Category Archives: Jury Research

How Well Do You Know Your Case?

How well do you think you know your cases? I don’t mean the deadlines for discovery or the legal rulings by the judge. I mean, how well do you know the value of your case to a jury? You spend day in, day out with the case so you would think you have a pretty good handle on it. But sometimes that makes it harder. It’s hard to see the forest through the trees. Sometimes, just sometimes, you may be wrong – even really wrong – about your case.

Let me give you a couple of examples. I will have to be vague to protect confidential information. I had an attorney come to me with a case regarding injury to a renter on another’s homeowner’s property. The attorney wanted to run a focus group. Great. He sent me documents to review. The rental property had a hot tub for use by renters. There were clips to secure the hot tub cover but the clips were broken. A “high wind strap cable” was provided to secure the cover. Also provided were instructions to lock the cover down to prevent trespass, although no explanation as to any danger of winds. The renters had previously used the property and used the cable. This time, however, the renters claim the cable was missing. A gust of wind hits, the cover snaps up and hits the renter in the head. As I reviewed the case, I could immediately see a very good likelihood that this would be a problematic case in ways that could not be fixed. I knew the homeowner had done enough to satisfy jurors. I spoke with the attorney. “Sir, to be clear, are you claiming that the negligence in this case is failure to fix the broken clips and failure to warn of the danger of the wind?” “Yes,” he replied. “Are you saying this isn’t a good case?!” He couldn’t believe it. I decided to let the jurors tell him as jurors are known to shock even me at times (see the next example). But lo and behold, I was right. There was nothing I could say to win the jurors over. Nothing. The attorney was shocked. Now maybe you’re not shocked. Maybe it seems obvious to you too. So is this attorney new? Uninsightful? Not good at trying cases and seeing the holes? No. In fact, he’s a seasoned, exceptional attorney. And his greatest power is also his greatest weakness. It may be your greatest weakness too.  I’ll explain more in a moment. Now for another example:

I was working on a medical malpractice case. A woman came into a hospital for a heart surgery. The surgery went fine except there is a 2 hour window without hospital notes for what exactly happened. The woman had a lot of blood loss and died a week later in the hospital. She had some bad pre-existing conditions such as obesity and high blood pressure. We tried the case to a mock jury. The jurors focused on her pre-existing conditions, obviously, but what surprised everyone was the fact that one juror in each focus group panel (we ran two separate panels) decided that the woman had a death wish and was ready to die because she brought her living will into the hospital. “She wouldn’t have brought that if she hadn’t already given up on life,” they said. And even more shocking was that the argument gained traction with other jurors. They decided that she was in such bad health to begin with that she had already given up so it was her fault she didn’t make it because she didn’t have enough will to live. Would you have known that was an issue in this case? Thankfully the attorneys were able to provide an easy remedy at trial by explaining that the hospital asks patients to bring in copies of living wills whenever they undergo surgery and showing the plaintiff’s zest for life. Problem solved. But these attorneys who knew the ins and outs of this complicated medical case really DIDN’T know their case – not the way jurors saw it.

I can almost guarantee that you don’t know your case either. And that doesn’t make you a bad attorney, it simply makes you human. One of the hallmarks of a great attorney is the ability to see the good in even troublesome clients and to be so optimistic and passionate about the case and the client that jurors believe your sincerity. But along with that ability to become so deeply devoted to your cases comes, by definition, an inability to see the forest through the trees. What may have seemed obvious to you in the first example may not be so obvious if it’s your case. How do you know what “obvious” things you’re missing in your current cases? You don’t know what you don’t know. What differentiates a great attorney from a stellar one is the ability to become encompassed in the case and get lost in it, along with the ability to ask for outside help to find and fix the holes. There’s simply no way for you to play both roles. That’s why consultants and mock juries exist. Because you can’t be both the advocate and see clearly.

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Filed under Focus Groups, Jury Research, Misc, Trial preparation, Uncategorized

The Various Shapes, Sizes, and Costs of Focus Groups

Over the years, I’ve come to realize that a good majority of attorneys believe that there are only one or two variations of focus groups – a full-blown mock trial (of varying lengths and levels of detail) and possibly a limited focus group to test exhibits. In reality, there are many more uses for focus groups. Whether you do them yourself or call in a consultant to help with all or part of a focus group (some consultants will work in a piecemeal format and help with some aspects and allow you to do others in order to save money while others may insist on doing the entire project themselves), you should be aware of the various uses. Broaden your horizons!

Below are just some suggestions for the use of focus groups along with the pros and cons of each:

1.     Deliberation Groups. This is the one you are most likely familiar with. Mock jurors hear a Plaintiff’s statement, a Defense Statement, and possibly view some exhibits and watch some videos of parties or witnesses. Questionnaires are administered between statements and videos to track jurors’ reactions as the case progresses. At the end, jurors are left alone to deliberate (yes, this means you have to get out of the room. Do NOT stay in the room while they deliberate. Your presence will influence their discussions consciously and subconsciously). Although this may seem very straight forward, this is one of the types of focus groups where you should really consider hiring an expert to help you. The details of the statements and questionnaires are important. As with all focus groups, you should conduct these before the end of discovery (jurors will often want to hear from people you have not designated as witnesses or see things you had not considered disclosing) but far enough along that you have a very good idea of the other side’s story of the case. Never do less than two groups because you need a control group. Four is ideal.

  • Pros: You will learn about group dynamics. You will see what jurors are likely to do with your case without direction from you or a facilitator. This gives you a good idea of how jurors will view your case, what issues they will have, and what problems your case has before you go to trial.
  • Cons: This is generally the most time-intensive type of focus group to prepare for and also tends to be the most expensive. Further, if you are early in the case, the feedback may  not be helpful if you don’t yet know what the other side is going to say.

2.     Concept Groups. In general, these are run more like you would imagine a product focus group where the facilitator stays in the room with the jurors the entire time asking questions. The order of questioning and the format of questions is important. You don’t want to lead jurors in their responses or give away which side you work for. Again, never do less than two groups. You would be surprised at the influence one “atypical” juror can have over the group.

  • Pros: This type of group is helpful in the earlier stages of your case to find out juror responses to general topics (such as how they view pre-existing conditions of your client or views on product manufacturing overall). It can be very helpful in directing your discovery.
  • Cons:There is an artificial nature to this type of focus group. Jurors in real trials are not fed pieces of information and then questioned along the way. Your questioning can influence how they view the rest of the evidence. Further, you will not see how jurors interact with each other on their own without guidance.

3.     Testing Exhibits. Focus groups are often used to test exhibits or Day In the Life videos. Often you may want to show an exhibit and ask jurors what they think it shows. You may find out that the exhibit displays something completely different from what you had hoped. Jurors may also notice things you did not in the background of a photo or video.

  • Pros: These can be very informal and easy to put together. Further, you can show jurors exhibits from multiple cases in one sitting, so it can be very economical.
  • Cons:Realize that jurors do not view exhibits in a vacuum but that does not detract from the usefulness of testing the exhibits to determine what they show. If testing how impactful they are, you may need to embed the exhibit in a more formal mock trial with evidence.

4.     Testing Witnesses/Parties. Show mock jurors video depositions of your client, the other party, or key witnesses. You may think someone is likeable while jurors think they are lying or exaggerating. Find out whether jurors think your key expert witness is credible and whether they understand what is being said.

  • Pros: These can also be very informal, although you probably want some questionnaires to get individual feedback before the group processes silence those who may think differently from the majority.
  • Cons:Be careful about brining your client in person. There isn’t much case law to save you if your opponent finds out that you conducted a focus group where your client spoke to mock jurors.  Although you are likely protected by being there and having jurors sign confidentiality agreements, it is possible you could lose some privileges.

5.      Testing Voir Dire. In the past year,  I have been offering to help attorneys hone their voir dire skills. With some mock jurors in the room, practice your voir dire. If you have a consultant with you, they can interrupt and change the format of your question or explain why certain questions are not working or how they could be reframed to elicit more truthful responses. After dropping in on random trials on my days off, I’ve come to realize that many attorneys think they are good at voir dire because they have been trial attorneys for years but they don’t realize that their questions are virtually useless. Others have decent questions but the wording is confusing to jurors such that they get blank stares. Practice (and critique) makes perfect.

  • Pros: Since we don’t care about the content of the jurors’ answers, you don’t have to be strict on matching demographics when recruiting. This can be very inexpensive to run since you only need jurors for 2-3 hours.
  • Cons:None. You need to be practicing this!

6.     Testing Opening Statement. Rehearse your opening to find out what jurors think the case is about by the time you finish and how they would lean. In the interest of being neutral, it’s advisable to also read an opening for the opposition. This balances the information jurors receive as well as hides your stake in the game.

  • Pros: You likely don’t need jurors for very long so juror pay is fairly inexpensive and you can fit in a few groups in one afternoon.
  • Cons:While jurors to start to make initial leanings after opening statements, the rest of the trial does matter. Look not for jurors’ end votes but for any questions they have, parts that were confusing, what parts were most important, etc.

There are many other variations of focus groups. They can test just about anything – other than verdict numbers (you can only trust ranges, not actual figures). Just keep in mind that the quality of the results can only match the quality of what goes in. If you do your own inexpensive focus groups during discovery, you should hire a consultant toward the end of discovery to conduct a larger focus group or mock trial where the details become more complicated.

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Filed under Focus Groups, Juror Questionnaires, Jury Research, Trial preparation

Powers of Confirmation Bias: Juror Interview Clips

Confirmation bias is the tendency for a person to distort information to fit with existing beliefs. Any information that conflicts with those beliefs is either forgotten, dismissed, or reinterpreted to be consistent with the beliefs. While most attorneys today are well versed enough in social science to understand this phenomenon, it may come as a shock to see it put into practice. Without revealing any confidential information, I’d like to share some results of post-verdict interviews I conducted on behalf of an attorney I know well. The basic fact pattern was a multi-car collision with two defendants. One defendant was listed as being at fault in the police report. Disputes were mostly over causation and damages. The result was a defense verdict on both counts. The attorney hired me because he was shocked at the verdict with so much liability evidence. I should preface these juror quotes by stating that this is a good attorney. He is not a starter lawyer and he knows of David Ball techniques. Some of the things the jurors mention I can guarantee are not true. The purpose of my sharing this is so that you can see just how far confirmation bias will go. I will focus on just one of the jurors for purposes of proving the point.

The interview started out fairly standard. She I asked what she remembered most and she began walking me through the trial and the actions of the defendants. Fairly early on in the interview, she mentioned,

“Based on what the defense brought up, it was clear [the plaintiff] wasn’t being completely honest…I could see specific instances in her testimony where things weren’t lining up with what she said. That made me question her credibility.”

She later mentioned,

“The plaintiff’s attorney went on and on about how much chronic pain she was in and we never thought she wasn’t in pain but in one line of questioning by the defense they asked her how many times a week she has neck pain and she said 1-2.”

At this point, I knew credibility of the plaintiff was a major issue. It was brought up more than once by more than one juror and seemed to continue to build as more and more inconsistencies showed up. While the juror about other things of importance such as the jury instructions, I knew that a lying client is hard to overcome and that everything else she told me was likely skewed by this belief. As proof, when I asked about the attorneys, the juror started to talk about the plaintiff’s attorney. She stated,

“As we went through trial, other jurors brought up that he had some signals he was giving to the plaintiff and possibly some other witnesses and I started watching and noticed he would roll his eyes or subtly shake his head no or he would cross his leg and dust something off his pants and one of the other jurors said to pay attention to when he does those things, how the witness responds. When he rolled his eyes, the plaintiff would respond that she didn’t recall or if he moved his head to the left in a shaking motion, she would answer no…I got the feeling he was trying to lead her answers which again went back to me establishing her credibility.”

I know this attorney did no such thing, but it fit with some of the jurors’ views of the client and of trial attorneys in general so they believed it and used it to further those views.

Later in the interview, she again mentioned issues of credibility. Although the plaintiff saw only treating doctors and none were referred by the attorney, jurors selectively heard that the doctors were all referred by the plaintiff’s attorney:

“It seemed too convenient that she kept going back to the doctors who were hired by her attorney.”

I was not able to get a hold of many other members of the jury so I suppose I have no way of knowing for sure if there was a rogue juror on the panel or anything else suspicious but I saw no signs of anything other than jurors trying to come to a decision they felt was right. The plaintiff’s inconsistencies killed her chances at recovery and even went so far as to have jurors believing the plaintiff’s attorney was in cahoots. I share this information to make you aware of just how dangerous inconsistencies in a story can be. Coupled with a view that trial attorneys are lying manipulators to begin with and you will have a very hard time winning.

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Filed under Interviews, Jury Research

Power of the Self-Protective Mechanism

I was running some focus groups this past weekend on a negligence case where the main issues were causation and damages. Without breaking any confidentiality, I’d like to share some of the juror viewpoints. In one group, jurors ultimately found causation but felt that money doesn’t do much good so why give any? (This is typical as you probably know). The other group started off going in a similar direction until one juror in particular started speaking up. Here are parts of the conversation:

Juror 1: That’s the hope that if we catch this one, they will put out a policy to prevent this from ever happening again.

Juror 2: It might be us for all we know.

Juror 1: Let’s send a signal to [Defendant] and to their corporate offices. We have to send a serious signal by virtue of a dollar amount that we as a society will not tolerate negligence of any kind…Let’s send them a serious signal…A serious signal is in the millions where they can taste it. Let them hurt now..All of us could end up [here]. At least we could consider we had a small part in making a difference.

Juror 1 convinced 6 of the 8 other jurors to go along with him. How much would you love to have Juror 1 on your jury?  His motivations are simple. While punishment may seem like the primary goal, the punishment is only secondary to his own safety. He sees the defendant’s negligence as something that could affect him and so his only way to remove himself from the danger is to try to end the danger itself by sending a message to the defendant. This was all without any punitive damages arguments in the presentation. So that I do not overstep any boundaries, I won’t go into detail on a public forum of how to best formulate your case so that jurors start thinking in this manner but certainly study David Ball and Don Keenan’s Reptile and/or contact me individually. I simply wanted to share a pertinent moment from my weekend with jurors. Hopefully it makes a few of you smile.

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Filed under Focus Groups, Jury Research, Trial preparation

Jurors United? Something to Consider During Jury Selection

The jurors in the Drew Peterson case are drawing some media attention. While it seems to be out of a movie (Runaway Jury, in fact), the jurors coordinated clothing for a month during the trial. One day it was yellow, another day blue, another day green. Some days it was business suits and other days sports teams jerseys. They have also alternated red, white, and blue, in what may or may not be a sign of patriotism. Without talking to the jurors, no one really knows what this all means. Some say it means the jurors are not taking their jobs seriously. I would doubt that from my multitudes of interviews with jurors, a great majority of whom took their jobs very seriously. What it does show, regardless of the message, is that the jurors are united and getting along.

Does that mean there will be a verdict? Possibly. The odds are higher that there will be a verdict when jurors unite than when there is dissent amongst them. But it is possible that they all get along wonderfully yet disagree on some parts of the evidence or the law.

There is one lesson to point out in this. When you pick a jury, be conscious of the dynamics of the group rather than only focusing on individual jurors. If you want a hung jury, try to put clashing personalities on the jury together. If you want a cohesive group who is more likely to reach a verdict, try to get jurors whose personalities and backgrounds mesh well. Jurors form relationships over the period of a trial and just like any relationship in life, it can be harmonious or tumultuous. Spouses that fight all the time rarely make any decisions together. The same goes for jurors.

What will the verdict be in the Peterson trial? Only time will tell. But I would place money on the fact that if there are disagreements in that jury room, they are being worked out in a civilized fashion with respect for the system and each other.

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Filed under Jury Research, Trial preparation, Voir Dire

Keeping Jurors Awake and Interested

On my days off, I walk into my nearest courtroom and watch jury trials. I look for how long it takes me to figure out what the case is about and how long the attorneys keep my attention. The results are often poor. Yesterday, I walked into a case I believe was a contract dispute about payment for a custom made motorcycle. The plaintiff, the motorcycle designer, was on the stand. His demeanor was calm and he was clear in his speech but the presentation was so dry and boring that after 10 minutes I felt myself wanting to doze off. I looked at the jury of 6. One or two men were nodding and paying attention – presumably they knew a bit more about motorcycles or had some personal interest. Another two or three were turning in and out, at least pretending to look interested as their eyes glazed over. And one woman wasn’t even pretending to be interested. She was completely checked out and bored.

Trials often involve some tedious questioning about topics that are not normally of interest to jurors. There’s nothing you can do to eliminate the need for some “boring” testimony, but you can make it less boring and grab jurors’ attention. At every opportunity, have the witness and/or yourself do something interactive. Even if that means something as simple as writing things on an easel as the witness is talking – such as the pros and cons of doing something a certain way.

In the case example above, the attorney could have either brought in a motorcycle as a demonstrative exhibit or at least had photos of the motorcycle where the witness could have gotten out of his seat to move around and point to things. This helps make the witness into a teacher as well as creates an interactive moment to keep jurors’ attention. He could have had various motorcycle parts cut out with Velcro on the back and showed the jurors why some parts wouldn’t fit while others worked perfectly by switching out Velcro pieces.

Other ideas for other cases include counting out the number of pills a client takes in a day or a week and putting them in glass containers so jurors can see how much it adds up to over a month or a year. Have witnesses come off the stand to point to exhibits or even better, to draw on them. Create a posterboard where you place a red dot next to a standard or rule that the defendant broke each time a witness agrees with a rule violation. Have a physical therapist come off the stand to demonstrate the exercises he had your client go through.

At every opportunity, get the witness off the stand, doing something interactive, and entering into a teaching mode. The jurors will stay interested and your experts will have more credibility as teachers than as paid witnesses.

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Filed under Jury Research, Misc, Opening Statement, Trial preparation

Maximizing your Budget for Voir Dire

The more I am called in to help attorneys with jury selection, the more I realize their money may have been spent better elsewhere. Am I advocating that having a consultant attend voir dire is a waste of money? Absolutely not. But unless you are skilled enough at conducting voir dire, you may not be able to elicit the attitudes from jurors that your consultant needs in order to guide you as to which jurors are good or bad for your case. I have attended one too many voir dires where the attorney was confusing, wasting much of their limited voir dire time trying to re-explain themselves to the jurors who sat with furrowed brows or failed to nail down cause challenges thereby losing multiple opportunities to make their peremptories go further or asking questions in a format that elicits only the politically correct answers.

Here is my suggestion. Gather 12 people and bring them into your office. They don’t need to match your venue’s demographics because you don’t care what they say, you only care that you have bodies to practice on. Pay them in pizza. Have another attorney play judge and try to rehabilitate your jurors after you set the grounds for cause challenges. And finally, have your consultant there to critique you during the process. Practice staying on schedule, getting jurors to talk to one another, getting jurors to give you “bad” answers, and getting jurors to strongly commit to cause-challenge answers. Don Keenan and others have been suggesting this, but I know not nearly enough attorneys are doing it because I am at all of your voir dires!

I would much rather send an attorney into voir dire prepared and without me than to be unprepared and have me there but not elicit information I need to be helpful. If you have the budget to do a voir dire focus group and have a consultant at voir dire, by all means, do both. After all, the focus group should only take a few hours. But if it’s one or the other, I would STRONGLY suggest using your consulting budget on voir dire practice. Besides, it will pay off not only for that case, but for any future case. That is money well spent!

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Filed under Jury Research, Misc, Voir Dire