Litigation and Schemas and Scripts
A schema is a mental construct we use to label and model some aspect of our "reality." The schema then becomes the "working model" for expectations in future experiences.
Schemas can contribute to stereotypes and make it difficult to integrate new information that does not conform to our established schemas. Prejudice exemplifies a highly resistant schema.
Apples are supposed to look like apples. If I believe apples are "red," then I'm going to have trouble accepting Granny Smiths as apples.
Scripts are a special type of schema associated with socio-cultural roles and behaviors.
When I go into a "restaurant" I have expectations about what is supposed to happen first, second, third, etc. If it doesn't happen that way, it's not a restaurant. McDonald's may serve food, but I don't experience it as a restaurant.
Functions of Schemas
We use schemas to (1) evaluate conformity of role and behavior (e.g. doctor, lawyer, artist); (2) categorize people as members of a group; and (3) predict future behavior.
Consumer expectation is based on schemas and scripts...
In product liability lawsuits, the concept of consumer expectation is associated with schemas and scripts. The product is supposed to look like, be used like and perform like the consumer expects it to perform.
Juror expectation is just another way of talking about consumer expectation...
Jurors have expectations for schemas and scripts on multiple levels.
The Courtroom/Trial Level
The juror expects the activities in the courtroom to conform to the scripts the juror brings into the courtroom.
For example, prosecutors are now becoming more and more aware of the "CSI effect." Forensic science and pseudo-science has captured the imagination of Hollywood; on any given afternoon and evening there is probably at least one network or cable station showing a crime drama with forensic "evidence."
Jurors have been indoctrinated to believe that every crime is going to be dusted over, digitally scanned and compared to databases, chemically treated and DNA analyzed.
Prosecutors cannot deliver on these expectations, and it is a problem for them.
In general, litigators are expected to be articulate, their narratives expressing a coherent story arc, their examinations bringing revelations in the final scene before the judge sends everyone home at 4:00PM. Because of procedural process, the courtroom moves relatively slowly, the story often unfolds in a non-linear sequence and may challenge the attention span of jurors accustomed to the space between commercial breaks.
It's a good idea to educate jurors about the "script" for your trial during opening statement.
The Case Level
In terms of case substance, litigators need to be aware that every type of legal case has its own script.
- A whiplash case has its own schema and script.
- A slip and fall case has its own schema and script.
- A contract case has its own schema and script.
- A wrongful termination case has its own schema and script.
- A product liability case has its own schema and script.
- A sexual harassment case has its own schema and script.
Jurors are expecting to hear a narrative that conforms to that schema and script. In a rear-ender, jurors expect to hear about a neck injury, not a wrist injury. In a contract case, jurors expect to see something in writing. In a wrongful termination case, jurors expect to see a "good worker." In a sexual harassment case, jurors expect that the sexual conduct is unwanted, fought off and not consensual.
Court rulings on evidence may disrupt a conforming and turn it the case into a non-conforming script.
For example, I remember a case in which a doctor did not check in on a post-surgical heart patient for whom he was responsible and the patient died. The doctor claimed he was emergently picking up a heart for another patient's emergency transplant. However, there was a significant unexplained time space in the doctor's timeline that could not be accounted for. The plaintiff wanted to present that the doctor had been disciplined and "on probation" for being a heroin addict and had just recently been reinstated. He had a history of irresponsible behavior related to his heroin addiction. In addition, the defendant doctor could not be present at the trial because he had died of a heroin overdose. The plaintiff argued that the doctor's heroin addiction explained the hole in the timeline. The court felt that evidence related to heroin addiction and prior irresponsible behavior associated with the addiction was overly prejudicial and not sufficiently probative. None of it came into evidence.
The jurors were left to fill in the gaps in the narrative with a "conforming script," which in this case easily excused the doctor who appeared to be consumed with a parallel emergency.
Litigators should anticipate non-conforming scripts...
Few cases are representative of "textbook" scripting; most legal cases compel the litigator to deal with non-conforming scripts.
Therefore, evaluation of bias during jury selection is in part the assessment of the relative flexibility or rigidity of the juror's case specific schemas.
The litigator should be sensitive to the typical schema and script for a particular case and take note of (1) the ways in which the subject case departs from the script, and (2) which side benefits from the non-conforming elements.