April 7, 2013 · 3:06 pm
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.
February 17, 2013 · 2:31 am
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.
January 5, 2013 · 11:05 pm
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.
February 21, 2012 · 3:53 pm
This post is not strategy-related, but as a practical matter, I often run into an issue when working on focus grouping a case that can be easily solved. I’d like to save you the money and headache. It’s very simple. Please keep every jury list you get from every trial in every county (as long as they list addresses of the jurors).
The reason is simple. I often get called in by attorneys on cases that do not have the budget for a large focus group but where the attorneys really want to see what jurors will do with the case. There are many ways to cut down on the cost of a focus group. One of those main ways is to cut out the recruiter. I mean no disrespect to recruiters out there – they do an amazingly hard job and when there is room in the budget, I 100% recommend using one because they can get random recruits and screen better than any other method. That said, if you don’t have the money, it’s better to work around that cost and still be able to run a focus group. While you can recruit jurors off Craigslist or putting out a newspaper ad, I always forewarn attorneys that those methods will not yield a random sample. People who go on Craigslist to look for odds and ends jobs are often young and unemployed – not to mention that they have a certain mentality that may differ from your jury pool. Newspaper ads tend to attract the older, retired crowd, which is fine for a couple of your jurors but again, this will not match your demographics.
My preference, second to affording a recruiter, is to recruit by mailing letters to random people in the county and having them call in to get screened. When I do this work for attorneys, I cut the recruiter’s fee in half. And if you’re not hiring someone like me, you can always do this for yourself (although be sure you know how to properly recruit and screen or you may slip up on one word and not know you’ve tainted the focus group). The problem is always where to get the list of names. Listings from the DMV and voter registration would be wonderful as that is how jurors are chosen, but personally I’ve had very little luck getting anyone to release those records to me. A phone book is okay but again, you get many older people responding and may have to fill in some of the younger slots by other means.
And this is where my suggestion lies. If you have old jury lists, those are lists of people randomly chosen from that county – a perfect representation of the demographics you are after. If you keep all your jury lists (and you will need multiple, trust me, as you probably need to mail out 500 letters to get 20 good participants), then when a case comes up and you need to run a focus group either with a consultant (though I may be the only consultant that would take on the recruiting job this way) or by yourself, you will have the lists you need to cut down on costs.
One word of caution: Do NOT mail to the same people more than once. If you’ve used a juror once, do not re-use them.
So, bottom line, please keep your jury lists. And if you have any attorney listservs you participate in, you may want to spread the word or have your trial lawyer associations pile lists so that attorneys can borrow from them when needed.
February 6, 2012 · 4:26 pm
As advanced as humans are, we are still primitively just mammals belonging to a herd. Animals and people stay in herds because it provides safety. If one member finds danger, the rest of the herd is alerted. Think about being out in the African desert completely alone. Now picture having a group of people there with you. I would suspect your stomach felt very different imaging the two scenarios.
Jurors are no different. In mock trials and focus groups, I ask jurors what other information they think would be helpful. There is often one juror who wants to know what other jurors in similar cases decided – how much money did they give? The want to know the precedent. Why? Because they want to follow the herd.
You can use this mentality to your advantage in several ways. Some of those methods are taught in “Reptile” seminars with David Ball and Don Keenan and I would suggest attending to get more plaintiff-specific methods. Here, I want to mention some basics.
1. When talking to experts or witnesses, use the word “us” instead of “the jury.” For example, “Dr. X, can you explain to US how the blood vessels became clotted?” This puts you in the same boat as the jury and unifies the jury as one group.
2. Get jurors to see their own commonalities. You can start to unify jurors as a group early on in voir dire. Explain how most people who get jury summons don’t want to come but they all have something in common – they all showed up.
3. Frame questions for your experts in a manner that hints at what others may think. For example, ask experts, “so, most agree…?” This hints to jurors that others think one way and to be part of the herd, they better follow.
4. In closing, tell jurors “I wish I could tell you what other jurors in cases like this do, but I’m not allowed to.” This insinuates that what you say is in line with what other juries say or do. Greg Cusimano is very good at this method so I suggest reading up on his works as well.
To finish it off, I’m posting a video purely for entertainment purposes but it certainly demonstrates herd mentality:
January 12, 2012 · 3:22 pm
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.
January 2, 2012 · 3:57 pm
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.
Filed under Closing Argument, Focus Groups, Misc
Tagged as deliberation process, foreperson, groupthink, influencing jury deliberations, jury consultant, jury deliberation, process driven, trial consultant, verdict driven
December 19, 2011 · 11:00 pm
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.