Tag Archives: jury consultant

January 12, 2012 · 3:22 pm

What Do Jurors Care About?

Do you ever feel like jurors decided your case randomly or based on something other than the evidence you presented?  It’s highly probable.  It happens often and you need to understand not only how to minimize that risk, but how to control for it and use it to your advantage.

This blog is named “jurorproof” for a reason.  Most everything I post about has to do with proving your case to jurors.  That may sound obvious, but please make sure you understand the significance.  There is a huge difference between “legal proof” and “juror proof.”  Legal proof is what you have to prove to meet the elements of the claim.  The judge requires it and the jurors to some degree care about it when the go to fit the evidence into the verdict form.  But to really win over a jury, you need to appeal to juror proof – the things jurors want and need to hear that may be completely unrelated to proving your claim in a legal manner. 

For example, in a medical malpractice claim, you not only have to show duty, breach, causation, and injury.  Jurors may care about your client’s hopes for the future.  They care that your client drafted a living will before going into surgery because it means (to them) that your client had a death wish (yes, this has come up in a couple of my focus groups).  They care that there was no secondary backup system for files even if not required.  These are things that they need to fill gaps in the stories they create based on their own experiences and backgrounds.

In 1986, Pennington and Hastie did research on mock jurors and found out that only 55% of story references made by mock jurors are made to events/evidence directly testified to whereas 45% were made from inferred actions, mental states, and goals that jurors drew from their own backgrounds to fill in gaps in the story.  Is this just in mock trials?

Well, in 1996, the Arizona Project kicked off where judges in Arizona allowed video cameras into the deliberation rooms of real juries.  The numerous tapes and transcripts (I’ve seen them myself) back up the reasearch from Pennington and Hastie.  Sometimes you want to scream at the jurors to get back on track – you want them back on legal proof grounds.  But that’s not what matters to them.

So what does all of this mean for you?  For one, it means that you need to fill in gaps in your story before the jurors do it for themselves.  One thing that makes for a believable story is that it is comprehensive.  The less gaps the better.  I understand that if you have an illegal alien for a client, you may not want to bring up that piece of information to the jurors if you have an order from the judge excluding it from trial.  But if jurors see your Spanish-speaking Hispanic client, they will wonder it themselves.  This is something they will care about.  Whether your client is illegal or not has nothing to do with legal proof but you better believe it’s a big part of juror proof.  Deal with it in voir dire.

Secondly, do some research.  Find out ahead of time what juror proof for your case is.  The only way to do this is to talk to real people – people who match the demographics of your trial venue.  If you can’t afford to hire someone to do a focus group in a reliable manner, at least talk to some neighbors.  Go to a mall and talk to strangers about your case.  Buy them a coffee or ice cream in exchange for their time.  Without that feedback, you would never know that having a living will means having a death wish to jurors, for example. 

Don’t go into trial blind to the juror proof.  You would never go into trial without knowing the legal proof you need to fulfill.  This is no different and equally important.

3 Comments

Filed under Burden of Proof, Focus Groups, Jury Research, Voir Dire

Tagged as , , , , , ,

January 2, 2012 · 3:57 pm

Are Your Jurors Using a Deliberation Process that Hurts You?

Deliberations are a scary thing for attorneys.  It’s the time when you have to completely let go of your case and your jurors and hope that they do the “right” thing behind closed doors.  You have no idea what they are saying, who is saying it, and whether your arguments are being understood and used to sway the jury toward the verdict you want.  Just because jurors walk out of your sight, however, does not mean that you have no influence.  There are ways to influence the content of deliberations themselves, but right now I want to talk about influencing the process of deliberations.

Group deliberations usually take one of two forms – either the group is process-driven or they are verdict-driven. (See many works by Pennington & Hastie)  In a process-driven group, the members remain open to new ideas.  The spend time thinking things through and looking at evidence before taking votes or trying to fit the evidence into a verdict choice.  In a verdict-driven group, the members take votes early and often.  Members feel closed off to new ideas and a verdict is often driven more by emotion than logic.  If you are a plaintiff’s attorney (or criminal defense), you usually prefer a process-driven group.  But how do you get one?

1. Influence the Choice of Foreperson.  The foreperson is often very influential in determining the deliberation process as they control the discussions and call for votes.  Often the foreperson is the one sitting at the head of a table or the most vocal or someone who simply volunteers.  Tell jurors that the selection of a foreperson is an important part of deliberations.  Ask that they take a few minutes to think about it and discuss it before deciding who to make foreperson and not to automatically select the first person to volunteer for the job.  Ask jurors to think about the type of foreperson they want – do they want someone who will make sure everyone has an opportunity to speak and who will respect various opinions?  Do they want someone who will dominate the discussion with their own views?  The foreperson’s job is not to rule the discussions, but simply to facilitate them. 

2. Give Jurors A Copy of Instructions.  If it’s not standard in your jurisdiction, try to convince the judge to give enough copies of the instructions for each juror to have one.  Sometimes the foreperson ends up running discussions simply because they are the only ones to have the law in front of them.  If the foreperson is against you, this can be detrimental.  They may even read the law incorrectly and the rest of the group would never know.  If each juror has a copy of the instructions, they can better argue their points.  Further, it pushes for a more process-driven group by allowing each juror to see and refer to instructions themselves.

3. Influence the Deliberation Process.  In every mock trial or focus group that I run, I tell jurors that before they begin taking votes or deliberating, they should go around the room and allow each juror a few minutes to discuss their views of the case.  This allows all viewpoints to be heard. If jurors start taking votes early, arguments that go against the group majority may never be heard due to groupthink and the oppressive power of a majority view.  By pushing jurors to discuss issues in the case before committing to a verdict or voting, you will guide them to a process-driven deliberation process.

4. Control the Voting. Finally, suggest to jurors that after they have spent time considering issues in the case, they may all decide to take a vote.  Suggest that they not vote unless every single juror feels they are ready to vote and remind them that it is perfectly normal and acceptable to change their minds throughout the deliberation process and between voting periods.  Further, suggest to them that when they vote, they do so by secret ballot.  This takes away any social pressures to conform to the group norm. Most juries vote by hand raise or by going around the table.  These methods tend to pressure jurors in the minority to change their votes. 

Although you cannot be in the deliberation room with your jurors, if you prepare them properly, you can still influence the process.

Leave a comment

Filed under Closing Argument, Focus Groups, Misc

Tagged as , , , , , , , ,

December 19, 2011 · 11:00 pm

Are You Stealing Emotions Away from Jurors?

With the holidays upon us and families gathering, I thought I would post on something that relates to both normal life and relations with family or friends as well as to the courtroom.  Afterall, what is a family gathering without some turmoil!

In our normal lives, we understand the concept of allowing people to feel their own emotions.  When raising kids, you may have the painful realization that the more angry you get about the rebel your daughter is dating, the more she will cling to him.  When fighting with a spouse, you may realize when everything calms down that you are actually more effective at getting your way when you do not scream and yell.  The adage “you get more bees with honey than with vinegar” holds true, but can often be easier said than done.  If you are angry toward another person, that person doesn’t have to focus on their own anger anymore because you are occupying that space.  Instead they focus their emotional energy on being resentful of you or simply continuing the destructive behavior because they are blind to the consequences. 

These life relationship lessons are transferable to the courtroom.  If you get angry, jurors feel less need to do so themselves.  They unconsciously figure that anger is checked off the list.  If you yell at a witness who is lying, a justice has been served.  The scales are balanced and they didn’t have to do anything for it.  If you get angry toward the opposing party in your case, you take that emotion away from the jurors.  They are then left with emotionless facts.  It may seem counter-intuitive as people instinctively feel that to get others roused up, they need to show the same emotion.  The opposite is true.  Show jurors the facts that lead them to be angry, but remain calm.  This makes them feel that there is still an injustice or imbalance that they need to rectify.  By showing them facts and allowing them to come to emotional conclusions on their own, you leave them free to build up anger and take it out on the opposing side. 

There are some exceptions to this, but very few.  When in doubt, stay calm.

2 Comments

Filed under Misc, Trial preparation, Uncategorized

Tagged as , , , , ,