Additionally, context effects and anchoring can influence jurors’ overall negative perceptions of “the defendants” as a group, the amount of liability assigned to each, as well as their views on damages.  Jurors’ perceptions of one defendant’s actions and liability will be influenced by the context of which defendant was presented before and after it.  For instance, a damages request of $1 million may seem high to a juror for a single defendant, but when it follows a request of $5 million from the preceding defendant, $1 million dollars does not seem quite so high any more.  The basis of comparison of negligence, liability, “bad acts,” damages, etc., between defendants creates the frame for how information will be evaluated and each defendant will influence jurors’ reactions to the next.

This sets the stage for the anchoring and adjustment heuristic to come into play.  People hear initial information and this creates an “anchor” point, which then must be adjusted away from based on additional evidence and effortful consideration.

This can affect juror perceptions in multiple ways.  If jurors hear very negative information about one defendant, jurors could become anchored into a very negative view of corporations or of all defendants.  Such a scenario would be exacerbated if jurors are by this point perceiving the defendants as a group and/or are struggling to keep up with the pace or complexity of the information.  The negative effect of one defendant bleeds onto the others, and jurors’ overwhelmed memories keeps them from properly adjusting that negative anchor to individually evaluate other defendants in a more positive light.  Anchoring is particularly insidious as jurors hear from the plaintiff(s) about liability allocations and damages requests.  If jurors hear the highest damages request first, it becomes the number for their anchor.  If they are mentally exhausted, have grouped the defendants or invoked other heuristic/stereotypical thinking, their ability to adjust the damages away from the highest plaintiff demand is reduced.  Thus, consolidation can increase the chances of higher damages for defendants.

Conclusion

As their cognitive demands increase, jurors’ ability to individualize plaintiffs and defendants decreases, stereotyping increases and their ability to counteract the effects of contextualization and anchoring decreases.  The sum effect is a lower quality, less accurate verdict that is not based on the merits of each case, but rather the generalized sum of all the parties and any biases that jurors may have implicitly invoked to make their decision-making more manageable.  These issues may hamper a defense case more than a plaintiff’s by shifting the burden of proof via jurors’ use of generalizations, stereotypes and heuristics.

Jill-Liebold_RoundBy: Jill Leibold, Ph.D., Director – Jury Research