January 26, 2012 · 3:19 pm
In light of Ken Broda-Bahm’s newest blog post regarding the proper use of statistics in mock trials (http://www.persuasivelitigator.com/2012/01/dont-be-entranced-by-statistical-claims-from-mock-trial-research.html) as well as a rising need for faster jury selection, I thought I would touch briefly on a related topic of whether to score jurors during voir dire and how that scoring can either hurt or help you.
There are a few models of scoring methods being passed around the community and I often get the question, are they effective? The answer is yes and no. Firstly, let’s talk about what these methods entail. If you are able to get a jury questionnaire, you can score the answers on a scale of, say, 1-5 regarding how positive or negative the statement is for your side. Then add up all the scores and you have an overall score for that juror. This score can be altered if you have enough time to ask the juror additional questions during voir dire. If you are unable to get a jury questionnaire, then you can simply score the juror’s answers on the spot as they speak.
There are many positives to this approach. With such limited voir dire time, it’s almost impossible to do a great job at jury selection. There simply is not enough time to talk to everyone. Scoring gives you a quick overall idea of where the jurors stand and may give you an idea of which jurors are the most likely to be harmful to your case so that you can focus your time in questioning them. Secondly, presenting this method to a judge may, ironically, end up giving you an argument for more voir dire time as well as allowing a jury questionnaire! Stress to the judge that if you are able to get out a jury questionnaire, you can score the answers ahead of time which will allow you to conduct a much more streamlined voir dire process as you can bypass many repetitive questions and get to the jurors you really need to talk to. Once you get to trial and the judge is asking how much time you need for voir dire, ask that he/she allow you to continue as long as you are asking useful questions and not promoting your case but that the moment you slip into advocacy, he/she can cut you off. Only suggest this if you are skilled enough to conduct voir dire solely for the purpose of gathering information. This will allow you to have a jury questionnaire as well as time with the jurors.
My caution with using scoring techniques is that scores do not tell the whole story. A stealth juror may say one thing on paper and be thinking something completely different. You may think you don’t need to question that juror and use your time on other jurors with red flags whereas if you were to take some time to talk to the stealth juror, you may notice differences in his/her body language when asking different questions which would indicate untruthfulness. Further, anything on paper can be taken differently than if you hear a juror’s tone of voice and observe their body language as they say the same statement. So, my overall suggestion is to take everything in stride. Do not use scoring as your main voir dire method. Use it to argue for the use of jury questionnaires and take the scores as one piece of information amongst many which will guide you in the jury selection process.
January 12, 2012 · 3:22 pm
Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented? It’s highly probable. It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.
This blog is named “jurorproof” for a reason. Most everything I post about has to do with proving your case to jurors. That may sound obvious, but please make sure you understand the significance. There is a huge difference between “legal proof” and “juror proof.” Legal proof is what you have to prove to meet the elements of the claim. The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form. But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner.
For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury. Jurors may care about your client’s hopes for the future. They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups). They care that there was no secondary backup system for files even if not required. These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.
In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story. Is this just in mock trials?
Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries. The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie. Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds. But that’s not what matters to them.
So what does all of this mean for you? For one, it means that you need to fill in gaps in your story before the jurors do it for themselves. One thing that makes for a believable story is that it is comprehensive. The less gaps the better. I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial. But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves. This is something they will care about. Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof. Deal with it in voir dire.
Secondly, do some research. Find out ahead of time what juror proof for your case is. The only way to do this is to talk to real people – people who match the demographics of your trial venue. If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors. Go to a mall and talk to strangers about your case. Buy them a coffee or ice cream in exchange for their time. Without that feedback, you would never know that having a living will means having a death wish to jurors, for example.
Don’t go into trial blind to the juror proof. You would never go into trial without knowing the legal proof you need to fulfill. This is no different and equally important.
January 2, 2012 · 3:57 pm
Deliberations are a scary thing for attorneys. It’s the time when you have to completely let go of your case and your jurors and hope that they do the “right” thing behind closed doors. You have no idea what they are saying, who is saying it, and whether your arguments are being understood and used to sway the jury toward the verdict you want. Just because jurors walk out of your sight, however, does not mean that you have no influence. There are ways to influence the content of deliberations themselves, but right now I want to talk about influencing the process of deliberations.
Group deliberations usually take one of two forms – either the group is process-driven or they are verdict-driven. (See many works by Pennington & Hastie) In a process-driven group, the members remain open to new ideas. The spend time thinking things through and looking at evidence before taking votes or trying to fit the evidence into a verdict choice. In a verdict-driven group, the members take votes early and often. Members feel closed off to new ideas and a verdict is often driven more by emotion than logic. If you are a plaintiff’s attorney (or criminal defense), you usually prefer a process-driven group. But how do you get one?
1. Influence the Choice of Foreperson. The foreperson is often very influential in determining the deliberation process as they control the discussions and call for votes. Often the foreperson is the one sitting at the head of a table or the most vocal or someone who simply volunteers. Tell jurors that the selection of a foreperson is an important part of deliberations. Ask that they take a few minutes to think about it and discuss it before deciding who to make foreperson and not to automatically select the first person to volunteer for the job. Ask jurors to think about the type of foreperson they want – do they want someone who will make sure everyone has an opportunity to speak and who will respect various opinions? Do they want someone who will dominate the discussion with their own views? The foreperson’s job is not to rule the discussions, but simply to facilitate them.
2. Give Jurors A Copy of Instructions. If it’s not standard in your jurisdiction, try to convince the judge to give enough copies of the instructions for each juror to have one. Sometimes the foreperson ends up running discussions simply because they are the only ones to have the law in front of them. If the foreperson is against you, this can be detrimental. They may even read the law incorrectly and the rest of the group would never know. If each juror has a copy of the instructions, they can better argue their points. Further, it pushes for a more process-driven group by allowing each juror to see and refer to instructions themselves.
3. Influence the Deliberation Process. In every mock trial or focus group that I run, I tell jurors that before they begin taking votes or deliberating, they should go around the room and allow each juror a few minutes to discuss their views of the case. This allows all viewpoints to be heard. If jurors start taking votes early, arguments that go against the group majority may never be heard due to groupthink and the oppressive power of a majority view. By pushing jurors to discuss issues in the case before committing to a verdict or voting, you will guide them to a process-driven deliberation process.
4. Control the Voting. Finally, suggest to jurors that after they have spent time considering issues in the case, they may all decide to take a vote. Suggest that they not vote unless every single juror feels they are ready to vote and remind them that it is perfectly normal and acceptable to change their minds throughout the deliberation process and between voting periods. Further, suggest to them that when they vote, they do so by secret ballot. This takes away any social pressures to conform to the group norm. Most juries vote by hand raise or by going around the table. These methods tend to pressure jurors in the minority to change their votes.
Although you cannot be in the deliberation room with your jurors, if you prepare them properly, you can still influence the process.
Filed under Closing Argument, Focus Groups, Misc
Tagged as deliberation process, foreperson, groupthink, influencing jury deliberations, jury consultant, jury deliberation, process driven, trial consultant, verdict driven