June 8, 2011 · 9:56 pm

Tips for Conducting Post-Trial Juror Interviews

When trial is finished, and particularly if it did not go well, you may be inclined to conduct some post-trial interviews with the jurors.  Since jurors may be inclined for various reasons (discussed below) to either lie to you or give curt answers, you need to be aware of some interviewing tips and methods if you are going to get useful, accurate answers to your questions.

The following are barriers to getting full and honest responses, followed by methods to help eliminate these issues:

1. Jurors just want to go home.  Immediately following the verdict, jurors may agree to sit in a room with you to answer questions but in many cases, they really just want to go home and get back to their lives.  They may not speak up in a group in order to make the interview progress more quickly.  It is often better to contact jurors in the days following the end of trial and ask for some of their time over the phone (or in person if they would prefer) at a time that is convenient for them.  Do not conduct your phone calls during weekday evenings or on Sundays at first.  If you are not getting a response, you can try those times and leave a voicemail.  If you have trouble getting jurors to return your calls, you may want to offer them $50 cash as an incentive.

2. Jurors don’t want to tell you the truth to your face.  No one likes saying bad things about someone to their face.  If jurors did not like you, they may say so in some fashion during post-trial interviews if you are the one interviewing them, but trust me, they are much more candid with a third-party doing the interviewing.  Even better if they do not know which side the person calling works for.  If you don’t have the money to hire a trial consultant to do the interviews for you, have someone from your office call from a non-office phone.  If jurors ask who the caller works for, have them simply explain that they are happy to answer that and any other questions at the end of the interview, but because it can unconsciously bias the interview itself, they are not allowed to answer that up front.  Most jurors understand that and will continue with the interview.  You will be surprised at what they will say.

3. Your interview style leads jurors instead of opening them up to answer honestly.  The rules for interviewing are similar to those for voir dire.  Do 10% of the talking.  Ask open-ended follow-up questions (“Tell me more about that” or “What else?”).  Keep asking those questions until the juror says “that’s really all.”  Do not be afraid of silence.  I will often forewarn jurors up front that I may ask some questions that sound repetitive but it is not because I’m not listening to them; rather, it’s because some jurors don’t think of things the first time you ask or they interpret questions differently so I often get different responses.  I have yet to have a juror be angry or frustrated with me asking them to “tell me more” so often.

4. Make sure your questions don’t give you away.  If you want honest answers, you have to make sure jurors do not know which side you work for.  If you are consistently asking questions to understand why you lost or what you did wrong but do not balance the interview with questions geared at the other side, jurors will quickly pick up on your motive.  Ask what jurors thought of the plaintiff’s attorney, followed by what they thought of the defense attorney.  Ask what more they wanted to hear from the plaintiff, followed by what more they wanted to hear from the defendant.  Balance every question on both sides.

5. Ask the all-important end question.  At the end of the interview, ask if there is anything you have not asked about that they think would be important for you to know.  Some jurors will say “no,” some will say something about low juror pay or something else you may not be interested in, and some will say something really valuable.  Do not assume that you have asked all the right questions.

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May 27, 2011 · 12:57 am

“12 Angry Men” In Real Life

Sometimes movies have good lessons.  “12 Angry Men” had a few.  Below is a short snippet from a 9th Circuit Court of Appeals order.  I will also provide the link to the full opinion but wanted to briefly mention a couple of lessons from the below-referenced case:

OPINION

REINHARDT, Circuit Judge:

Consider two scenes:

Scene One

Juror #8: I just want to talk.

Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you.

Juror #10: I want to ask you something: do you believe his story?

Juror #8: I don’t know whether I believe it or not — maybe I don’t.

Juror #7: So how come you vote not guilty?

Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong.

Scene Two

Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . .

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two-thirds of the jurors have tried to persuade— have actively tried to persuade . . . him that his current view is incorrect.

Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . .

Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . .

The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict. Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

[Here is a link to the full opinion: http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf]

I have two comments, one relating to the opinion, and one relating to a comment of a quoted juror.  Regarding the opinion itself, I give the judge credit for understanding that holdout jurors are a fundamental part of our legal system.  Expecting that all jurors will come to a consensus on every case is not only unreasonable but it also implies that all minds think alike – which is the very antithesis to the purpose of having a cross-section of the community. 

Secondly, notice that the juror says, “I wouldn’t want to take anyone’s freedoms away unless I was sure that certain things took place.” [Emphasis added]  This comment is common in both civil and criminal lawsuits when plaintiff’s attorneys or criminal defense attorneys are not clear throughout trial about the burden of proof.  When you try cases, make sure that jurors understand that they do not have to be 100% sure of anything.  Ask in jury selection how sure they would have to be to make a decision in this case – 80%? 70%?  What is their line.  In civil cases, you can get challenges for cause based upon these answers.  Make sure you reiterate the burden in opening, through witnesses, and in closing.  Jurors cannot think backwards, so if you only hit on the burden once in voir dire/opening, they forget it by the time you mention it again in closing and by that time, they have analyzed all of the trial evidence through a lens of “am I sure?”  Particularly in civil cases, preponderance is one of your best weapons.  Don’t forget to use it!

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May 20, 2011 · 2:36 am

Which Type of Focus Group Should You Run?

There are a multitude of ways to run focus groups depending on what you are trying to test.  The most common focus groups are:

(1) Concept Focus Group

(2) Deliberation Focus Group

(3) Testing Exhibits

There is no one setup that is better than the others.  They all serve individual purposes.  Let’s go through them one at a time:

Concept Focus Groups:  These are most similar to what you would imagine for a focus group to test a product.  The moderator stays with the group of jurors the entire time, feeding them information in small bits from the most general information to the more specifics of the case.  As the discussion progresses, the moderator probes jurors for their reactions.  This allows you to see how juror opinions shift when a new piece of evidence is presented.  It will tell you what is missing, what is important, and where jurors are confused.  What it will not tell you is how jurors process the case as a whole when presented in script format as it would be in trial.  It does not tell you how jurors would process the information individually before deliberating as a group, nor does it give any indication of how deliberations would turn out, who would be leaders in the discussions, and how jurors work together as a group.  This type of focus group is usually best suited for earlier on in the development of the case before discovery deadlines pass to test general opinions and find out what more information or experts jurors are needing.

Deliberation Focus Groups:  In these focus groups, jurors do not have the opportunity to talk amongst one another until after hearing a plaintiff’s and defendant’s statement of the case.  Questionnaires are usually administered at the start of the project and after each statement to track juror attitudes as the case progresses.  After the presentations, the moderator leaves the room and jurors are left with a verdict form and instructions to deliberate to a unanimous verdict on all questions.  This type of focus group will tell you how jurors respond to the case as a whole and what issues are likely to come up during deliberations.  You will get a good sense for what information is important and what information jurors are likely to dismiss.  These focus groups are best suited for mediation or trial preparation after there is enough discovery to have a solid idea of the case and what evidence is likely to be admissible.  It is still advisable to conduct these focus groups before discovery deadlines as you will often learn from jurors that you need exhibits and experts you had not thought to designate. 

Exhibits: Exhibits can be presented during either a concept or a deliberation focus group, but you can also run a much more streamlined and simple focus group solely for the purpose of testing juror reactions to exhibits or demonstratives.  Recruit jurors from your venue and get feedback on whether your exhibits convey the message you think they do.  You can test exhibits from multiple cases in these focus groups since you are not looking for an overall opinion of case facts but rather are probing for messages your exhibits are sending.

Timing: With the possible exception of a focus group dedicated to exhibits only, it is recommended that you run at least one focus group prior to mediation.  The insight gained during the exercise should increase the settlement figure by at least as much as the focus group cost you.  If the focus group is favorable to you, take video clips into mediation with you, accompanied either by your consultant who ran the focus group or a letter from him/her explaining the reliability of the methodology and the results.  Mediation is about predicting what jurors will do with a case if the case goes to trial.  If you can show you used reliable methods to determine what is likely to happen at trial and the results are in your favor, you will have a very good chance of increasing the settlement figure.  If, on the other hand, the focus group yields some unfavorable results with problems that are unsolvable, you will have learned some valuable information on the amount you should settle the case for to prevent a defense verdict at trial. 

Regardless of what type of focus group you run, make sure you follow scientific principles so the results do not mislead you!

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April 27, 2011 · 2:12 am

Juror Interviews

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 trialstrategist@gmail.com

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April 15, 2011 · 2:30 am

Useless SJQ Proposed in Criminal Trial

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.

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April 4, 2011 · 9:31 pm

Polarization

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.

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March 20, 2011 · 9:59 pm

The Empty Chair

Time and time again, it comes up in focus groups – why aren’t they suing the doctor as well as the hospital?  Why are they just suing the company but not the driver?  These comments are most often followed by some version of “they’re going after the deep pockets.  They’re after the big money.”  These are not good comments for you – it means that jurors are seeing you as the greedy, manipulative trial lawyer who goes after any entity that has money to pay regardless of who is at fault.  Jurors often want to blame the party that belongs in the empty chair.

In some cases, this is unavoidable.  If you have settled with one party and not the other, there is no way to bring the settled party into court just to fill the empty seat.  There are, however, some circumstances in which you can and should name an additional party to avoid having an empty chair.  For example, if you think the defense is going to name a non-party that will then be on the verdict form, address that party head-on.  Add them to the lawsuit.  If jurors are going to hear about them and be able to allocate fault to them regardless, better to have it come from you so that they see you as asking for relief from all parties who are responsible rather than simply the ones who can pay.  Once you have added them to the lawsuit, you can strategize on how to keep as much liability as possible on the larger entity.  Test various themes and arguments in focus groups to find out how to keep the responsibility where you need it.  Sometimes admitting that another party is at fault for certain acts gains you the trust you need with jurors to then argue to reduce that liability percentage. 

  • For example, you may be able to argue that the doctor is responsible.  He did x, y, and z wrong.  However, the largest harm in this case was caused by the system failures of the hospital – the choices hospital administrators made to violate patient safety rules.  If it were not for those choices, the plaintiff would not be in nearly as bad a condition and because of that, we think the hospital is 90% responsible for the harm. 

This type of argument can shift blame where you need it once you acknowledge the other parties at fault.  If you fail to mention those other parties or you let the defense mention them and put them on the verdict form as non-parties, jurors will be tempted to place even more blame on those non-parties because no one guided them as to how to deal with attribution of liability in this case.

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March 6, 2011 · 11:35 pm

Being Transparent During Voir Dire

Attorneys often make the mistake in voir dire of failing to be honest with jurors.  I often see attorneys try to hide bad facts or spend hours figuring out how to refer to the bad facts in a way that makes them seem okay.  By the time the question is posed to the jurors, it is so disorganized with run-on sentences  that jurors don’t even understand the question.  Much stress and confusion could be saved by simply being transparent.  If you are worried about something in your case, tell jurors honestly that you are worried!  They are human – this lowers the barrier between you and them.  Then tell them what you are worried about, why it worries you, and ask them to discuss it with you.  Do NOT ask “having heard that, can you still be fair to my client?”  It is a useless question that will yield no meaningful or honest answers.  Instead, just have a conversation.  Be relaxed, open, and honest.  For example:

  • I need to ask you all a serious question.  There is something that I’m very concerned about in this case.  My client is not the most likeable guy.  He comes off abrasive and defensive.  He is not warm and welcoming.  He may get on the stand and offend some of you.  I’m worried because I don’t want any of you to feel offended, but also because I worry that even if you find that the defendant more likely than not caused my client’s injuries, no one likes helping a person who is abrasive or offensive.  So we need to talk about that.  What kinds of problems will you have in giving my client a verdict for his injuries because of his personality?

Jurors will appreciate the honesty while at the same time, you will get some valuable information from them.

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February 21, 2011 · 3:44 pm

Either Jurors Didn’t “Get” Instructions, OR…?

http://news.cincinnati.com/article/20110218/NEWS010702/302180096/Experts-Widmer-jurors-comments-raise-legal-questions-?odyssey=tab%7Cmostpopular%7Ctext%7CFRONTPAGE

In case you don’t care to read the article linked above, it details some interviews with jurors from the Widmer trial (husband allegedly drown his wife).  Jurors made comments such as “evidence to us didn’t prove innocence” and the fact that the defendant didn’t testify was “bad,” seemingly indicating that the jurors disregarded instructions that the burden of proof is with the prosecution and that the defendant’s decision not to testify should not influence their verdict.  The attorneys in the case gave examples of these instructions during voir dire or opening and, I would presume, again at closing, so what happened?

There are three options:

1. The jurors had in their minds, based on prior knowledge about the case and/or the story they constructed for themselves during trial, that the defendant was guilty.  If our gut reaction tells us something, we often make up rational excuses to justify our feelings.  So, it may be that the fact that the defendant did not testify had actually nothing to do with their decisions, but that it seemed in their rational and conscious minds to be one way to justify their unconscious leanings. 

2. The attorneys did not carry the burden of proof throughout the trial.  It is very hard to get jurors to recognize that the defendant must prove nothing.  The more the attorneys could have had other witnesses remind jurors of this and armed jurors during closing for some of those comments (such as “he didn’t prove his innocence”), the better chance they would have had at preventing a verdict based on those issues.

3. The jurors simply decided to nullify the law.  In some states, this is legal, but whether legal or not, it happens all the time.  It is very hard for jurors to follow a law they see as archaic and wrong.  There are ways to guard against this, but at the end of the day, there will always be jurors who want to nullify.

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February 15, 2011 · 10:49 pm

Subtlety is Key

Imagine a conversation with a significant other.  You want to spend money on a big television and they want to putting the money in savings.  They approach you as follows: “Honey, you’re being ridiculous!  The economy is in the toilet and you want to go spend money frivolously?  How can you possibly make that uninsightful of a decision?!”  Chances are, you will become even more entrenched in your decision to buy a television.  Their judgmental approach hits a button and turns you off to seeing any rationale on their side.  Suppose instead, they approached you in a more open, subtle manner: “Honey, I know the television is important to you.  I will support whatever decision you make, but please consider the importance of savings and how that might help us later.”  Much different tone and probably a much different result. 

Jurors are like anyone else:  They do not like being told what to do or how to feel – and ESPECIALLY not from plaintiff’s counsel.  People who come to opinions on their own hold to those opinions much more adamantly than people who have been told what their opinions should be.  If the defendant was being reckless, tell jurors the plain facts and let them decide that the plaintiff was reckless.  They will be much more angry about it if they notice it than if you point it out with condescension in your voice. 

When you conduct voir dire, make jurors feel welcome to voice their opinions.  Explain that diversity is what makes this country great – the diversity of religious beliefs, political beliefs, etc.  Tell them that you will not judge them on what they believe, you just want to have a good and honest discussion.  When you get to opening, state the rules and facts of the case.  Do not put in any adjectives or adverbs.  Let the jurors fill those in for themselves.  As you examine witnesses, keep a calm and neutral tone.  Your job is to show jurors the facts and let those facts anger them.  In closing, tell jurors that they are the ones who get to decide how important this rule violation is.  If they feel it is an important rule, then their verdict should reflect that.  If they think the rule is unimportant, then their verdict should speak to that instead.  Give them the choice, let them feel free to make a decision. 

When I was growing up, my father would always say, “Let your conscience be your guide.”  I hate it, but it always forced me to look inside myself to come to the same decision I knew he would have preferred (the right and noble one).  Let the jurors follow their consciences.  You are the messenger to give them enough data on which to base their decision.

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