Litigation and Schemas and Scripts

 

Litigation and  Schemas and Scripts

 

Schemas

 

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

 

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.

 

Non-conforming scripts...

 

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.