For those who don’t know, I send out periodic email newsletters. The newsletters often contain trial tips that are too secretive to post on an open forum. Toward that end, I am about to start launching a series of newsletters based upon juror interviews I have done in the past. I will pick quotes from jurors and explain what the juror is really saying, how it relates to your trial strategy, and what should be done to correct such problems and prevent jurors in your cases from saying the same thing. Because the information is confidential (even though I will be changing names), I feel more comfortable sending it out to people I know rather than displaying it on the web. Therefore, if you are not yet on my newsletter list but wish to receive these emails, please contact me directly. Please send me a link to your firm’s website as I need to ensure that those who receive my newsletters are doing plaintiff’s work. Send your email to firstname.lastname@example.org
Monthly Archives: April 2011
It still astounds me how unaware the court system and some attorneys are regarding juror bias and prejudice. In this article (click for link – http://blogs.wsj.com/law/2011/02/09/prosecutors-juror-questionnaire-unnecessary-in-rajaratnam-case/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Reader ), federal prosecutors argue for two completely useless questions as the entire basis of a supplemental juror questionnaire:
“In their filing, prosecutors suggested the court, if it wants to use a questionnaire, only ask two questions: would serving on the jury impose a hardship and is there any reason the individual couldn’t serve as a “fair and impartial juror.”
Why are these questions useless? Because they give jurors no permission to answer honestly. Almost every juror will state a hardship reason (and these days, many are valid). As for reasons the juror may not be “fair and impartial,” most jurors will say the politically correct answer. Of course they can be fair and impartial – who wants to think they themselves could not be fair? No one. To get any sort of useful and reliable answers, you need to ask questions in a manner that lowers the barriers to “impermissible” answers. Give jurors some examples of why they might not be able to be fair. For example:
Some people believe that if the federal government is coming after someone and that person has already been indicted by a grand jury, that they most likely did the crime they are accused of. Others think that’s not necessarily true. Which one are you a little bit closer to?
This is not to mention the fact that the questionnaire should have many more questions than the two the prosecutors are requesting, but that’s a topic for another novel.
If you’ve ever done a focus group and tracked juror attitudes as the case progresses from plaintiff’s statement through defendant’s statement and into juror deliberations, you may have seen group polarization in action. Sometimes, jurors will indicate a viewpoint and leaning on questionnaires before deliberations which then seems to be an understatement of their actual leanings when you hear them voice their strong opinions in the group discussion. For example, a juror who indicates that she “slightly agrees” with the defense position on a questionnaire may very quickly become a strong defense advocate in deliberations. This process by which jurors become entrenched in their positions is called group polarization.
Research has shown that after participating in a group discussion, participants tend to advocate more extreme positions than individuals who did not participate in any such discussion. This effect applies to liability as well as damages. In deliberations, jurors often advocate for damage awards that are either larger or smaller than an amount the juror indicates on their individual questionnaires before deliberations begin. Where jurors favor a relatively low award, discussion can lead to an even smaller verdict. Conversely, where jurors individually favor a large verdict the verdict ends up even larger after deliberations.
This is one reason why deliberations are so important during focus groups and mock trials. Concept focus groups, which do not allow for deliberations, are helpful for certain matters and at a certain point in the case. However, if you are preparing for trial and need to know what jurors as a group are likely to do with your case, you want to see them deliberate. Watch for the language they use to convince one another that the verdict should be larger. Watch for language your opposition jurors use to lure other jurors more toward a defense verdict. Observe whether the group dynamics are in your favor or against you. Be aware that if you do a concept focus group without any deliberations, the results of a trial may be very different – for better or worse – with group polarization. Further, when analyzing questionnaires from jurors, realize that their responses in a group discussion may differ from their responses on paper.