Have you ever had a trial where you found out after the verdict that one juror had something in their background that biased them against you and may have lost you the case? Most likely, it’s happened many more times than you realize as it’s rare to talk to jurors in depth after a trial or to find out things jurors may be hiding. Doing some deep digging on jurors BEFORE trial is a necessity in today’s litigation world where jurors sometimes have agendas and lie in court. In fact, it almost constitutes malpractice NOT to do some background searching on jurors if you have their names in advance. While many attorneys will try to Facebook search jurors pre-trial, Facebook is simply not enough. There are numerous social media pages that need to be searched and cross-referenced. Photos need to be searched for facial recognition to find other sites where the potential juror may have posted. Background searches can reveal past criminal activity, sometimes in an area related to the trial itself. These are things you should not overlook as it can easily cost you the trial and you would never know. At Hoffman Brylo Consulting, we now offer juror reconnaissance as a service. And for existing customers doing other work with us, we discount the work. Contact us to find out more: email@example.com
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In an effort to allow access to my consulting help for cases where there would otherwise not be the budget, I am rolling out “Concierge Consulting” as a service. Similar to concierge medicine, you would pay me a set amount per month to have unlimited access to me and the services you personally find most valuable, along with lower hourly rates on additional services you may need on a less frequent basis. The amounts could be billed toward clients when there are specific cases that time is being devoted to, allowing you to recoup most, if not all, of the monthly fees. Fees range from a few hundred dollars a month to a few thousand dollars a month depending on what services you in particular want included. I will customize a plan that works for both of us and which will allow us to get help to every single one of your cases. After we work together, my clients almost always tell me that they didn’t know what they didn’t know, they wish we had started working together sooner, and they wish they could use me on more cases. I have thought long and hard about how I can direct my services to more cases and this will accomplish just that. If this seems to be of any interest to you, please reach out so we can talk further.
I came across this article on Establishing Credibility in Plaintiff’s Opening and, with no disrespect meant toward the author, I was shocked at the amount of misinformation. She starts by saying that the goal of opening is to establish credibility with the jury. That is a statement with which I certainly agree. However, the author’s method of doing so, in my opinion, is extremely ineffective.
The suggested opening begins:
“May it please the court, counsel, and may it please you, ladies and gentlemen of the jury:
As you know, if you haven’t forgotten since last Friday morning, and to repeat, my name is Judith—Judy they usually call me—Cartwright, and I represent, together with Mr. Michael Mills, Norman Ames, the plaintiff in this case….”
This is useless information to jurors at this point. They’ve already been introduced to you and they care about why they are there (or at the very least it’s your job to make them care about why they are there) and not about who you are. You lose their interest in starting this way and you’ve said nothing useful.
Next, the author suggests stating that “with reference to everything that I tell you, that we will have substantial evidence for each issue or each point that I mention to you.” Now you have changed your own burden from preponderance (slightly more than 50/50) to beyond a reasonable doubt. Jurors already are programmed to evaluate evidence based on a much higher standard than you’re legally bound to. Your job is to constantly remind them that your legal burden is only to prove “more likely than not.” There is a way to do this while still ensuring jurors that you plan to make a stronger case than slightly more likely right than wrong. This is an art. I rarely see it done correctly and the author’s suggestion is a step in the opposite direction.
Finally, she suggests a full paragraph explaining who else will be trying the case and how much experience they have in the case. Jurors could not care less. This does nothing to advance your case. This author’s goal is admirable and, I believe, correct: Establish credibility with the jury as soon as possible. However, the effective ways of doing so are opposite of what this article suggests.
If you need help editing your opening statement, contact me directly at firstname.lastname@example.org
Due to an unusual amount of movement in trial dates and settlements, I have an opportunity to offer some last minute help at a discounted hourly rate. If you have anything you would like worked on in the next couple of months, please contact me ASAP as I will offer up these openings on a first-come-first-serve basis. I can help with:
- Case analysis (spotting and resolving issues in the case)
- Editing opening statement
- Jury selection
- Crafting voir dire questions
- Voir dire practice
- Focus Groups/Mock Trials
- Witness prep
- Juror interviews
Contact me for more details or with questions at:
Phone (303) 653-2233
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.
You hear about focus groups at every turn – in books, at CLE events, from colleagues. They must be helpful…right? The answer is, it depends.
Focus groups are a scientific experiment. There are variables and outcomes. Playing with some of those variables will directly affect the outcome. But even more important, you’ll probably never know if your outcomes are valid and reliable measures of what actual jurors will do with your case by simply looking at the focus group results. Confused? Let’s break this down.
When consultants run focus groups, they control as many variables as possible. They match as many aspects of the focus group to a real court setting as is feasible. For example, it’s important to have jurors who match the demographics of the venue, who do not know which side is putting on the focus group, who are randomly recruited, and who are screened properly for issues in the case which could disqualify actual jurors. It’s also important that information is presented neutrally in order to remove presenter personality as an extra variable. Evidence should be sifted through to determine what is helpful to present in a focus group setting and what should be left for court. If any of these variables are off, it will affect how jurors discuss the case.
Consider, for example, during case presentation, there is a slip in wording or tone which tips off jurors as to who is putting on the focus group. Jurors may never mention having known who was paying for the study yet the knowledge will subconsciously affect how they discuss the case, knowing that one side is listening. In watching deliberations, however, you would never know that the discussion is being altered and that the information you are getting isn’t full or accurate. Or consider a scenario where a piece of information is presented out of order and later in the story than it should have been. Jurors who heard the information in the correct order could easily have formed a different story about the case than jurors who had already formed opinions and now are rationalizing a way to maintain their story of the case by dismissing or discounting the new information. In watching the deliberations, you would never know that jurors’ feedback is skewed.
If you rely on feedback that is invalid or tainted, it could hurt your case rather than help. And the scariest part is that you would never know.
So how can you prevent damage to your case from running focus groups? Be sure you know what you are doing. Talk to attorneys who have done them before – lots of them. Hire a consultant to run them for you. If budget demands that you do them yourself or you simply wanted to do “quick and dirty” focus groups, just know that you need to take the information with a grain of salt. Assume that there are other opinions you are not hearing and don’t revamp your entire case based off of what a couple jurors have said. Match your expectations to the level of expertise that has gone into your focus groups. If you do that, they can only help.
Bull is a new television drama featuring a Dr. Bull, modeled after Dr. Phil in his jury consulting days. This high powered, all-knowing consultant acts as a puppet master, anticipating what jurors will think and say before they know it themselves. While entertaining, the show is mostly “Bull.”
While it is true that trial consultants try to anticipate what issues will come up in a case and what types of beliefs and attitudes will shape how a juror views the case, no jury consultant can anticipate what each individual juror or the jury as a whole will ultimately do. While Dr. Bull uses technology to trace every keystroke ever made on a juror’s computer, in most instances, a jury consultant knows nothing about the jurors sitting on a case until they walk in the courtroom doors and begin introducing themselves. On occasion, we will get some information in advance on a questionnaire but the information is limited.
Dr. Bull uses what are called “shadow juries” to determine what the real jurors are thinking at any given moment. He claims to be able to match the jury’s characteristics (including demographics, upbringing, beliefs, and even looks!) by 85% or higher. While shadow juries are used (very rarely) in very large cases, this type of matching of backgrounds is impossible.
Dr. Bull places great emphasis on a juror’s backgrounds and beliefs and while these are certainly important factors for any consultant to consider, the beliefs on their own tell us nothing. We need to know how a certain belief/attitude will impact how that juror feels about the issues in this case. Many background beliefs or personal characteristics will be irrelevant to the issues at hand. And often people with similar backgrounds react differently to the case facts due to other differences in life experiences or opinions about the subject matter. A consultant’s job is to find out what issues are pivotal in a case (in the jurors’ minds), craft the case in a way to minimize those issues, and direct attorneys on how to ask meaningful voir dire questions to get at jurors’ beliefs for that particular case. A consultant’s job is make the case stronger but no consultant can guarantee a win or know exactly what jurors are thinking. That’s just “Bull.”
I recently finished working on one of the most difficult, interesting, and tragic cases I have ever consulted on. I think insights can be learned by dissecting cases, so with the attorneys’ permissions, I am honored to share the facts, consulting tips, and outcome of this case with you.
A hotel downtown (Defendant) hires some security guards. One has a background of assault charges and impersonating a police officer. He says he has put that behind him and the hotel is confident in hiring him. His friend is also hired with no criminal record but he does get written up on the job for verbal abuse. The hotel claims to have trained the guards although no paperwork was presented to reflect the training.
Meanwhile, in another state, a different hotel evicts an intoxicated guest. The guest drives away and ends up on a wreck. The Defendant hotel hears of this event and holds mandatory meetings to discuss options other than eviction as well as safe eviction procedures to prevent something similar from happening at their hotel. One of the security guards in question is not present at the meeting.
Fast forward a couple of months. The Plaintiff, a 20 year old female books a room at the Defendant hotel. She and a few girlfriends are planning on staying the night after partying with a few other friends. They go out drinking and everyone comes back to the room around 2:30am. There are no noise complaints but one of the security guards hears noise coming from the room. He knocks and enters the room to tell them to quiet down. This starts a heated exchange between the Plaintiff, a male member of the group, and the security guard. The order of events was contested but at some point, there was an offer for the girls to stay if the men would leave. At some point after this, the entire group leaves and is escorted out of the hotel into the frigid winter air. A male member of the group asks if they can wait inside and call a cab. The security guard tells them “No, get the f**k out.” There is a cab stand outside the hotel. One girl says she can drive so 7 of them pile into Plaintiff’s PT Cruiser and head down the highway. Their BAC levels are high. Only the female driving buckles her seat belt.
About 40 minutes later, the PT Cruiser comes up upon a distressed vehicle going 8mph on the highway when there is a full shoulder open for them to drive on. The female driving is distracted by Plaintiff and her ex-boyfriend in the back seat. She doesn’t see the distressed vehicle until it is too late. She collides with it. The Plaintiff is in a permanent vegetative state. We were asking for $20 million in economic damages and $40 million for permanent impairment/pain and suffering.
The Defense argued liability and causation. They argued that they had no duties toward unregistered guests so their only duty was to the Plaintiff. They further argued that Plaintiff chose to leave when she didn’t want to stay with just the female friends so therefore there was no eviction and no eviction procedures were broken. In addition, there was a cab stand at the hotel and everyone testified that in the past, they have called cabs when drunk. Further, the Defendant hotel argued that they had no reason to know the group members were intoxicated as they were able to walk straight up and down escalators in heels, were not slurring their speech, and even emergency personnel who came to help at the wreck didn’t notice signs of intoxication. Finally, they argued that this was a case entirely about causation. Even if the hotel did something wrong in the eviction, it surely did not cause a group of people to get into a car and drive intoxicated, nor did it have anything to do with a distressed vehicle, the fact that the group did not wear seat belts, or the fact that the driver was distracted and not watching the road.
I worked on this case when it was at its inception. We ran some focus groups at the time and found out that the eviction issue was huge and that many jurors felt there was no case if we failed to prove eviction. However, there were some jurors willing to give some small percentage of responsibility to the hotel – around 10%.
The case seemed to go south when the judge granted a Motion to Dismiss the case. The lead attorney, however, fought it up to the Supreme Court, who reversed the dismissal and sent the case back down for trial. This ordeal took a whole 10 years!
I ran a second round of very detailed focus groups. We found that jurors were hung up on the eviction with most saying that they felt the group left voluntarily. Even the jurors who felt the hotel did something wrong then conceded that it did not cause the wreck. We ran another set of focus groups because jurors were giving varying arguments and I wanted to be sure I knew the path that the real jurors were likely to take. The second set of focus groups confirmed the main issues – the eviction, the causation problem, the drunk driving. The jurors were willing to give between 0-33% responsibility to the Defendant and only a few hundred thousand in damages.
CHANGING THE CASE
I sat down with the attorneys and we reworked the case. First, I told them we needed to make a timeline of the entire eviction process and highlight in red the several points at which the security guards or hotel said or did anything to indicate eviction. Further, we picked a different eviction point. Instead of relying on the hotel’s dishonesty in their destruction of documents and lying about training to try to get jurors to disbelieve their claim that the group was given a chance to stay, we instead embraced the fact that at one point in time the group was given an option of splitting up and having the girls stay. We did this in part because one of our witnesses was going to testify to this but mostly because the focus group jurors believed it regardless. We picked an eviction point AFTER that exchange to show eviction. We also argued that eviction was not necessarily a point in time but rather a process and showed all the times when the group was not welcomed at the hotel.
I suggested that jurors’ anger button was going to be set off by the security guards’ actions and the hotel’s “loss” of documentation as well as some other lies they told in documentation. We needed to make those issues front and center. We also needed to explain that the fact the guard entered the room is akin to someone entering your home. Even police cannot simply enter a home or hotel room. I suggested that they explain that policies, such as the eviction policies, are in place because someone got hurt before and out of that injury, a policy was created. By dismissing the policies, the hotel dismissed someone else’s tragedy. I also re-framed the lack of training and documentation to be a contract issue. The hotel, by hiring security and providing people a safe place to stay, implicitly has a contract to do so in a responsible manner. If the hotel skimps on hiring and training, they are implicitly assuming the risk that someone may get harmed and they are responsible for that harm. Same with eviction procedures.
Some focus group jurors blamed the group for getting confrontational with the guards and therefore forgave the guards for becoming belligerent and escalating the situation. I told the attorneys that we needed to explain that security guards are there only for when things go wrong. If guests are behaving, keeping noise levels down, and sleeping, there is no need for a security guard. The guards are there to calm a situation down, not to escalate it. Having guards skip protocol and escalate a situation is worse than having no guards at all.
To conquer the problem with causation, I suggested that we needed to explain it with different wording. To say the eviction “caused” the wreck was too big of a jump for the jurors. But many focus group jurors said that it “set it in motion” or that this was a “chain of events.” Every mention of causation in opening and at trial was to me explained using these words.
JURY TRIAL RESULT
In addition to focus groups, I participated in the jury selection and editing of opening statement. The case was tried over a period of 2 weeks. The jury spent a full day deliberating and wanted to come back after a holiday weekend. They returned and spent another half day deliberating. They sent a question to the judge asking to see the hotel video surveillance again. This scared the Plaintiff into thinking the jurors were still stuck on causation so they settled. The jurors apparently had only 15 minutes to go and said that they were going to come back in favor of the plaintiff. They were going to put a high percentage of responsibility on the hotel. I do not know the amount they were going to award in damages but the attorneys have said that the client would have done very well for himself had he held out another 15 minutes.
I am honored to have worked on the case and transformed it into something everyone could be proud of.
Good news for all of you: I’d like to get some pro bono hours in. So, email me with a brief synopsis of the case and why you’d like help with it and I’ll see what I can do. My direct email is email@example.com
I’d like to offer to any attorney who is a Veteran or to any attorney who has a client who is either active duty or Veteran 25% off of any of my services, including but not limited to:
- Focus Groups
- Case Analysis
- Editing Opening Statement
- Voir Dire Prep
- Witness Prep
- Formulation of Rules of the Road
To take advantage of this, please reference Memorial Day when contacting me. A contract for work to be done must be signed no later than June 15th (although work can be done at a later date).
Feel free to pass this along to others as well.
Thank you to all that serve!