Holmes (Aurora Theater Shooting) Jury Selection Q&A

With the Holmes jury selection underway and the whole world watching, I thought it relevant to tap into some of the issues that are likely to be raised by the media and inquiring minds. One of the largest nets has been cast over Arapahoe County, Colorado, to find an “unbiased” group of jurors for the infamous trial. Holmes is facing murder charges and, should a jury disregard his insanity defense, a death penalty. This makes for an interesting jury selection due to the notoriety of the case as well as the issues of insanity, death qualification, and Colorado’s unusual law requiring the Prosecution to prove sanity. Let me address some general questions that will arise as the jury selection moves forward:

1. What happens to jurors who are potential jurors but who have not yet been selected?  Jury selection in this case is scheduled to take a couple months. This raises some interesting questions such as “What happens when a juror is questioned and then released back into their normal life for a couple months before trial starts?” It will potentially help some jurors get their lives in order for the impending long trial, but it also gives them time to potentially be bombarded with media information about the case. Although jurors are instructed not to look up anything about the case or read about it, it will be hard to avoid all day around work colleagues and friends especially when the potential juror doesn’t even know if they are yet on the jury.

2. For large cases like this, how do attorneys know what types of jurors they are looking for? Attorneys have likely run a series of focus groups to aid with jury selection and case strategy. Often jurors in focus groups reveal pivotal issues that the attorneys would never have considered. Those issues then need to be crafted into voir dire questions that can elicit honest discussion about juror viewpoints. In addition, attorneys may do some mock jury selection with focus group participants to practice honing in on question format as well as making sure to connect with the jury, get truthful answers (which is an art in itself), and keep up with any time limitations set by the court. Attorneys will be delving deep with jurors to find out their biases and beliefs. In a case such as this, the Defense will be looking for people who believe that mental illness can have a real effect and who are willing to follow the law regarding insanity. The Prosecution will likely be looking for jurors who are more emotional about the case and who are more apt to believe that a killing whether done in a moment of insanity or not, is a killing worthy of 1st degree murder and the death penalty.

3. What types of questions can attorneys ask to reveal hidden bias? Attorneys often need to focus on lowering the barriers to “bad answers.” What you want to hear from jurors are their honest viewpoints and often those viewpoints or biases are hard to hear when you are advocating for one side or the other. An example of a bias would be a reporter who is asked to sit as a juror on a First Amendment rights case where the reporter would obviously have a personal opinion on First Amendment rights of the press. Another example would be a doctor or nurse as a potential juror on a medical malpractice case. There is often a concern that the biases could “contaminate” the rest of the jury pool. In my opinion, this is not a valid concern. The chances of someone changing their deeply held views simply because a stranger sitting next to them voiced a conflicting viewpoint are slim to none. Therefore, attorneys need to focus on bringing forth those biases, embracing them, thanking jurors for their honesty, and using the voiced biases to generate more honest discussion.

4. What about Stealth Jurors or jurors who want a book deal out of this? The concern is less about jurors wanting a book deal per se as that is not very common, but more about jurors who may want some sort of media recognition or power. Attorneys will need to look for people who seem to want their 15 minutes of fame or who are excited about serving in this case. Those would be red flags. As for stealth jurors (or jurors who have an agenda), it is a real concern without a good solution. Stealth jurors do exist and jurors do sometimes lie to try to get on a jury. In this case, jurors could have very strong feelings about the death penalty or this defendant in particular and want to get on the jury to make a statement. The only way to find a stealth juror is through comprehensive questioning and coming at them at every angle. Attorneys should also be looking for changes in body language or tone of voice when a juror answers mundane questions as compared to when they answer more case-specific questions. Changes in nonverbal communication CAN be ONE indication of deception.

5. In a case like this, how can stress impact jurors and their decision making? How can attorneys screen for jurors who will hold up best under the stress to decide a verdict based on the evidence and not emotion? Stress can become an issue even in less high profile cases. I’ve interviewed many jurors post-verdict and if the evidence is personal to them in any way or they feel a connection to a party or witness, the trial can be emotionally taxing for them. Those same jurors, however, express a sense of civic duty to pay close attention and to listen to even the most horrific testimony. Attorneys need to be sensitive to the nature of the case and discuss the difficulty in seeing unsettling images or hearing heart wrenching testimony. Some people are better equipped to deal with such evidence than others. As for deciding a verdict based on the evidence and not emotion, this is a problem in every case, including civil cases where jurors could feel sympathetic to an injured party or to the person being sued. The law is that sympathy can be felt but cannot be a part of the verdict. The task for the defense in this case is to emphasize to jurors that emotion is human and feeling it is allowed but deciding a verdict on it is not. The defense attorneys will be looking for jurors who are able to follow the law regardless of their emotions. The prosecution, on the other hand, will benefit from jurors who have a hard time setting their emotion aside.

6. Do attorneys choose based on demographics or are they more concerned with questioning the individual? Attorneys may ask some of those questions and it can provide SOME information on jurors but what matters most is the individual. Jury selection based on demographics simply does not work in the vast majority of cases. It could be that certain groups of people will have had similar experiences in life and therefore are more likely to think a certain way but attorneys would want to confirm that with multiple focus groups and even when there may be a correlation, people are individuals and it could be a costly mistake to assume a juror will harbor one bias or viewpoint based on demographics alone.

As the trial progresses, it will be interesting to see who the jurors are and how they handle the evidence.

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Juror Insight Focus Group DVDs – Video Previews and Sale Info

About 6 months ago, I posted that I would be running six different focus groups on issues most central to trial lawyers. The focus groups are finished and ready for sale. Below you will find details about the focus group content. This is a way to get focus group feedback extremely inexpensively.

I recruited two groups of jurors from Denver and the surrounding areas and tested three topics with each group. In addition, when you purchase a DVD, I will send you a list of some time stamped talking points where I give my commentary and feedback on what the jurors are saying. This gives you an opportunity to get consultant feedback on the focus group as you are watching it.

Here is a link to my YouTube account where you can view previews of each of the DVDs:

https://www.youtube.com/channel/UCExd3xfiDbImJ1Gh43g0jBw

Here is a synopsis of some of the topics covered in each of the DVDs.

PREMISES LIABILITY

Included in this disc are two panels of juror discussions regarding:

  • Who is responsible for keeping public premises safe
  • Expectations of store owners regarding wet floors from rain, snow, or spill
  • Responsibility of the injured party
  • Fixed versus temporary hazards
  • Safety sweep time schedules
  • Uneven concrete walkways
  • And more…

LOW SPEED CAR CRASHES

Included in this disc are juror discussions regarding:

  • Possible injuries from low speed crashes
  • Pre-existing conditions
  • Injuries compiling on one another from  previous crashes
  • Brain injury from low speed impacts
  • And more…

 PRODUCTS LIABILITY

Included in this disc are juror discussions regarding:

  • Responsibility of a company to make a product safe
  • Responsibility of the user of the product
  • New safety designs and duty to implement them in products
  • Warnings versus design safety
  • Minimum Federal safety standards
  • And more…

 INSURANCE BAD FAITH

Included in this disc are juror discussions regarding:

  • Expectations of the claims handling process
  • Insurance delay tactics
  • Independent Medical Examiners
  • Claims handlers ignoring treating doctor opinions
  • Claims handlers’ use of statistics to determine whether an insured is injured
  • Litigation syndrome
  • And more…

 MILD TRAUMATIC BRAIN INJURY

  • Video case study of actual MTBI client
  • Impact required to cause MTBI
  • Symptoms of MTBI
  • Concussion
  • MBTI vs. Depression
  • And more…

 MEDICAL MALPRACTICE

Included in this disc are juror discussions regarding:

  • Coordination among care providers
  • Expectations on accurate record keeping
  • Who is responsible for follow up
  • Good intentions of care providers who “made a mistake”
  • Differential diagnosis
  • And more…

 

ORDERING INFORMATION:

The DVDs range from 35 minutes to over an hour long. They are priced at $300 each or $1200 for all six.

Keep in mind that the contents of the DVDs are valid measures only for one group of Colorado mock jurors. Due to differences in juror demographics, if you are looking to apply the results of this discussion to a specific case, it is highly recommended that you do separate focus groups to test issues with jurors in your specific venue. The information contained in the DVDs is meant to be SOME information about how jurors perceive these issues.

If you would like to order, please contact me directly at trialstrategist@gmail.com and specify what you would like to order. I will send you a bill and once payment is received, I will ship out your order.

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Revised Focus Group Cost Share Project

A month or so ago I offered a chance to take part in a cost-share focus group set. I had a good number of people interested but very few contracts and deposits were received by the deadline. In following up with people as to why they did not send in payment, I received feedback that prompted a change in plans in order to try to meet everyone’s preferences, concerns, and wishes.  Instead of doing a cost-share with individual slots, I will be running focus groups on the following six (6) topics and recording the groups. I will then sell copies of the focus group DVDs to anyone interested either individually or as a set. Pricing will likely be:

 

$275 per focus group DVD

$1200 for the set of all six (6) focus group DVDs

 

Topics:

  1. Premises Liability
  2. Mild Traumatic Brain Injury
  3. Low Speed Impacts
  4. Expectations of Doctors and Care Providers (Communication, Diagnosis, Compared to Patient’s Responsibilities)
  5. Products Liability
  6. Insurance Companies & Bad Faith

 

I will be doing three topics at the end of August and three at the end of September. I will keep you all appraised as to when DVDs are ready for sale.

 

IF THERE ARE ANY QUESTION OR SUB-TOPICS YOU WANT INCLUDED IN THE FOCUS GROUPS, PLEASE EMAIL ME YOUR QUESTIONS OR TOPIC AREAS. If they are testable topics or questions, I am happy to include them in my scripts.

 

If you have any questions, please feel free to contact me.

 

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Focus Group Cost Share Details

For those who were potentially interested in the focus group cost sharing, here are the finalized details. I want to stress that YOU DO NOT NEED TO DO ANY PREP WORK, NOR DO YOU NEED TO SHOW UP LIVE. The main benefit is in receiving the DVD footage of the focus groups as well as having the opportunity to request an individual slot to test something specific to your case for only $500. There is some confusion with people thinking they don’t have time on their schedules but otherwise would be interested. This should take no time on your schedule. You may attend one (or more if there is room) focus groups live but that is certainly not required. Here are the details:

 

1.      Setup: There will be a total of 8 topics tested. Two will be tested at a time with the same jury. This means that each month, on a Saturday, there will be a group of 6-8 jurors present. Jessica Brylo will lead hour-long discussions about 2 of the 8 topics. The next month, with a different jury, another two topics will be tested and so forth until all 8 topics have been tested.

2.    Cost:  $1695 for all 8 topics (that’s $211 per hour-long focus group! Including costs!!!). Individual sessions are extra (see below) but still GREATLY discounted from what it would cost you on your own.

3.    Dates, times, & topics tested: 4th Saturday of each month. The focus groups will usually run from 9am-11am. However, if there is an individual session that needs to be run before the topics (this will depend on what is being tested) then the topic testing may be moved to 10 or 11am. We will let you know of this change a few weeks before the session. YOU ARE NOT REQUIRED TO SHOW UP. YOU ARE BUYING DVD COPIES OF THESE FOCUS GROUPS. You will be guaranteed a right to attend one focus group live IF YOU WISH and maybe more if we have room.

     a.    July 26: Mild Traumatic Brain Injuries & Products Liability (the need to go above mandated standards, responsibility of owner vs manufacturer, etc)

     b.    August 23: Expectations of Doctors/Care Providers & Insurance Bad Faith

     c.    Oct 25: Premises Liability & [Tentatively] Feelings About Attorneys/Legal System

     d.    Sept 27: Low Impact Car Crashes & [Tentatively] Hodgepodge of Smaller Issues (i.e. pre-existing injuries, aggravation of injuries, suing the well-intentioned good people, etc)

4.    Rights to view live: We cannot fit everyone in the viewing room so you are guaranteed a right to come watch at least one focus group. If there is room, we will send an email to alert you ahead of time and if you would like to attend another focus group live, you may ask to come. Spots will fill on a first-come, first-serve basis. We will fit as many in the room as we can squeeze.

5.    DVDs: You will receive DVD copies of all focus groups. If you attend live, you may have the DVD before leaving. If you do not attend live, a copy will be mailed to you.

6.    Individual slots: There will be a maximum of 8 individual one hour slots up for grabs. This means that we will recruit jurors to stay for an extra 1-2 hours after the topic testing in order to test your case issues. This is NOT enough time to do a full focus group on a full case. It is helpful, however, if you are early in your case and want guidance for discovery on some issues, testing exhibits, doing some voir dire practice, etc. For more information on this, contact Jessica Brylo directly. Slots will cost an extra $500/hour to cover extra juror pay, video fees, and consulting time, plus an extra $275/hour for any time Jessica Brylo spends coordinating ahead of time with you to create the focus group script. We need to know 3 weeks ahead of time if you want to reserve an individual slot in order to recruit the jurors. The $500 payment will be due 3 weeks ahead as well. And remember, the spaces are first-come, first-serve so they may fill quickly.  Everyone is not guaranteed an individual slot. 

 

if you are interested, please contact me ASAP. Trialstrategist@gmail.com

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Focus Group Opportunity

This is an opportunity to get focus group feedback at a greatly discounted price by sharing costs among numerous attorneys. I will be coordinating this venture locally in Denver but it is open to anyone nationwide. There are two opportunities:

1. In this initial series I will be covering 8 different general topics with various groups of jurors, two topics per month for four months, and converting the footage to DVD. Examples of these topics include:

  • Expectations of doctors or care providers regarding coordination of care, asking questions to elicit a proper diagnosis, wait times, etc.
  • Expectations of stores regarding safety of the premises: How often do they need to be checked for safety? Does the expectation differ depending on the store or property type? What is reasonable to expect?
  • Feelings about corporations and profit motive
  • Feelings about federal standards in product manufacturing and the need to go above standards
  • Attitudes about insurance companies
  • And more topics…

I will give each topic 50 minutes and will be leading concept focus groups on each of these topics. I will be gathering a number of interested attorneys to share costs of these focus groups. Depending on how many attorneys are interested, the expense for the full 8 topic set is likely to be in the $1,000-$2,000 range.

2. If you want other things specific to your case… would like to reserve a 1-2 hour slot following one of these focus groups, I will test anything specific to your case and the fixed costs will remain low as they will have already been split among yourself and the other attorneys. This means no extra fees for venue, recruiting, food for jurors, etc. It will require an extra $25/hour per juror for their time, a very small fee for extra videographer time, and my hourly rate for the prep time and the extra hour of focus groups. This will save you a significant amount in both time and money. It is meant for smaller issues, such as:

  • Testing exhibits
  • Testing case issues very early on to get some opinions which can guide discovery
  • Testing your voir dire
  • Testing case-specific issues that are not included in the 8 group topics

Does it matter that these are Denver-based jurors?

Yes. It always matters from where you recruit. You ideally want to test your case issues on jurors in your venue. That being said, feedback is still feedback. Is this going to give you a full picture of issues for your case or your venue? No. But it is similar to going to a mall and asking people their opinions. It’s helpful to get any opinion. But if your case is not set in Denver county, you do not want to rely only on the feedback from these groups. You will want to follow up in your own venue or at the very least understand that this is just SOME information, not full information. That said, the more jurors you can watch deliberating about any topic, the better your skillset as an attorney. This is an inexpensive way (likely a couple hundred dollars per topic!) to hear juror feedback.

If you think you may be interested or have questions, contact me quickly as spots will be limited.  

303-653-2233

email: Trialstrategist@gmail.com

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New Monthly Flat Fee Consulting Service! First Come, First Serve

As my consulting practice evolves, I’m finding that a good deal of my time is spent on the “smaller” tasks – which is wonderful considering that my goal is to bring some level of consulting to every size case. While most attorneys I work with don’t have the budget for focus groups, they often call asking for a couple hours of my time to talk through a case and strategize, sometimes as early as case intake and as late as a couple days before trial (obviously, the earlier I’m contacted, the more helpful I can be as I’ve been known to completely change the direction of a case and at some point it’s simply too late to implement).

During a case analysis, various issues related to the case may be discussed. Generally the conversation takes on a life of its own but feedback often spills into areas such as suggestions for opening or closing, jury selection questions, areas where jurors are likely to have problems, how to fill in gaps in evidence, what themes to focus on, how to articulate damages, whether to have a client present at court, order of witnesses, which issues to bring up early, formulation of Rules, and many other such topics.

I also get asked to edit opening statements which takes anywhere from a couple hours to 10 hours of my time going back and forth with the attorney to hone in on the details that make such a huge difference.

Because of the outcry for these services, I have started offering a new service package on a first serve basis. I have a couple of local clients but am now opening up the offer to anyone else nation-wide who would like to partake. I will only take on a couple more firms or individuals for this offer.

I have always argued that consulting should not be only for high end clients, but should be of benefit to every size case and even for mediation preparation.  If attorneys had a better idea of how jurors are likely to react to their case, settlement offers would be more advantageous depending on what hidden dangers or benefits were discovered early in the process.  This is one of my attempts to benefit all sized clientele.

WHAT IS THE PROPOSAL?

The proposal offers a base monthly fee for unlimited case strategy/case analysis and editing of opening statements. Note that this is not meant to be an on again, off again agreement for months when you feel you have a high volume of work. This is meant to be ongoing – for you to have me on hand in your back pocket on every case. Rates range from $1,250/month and up. There are different ways to structure the pricing – by firm or by individual – so contact me and we can discuss how to tailor this to meet your needs. Services beyond opening statements and case analysis are not included in this proposal.

 WHAT YOU GAIN:

  • Unlimited access to me for all your cases. No need to wonder if your small case has a budget to allow for a consultant – it will already be paid for.
  • No need to hesitate to pick up the phone or send an email with any quick or complicated question about the strategy of your case.
  • Assist in case intake to know the problems, or unique solutions needed, with your case before you accept it and questions that need to be answered before investing your time and resources.
  • Help with a critical part of trial, opening statement (to get jurors on your side early) will already be budgeted and paid for.
  • Get feedback before mediation so that you know what to argue and what a jury is likely to have problems with regarding your case. This can help you hone in on a reasonable settlement value.

WHAT OTHERS FOUND BENEFICIAL:

Attorneys have found that integrating these concepts early in cases, as part of mediation and in smaller cases has great benefit.   There is simply no reason why trial strategy should be limited only to large cases.  Here are some quotes about these services from attorneys I have worked with:

  • “I have been doing these trials for more than forty years and I can’t tell you the number of times Jessica has unlocked the powerful secrets in one of my cases…She quickly gets beyond the legalese and gives you the themes needed to catch the jury’s attention.”   Jim Gilbert
  • “I just want to strongly urge/suggest that if you are headed to trial, spend the money – even an hour or two, on Jessica to go over some aspect of the case…It’s going to lead you down a path or provide you with some insight, viewpoint or strategy that you never considered because you can’t see the forest through the trees. It will be worth every penny. As a sole practitioner, I can’t afford to focus group every case, but I certainly intend to use Jessica for even the middle cases and consult with her for a few hours on the smaller value cases…If you use any of Reptile, Rules of the Road, or David Ball in your case, you NEED to at least get on the telephone with her even if you initially don’t have an idea of why or how it will help. It will help your case and translate into real dollars that will be far, far in excess of what she will cost.” Todd Travis
  • “Jessica helped craft my voir dire and opening statement. If I can take one positive from this case, it was that the jury reported being convinced by the end of my opening statement that the Defendant was negligent and focused on damages from the beginning…I made a promise to get her involved sooner on the next case.”  Andrew Newcomb
  • “It was extremely beneficial to be able to talk to Jessica about framing the damages argument in a case where the non-economic damages were the most difficult aspect to enunciate. I found her thoughts on the subject to be cogent and outside the box and I used much of her input in trial.” David Webster

This is a great way to bring in a consultant on any sized case. Because you will have already paid for my time on a monthly basis, you do not need to consider whether any one case has the budget for some consulting help – you will have the help in place for all cases. Please call with any questions or issues you’d like to discuss, including ways to individualize this to your firm’s needs.

 

 

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Do You Really Win or Lose Your Case In Jury Selection?

It’s been said many times that you win or lose your case in jury selection. But is this really true? Is jury selection so critically important that it will make or break the verdict? Yes and no.

Jury selection is critically important. No doubt about it. However, I do not believe that the jury you have seals the fate of your case. Of course evidence matters, but that’s not even what I’m referring to. Jury selection is a misnomer. We all know it’s really about de-selection. And that implies something – it implies that you’re not choosing the jury that’s best for you, you are eliminating the worst on the panel. That’s all jury selection can do – give you a better chance at a good verdict than you had before you started eliminating people.

In most jury selections I take part in, there are more “bad” jurors for our side than good. While cause challenges certainly help, judges are often hesitant to grant them even when a juror outwardly states that they cannot be fair and impartial. This often leaves you with 4 strikes but 7-8 bad jurors. And those are just the bad jurors that you know of. How much do you really know about the person when your voir dire is limited to 20 minutes? Sure, sometimes your opponent may strike a bad juror or two for you if they also believe they are harmful to their case, but more times than not, you will have more jurors to strike than you have strikes and you will likely be left with one or two jurors that were more quiet whom you know little about.

This brings me back to my original point. A great majority of the time (maybe even all of the time – but I hate absolutes, so we’ll say over 95% of the time), you don’t win or lose your case in jury selection. Even if you think you have a good jury, you never know what answers you would have gotten if you’d had more time to talk to the jurors during voir dire. During jury selection, you can only improve your chances of a good verdict but always go into trial assuming that you will have a few bad jurors left on your panel.

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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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Beating Preponderance – The Trouble With Battling Experts

I consult on many different types of cases from medical malpractice, insurance bad faith, personal injury, wrongful death – the list goes on. While every case is different, I notice a common theme in many of my consults. As I talk through the case with counsel, I look for potential holes. I try to see the case through the eyes of the worst juror for that side. Through asking questions, I often discover problems in a case that the attorneys never knew existed – sometimes so substantial that attorneys have had to settle the case or, if they’re lucky enough to still be in discovery, make some drastic changes. But even on the “good” cases, the ones that were worked up well and have a strong base from which to build on, I often see attorneys blinded by their story of the case.

Here is an example of the conversations that I seem to be encountering over and over:

Me: What is the defense side of the story?

Attorney: They say X, Y, Z. But they have nothing to back it up.

Me: Well what does their expert say?

Attorney: They will say A, B, C.

Me: How do you know that’s wrong?

Attorney: Because our expert says so.

While cases often are a battle of the experts, you need more than that. If you are the plaintiff, you must prove preponderance. If at trial all jurors hear is your expert versus theirs, that often ends in a toss-up. You may think your expert is better qualified or more likable and sometimes that’s true, but unless there is a glaring discrepancy between the quality of your expert versus theirs, changes are that jurors will count it as a tie. As a defense attorney, a tie may be enough. Legally, a tie would signal less than preponderance. But combined with other aspects of the trial such as your client or how the judge rules on evidence, you may still fall behind. No one wants to be in the position of trying a case that you win just by the skin of your teeth because that means you could just as easily have lost.

So what’s the solution? You need to present your story of the case, but you cannot ignore the other side’s story. You need to address it and not just by having an expert who says their side is wrong. Why is it wrong? What steps did their expert miss in doing the analysis? What inaccurate assumptions did their expert base his/her opinion on? Why is your expert’s analysis more valid? When testing for a TBI, did the medical examiner follow all protocols regarding lack of distractions during testing? Did they rule out other causes of the symptoms? Did the police create a report by following proper police protocol in terms of being unbiased and interviewing the parties? Did your life care planner take into account the fact that once someone lives to a certain age, they are more likely to live longer whereas their planner relied on life tables? You need to explain to jurors why the other side came to different conclusions. In most cases, both sides have paid experts. To point out how much the expert is being paid is fine but it usually equals out between the two sides and jurors understand that experts need to be paid for their time. You need to address not only your story but disprove theirs. This is not always possible, but I see many cases where it is possible and the attorneys simply haven’t taken the time or thought to figure it out. Don’t assume that having an expert who counters the other side’s expert opinion is enough. You need to show why they are wrong.

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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