The "CSI Effect"... in Civil Cases as Well as Criminal Ones
There is a phenomenon that has shown up in criminal juries for the last several years now: laypeople have very high expectations that technical, exact, and conclusive evidence will be presented to them. Further, the expectations are that this evidence -- which can be expensive or highly time-consuming to process -- will be offered no matter how important the case, how serious the charges, how expensive it might be to produce the evidence. This overestimation of both the availability of technical, scientifically processed evidence and the advisability of DA offices seeking it has been described as the CSI Effect, after the highly rated CSI series on television. (Although Dick Wolf, creator of the 371 variants of "Law & Order", believes that this effect showing up in juries actually predates "CSI" and is more properly attributable to his many, many, many, many series.)
Attorneys and trial consultants who work in criminal cases have noticed this for a long time, and it has been documented that prosecutors are offering scientific evidence that they wouldn't have awhile back -- either because it is on a point that isn't really that important or because managing the resources and priorities of a crime lab would have led to not producing it. They must do it now, lest a jury wonder where the CSI stuff was, and assume that an absence of proof is a proof of absence. And really, in my opinion, that is the linchpin of the danger of the CSI effect; a lack of evidence which is expected by an amateur leads to the assumption that "if that evidence existed anywhere in the universe, the prosecutor would have offered it, which he or she did not, so therefore it doesn't exist and the claimed event never happened."
But the "CSI Effect" occurs in civil cases, too, and thus more trial lawyers should be aware of it when working on a case that involves anything technical or technological in the story at all. Here is an example:
In a federal suit in the western U.S., plaintiff alleges sexual discrimination and violations of the Equal Pay Act. Part of the dispute is over who saw which emails and when, and the ability of either side to offer any hard evidence about this is pretty meager. In short, this is a standard, run of the mill civil lawsuit. While the fight is over how much the plaintiff had been paid during certain years, whether others had been paid more for improper reasons, whether her pay had been affected by her complaints about certain things, it had escaped the notice of counsel on both sides that they were handling a technical lawsuit.
Why is a standard issue pay dispute a technical lawsuit? We conducted a focus group of this case to discern how civilians would react to the major issues of the case, how they respond to graphics that one party had created, how they would go about deciding what happened, liability leaning, damages inklings, and so forth. Out of nowhere, one participant said: "What do they mean they can't tell who got which emails and who didn't? The FBI can find hard drives from computers that have been blown up or burned, and they can put them under microscopes to see if the individual bit is a one or a zero, and can visually reconstruct the contents of the hard drive. That's how they've caught a bunch of terrorists. So why aren't we seeing that evidence? Because they don't want us to see it. Or they aren't sure of their case." Or maybe, just maybe, forensic computer coroners don't see civil lawsuits alleging unequal pay on quite the same level of priority as stopping terrorists. Hence this overestimation of both the availability of crime lab resources and the overestimation of attorney prioritization of scientific evidence on points that aren't terribly important.
So we learned something very important that day: Anticipate that even in cases that don't seem to be technical in nature, if there is any transaction that happened by technical means, jurors will have some grandiose ideas about the availability of evidence on that topic... and then mistake an absence of proof as a proof of absence.
I later learned about another case which alleges sexual harrassment in the workplace, some of which allegedly occurred via company email. The plaintiff claims that she deleted it all, and naturally, mock jurors assumed that the internet service provider could simply be subpoenaed and, presto, all the emails could be recovered. Right. And if that fails, the FBI's al-Qaeda team can get right on her hard drive.
My point isn't to pick on jurors. That's never my point and I don't permit it in my presence! Nope. It's the attorneys responsibility to tell their story in a way that laypeople will access and process correctly. Now we know that even in civil cases, attorneys must fashion their stories by taking into account the "CSI Effect."
Antidote: in your story, tell the jurors that they won't be seeing the evidence that you think 'CSI' would lead them to expect. Let them know in voir dire, in opening, during the presentation of your evidence through witnesses, and again in closing.
Attorneys and trial consultants who work in criminal cases have noticed this for a long time, and it has been documented that prosecutors are offering scientific evidence that they wouldn't have awhile back -- either because it is on a point that isn't really that important or because managing the resources and priorities of a crime lab would have led to not producing it. They must do it now, lest a jury wonder where the CSI stuff was, and assume that an absence of proof is a proof of absence. And really, in my opinion, that is the linchpin of the danger of the CSI effect; a lack of evidence which is expected by an amateur leads to the assumption that "if that evidence existed anywhere in the universe, the prosecutor would have offered it, which he or she did not, so therefore it doesn't exist and the claimed event never happened."
But the "CSI Effect" occurs in civil cases, too, and thus more trial lawyers should be aware of it when working on a case that involves anything technical or technological in the story at all. Here is an example:
In a federal suit in the western U.S., plaintiff alleges sexual discrimination and violations of the Equal Pay Act. Part of the dispute is over who saw which emails and when, and the ability of either side to offer any hard evidence about this is pretty meager. In short, this is a standard, run of the mill civil lawsuit. While the fight is over how much the plaintiff had been paid during certain years, whether others had been paid more for improper reasons, whether her pay had been affected by her complaints about certain things, it had escaped the notice of counsel on both sides that they were handling a technical lawsuit.
Why is a standard issue pay dispute a technical lawsuit? We conducted a focus group of this case to discern how civilians would react to the major issues of the case, how they respond to graphics that one party had created, how they would go about deciding what happened, liability leaning, damages inklings, and so forth. Out of nowhere, one participant said: "What do they mean they can't tell who got which emails and who didn't? The FBI can find hard drives from computers that have been blown up or burned, and they can put them under microscopes to see if the individual bit is a one or a zero, and can visually reconstruct the contents of the hard drive. That's how they've caught a bunch of terrorists. So why aren't we seeing that evidence? Because they don't want us to see it. Or they aren't sure of their case." Or maybe, just maybe, forensic computer coroners don't see civil lawsuits alleging unequal pay on quite the same level of priority as stopping terrorists. Hence this overestimation of both the availability of crime lab resources and the overestimation of attorney prioritization of scientific evidence on points that aren't terribly important.
So we learned something very important that day: Anticipate that even in cases that don't seem to be technical in nature, if there is any transaction that happened by technical means, jurors will have some grandiose ideas about the availability of evidence on that topic... and then mistake an absence of proof as a proof of absence.
I later learned about another case which alleges sexual harrassment in the workplace, some of which allegedly occurred via company email. The plaintiff claims that she deleted it all, and naturally, mock jurors assumed that the internet service provider could simply be subpoenaed and, presto, all the emails could be recovered. Right. And if that fails, the FBI's al-Qaeda team can get right on her hard drive.
My point isn't to pick on jurors. That's never my point and I don't permit it in my presence! Nope. It's the attorneys responsibility to tell their story in a way that laypeople will access and process correctly. Now we know that even in civil cases, attorneys must fashion their stories by taking into account the "CSI Effect."
Antidote: in your story, tell the jurors that they won't be seeing the evidence that you think 'CSI' would lead them to expect. Let them know in voir dire, in opening, during the presentation of your evidence through witnesses, and again in closing.
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