The Trial Practice Tips Weblog

A Few Things to Know About Juries

In the April, 2008, issue of the Illinois Bar Journal, you'll find some interesting tidbits about juries in "Lessons from Jury Research," by Sara Parikh and Terrence Lavin.

Some examples--

• Juries care most about the "strength of the evidence" and make decisions on that basis, rather than giving in to pre-conceived biases or emotional appeals.
• Juries try to fit each bit of evidence into a "cohesive story"; if they can't do it, the evidence "tends to get dismissed or serves to reframe the story."
• Juries tend to discount expert testimony unless it is firmly rooted in the factual evidence.
• While lawyers must sometimes "emphasize and even repeat important concepts," juries quickly become frustrated by needless repetition.
• Even if jurors come to a trial with a particular bias in favor of the plaintiff or defense, these feelings are rarely so entrenched that they will predict the juror's decision about a particular case.

To learn more interesting lessons about juries, read the complete article at your nearest law library or online here (ISBA members only).

A New Set of Voir Dire Tips

In "Eight Tips for Better Voir Dire," John H. Mathias, Jr., weighs in with some good voir dire tips for the ABA Litigation Section. Here are the tips--

• Leave each prospective juror feeling good about answering your questions;
• Never talk down to any prospective juror;
• Beware of the "evil eye";
• Use voir dire to get the jury to embrace your expert witnesses;
• Ask potential jurors if they like crossword puzzles;
• Find out whether potential jurors are victims or individualists;
• Break the ice for a large damages claim;
• Don't ask silly questions just to please a jury consultant.

Read the full article to get the tips explained, then print it out to add to your voir dire file. The tip about experts is especially good reading.

Credit for the link goes to Celia Elwell, a paralegal in Oklahoma City who complies useful links for a widely-read email.

Blawg Review #127: A Roundup with a Jury-Selection Twist

Milwaukee trial lawyer and jury consultant Anne Reed gives the latest issue of Blawg Review a jury-selection twist in Blawg Review #127. The roundup of law-related weblog posts is organized around a set of reminders about jury selection, as follows:

• Assume nothing;
• Look for leaders . . .
• . . . and dissenters;
• Watch for points of view;
• Look for skills;
• Notice how they process information;
• Know what generational differences mean, and don't;
• Pay attention to the quiet ones;
• Remember they have lives;
• Not all jurors are like you;
• Some just want to get back to work;
• Learn the publicity, whether it's national . . .
• . . . or local;
• They want the big picture;
• If you're lucky, you'll have a juror artist;
• Make a good impression; and
• Remember the majesty.

Check it out. And remember that the Blawg Review weblog has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

Jurors Who Lie During Voir Dire: Trips for Drawing Them Out

Here's a post to read when you're gearing up for your next voir dire: "When Jurors Lie, Part II." It's from the Deliberations blog, written by Anne Reed.

When you're finished reading Reed's tips for exposing jurors who are lying to you about their biases, you can continue reading Deliberations for "law, news, and thoughts on juries and jury trials."

Avoiding Jury Duty -- Do's and Don'ts

Here's a little humor, if you want to call it that, from Dave Swanner's South Carolina Trial Law Blog: "How Not to Get Out of Jury Duty." Pretty unbelievable.

Jury Consultants: A Critical Look at Psychology Today

Even if jury selection remains a crapshoot, the process has come a long way since the days of Clarence Darrow, who counseled that Presbyterians are often "cold as the grave," Baptists even "more hopeless," while Irishmen are the opposite, "emotional, kindly and sympathetic"

In the current Psychology Today, the new science of jury selection gets a critical look in "Unnatural Selection," by Matthew Hutson--

Jury consulting has become a big business over the past three decades. Hundreds of firms now rake in several hundred million dollars a year. Many offer "scientific jury selection" services, deploying demographics, statistics, and social psychology to cull potential jurors and engineer the perfect panel of people. But as these gurus aim to extract sure verdicts from parties of unknowns, their grasp on the chemistry of human nature appears to require a working knowledge of alchemy . . .. Despite all the money and research poured into predicting and shaping jury decisions, to a large degree the state of the art remains just that: art.

The alchemists who practice the art, however, think it's more: they call it "applied psychology." About half of jury consultants are psychologists. The others are "hail from a variety of fields—business, law, marketing, communications, theater, statistics."

For anyone interested in jury selection, "Unnatural Selection" provides a good overview of how jury consultants work and what they're looking for in jurors.

Jury Selection: One for Defense Lawyers

One of the duties of the defense lawyer during jury selection is to identify those jurors with an anti-corporate bias. In the National Law Journal, Ken Broda-Bahm and Kevin Boully identify three types of anti-corporate bias, the moralists, the egalitarians, and the individualists. Each type bears a different, though related, type of anti-corporate bias.

Details are in the article, "How to Deal With the Many Types of Anti-Corporate Jurors." According to the authors:

Targeting the most extreme anti-corporate individualist in jury selection is critical. While some potential jurors will not necessarily give full voice to their attitudes on too-powerful corporations in voir dire, several questions can be used as markers of those attitudes:

• "How many of you have ever worked for a company with more than 500 employees?"

• "Who has ever served in a management position, supervising others?"

• "Who agrees with the view that the government should more closely regulate corporations?"

Questions of this sort may also be useful for plaintiffs' counsel, who will be working to preserve the very sort of juror the defense counsel is hoping to strike.

Mock Trials Online

Do you find mock trials too expensive? TrialJuries advertises itself as "Mock Juries for the Rest of Us." Here's what its website says--

Traditional mock juries are prohibitively complex and expensive for all but the rarest of cases. No longer! TrialJuries makes this valuable tool available to regular lawyers with regular cases.

How does it work?

Attorneys log onto the TrialJuries site and submit a case. The first step is to complete a short form with basic information to help you identify the case, and to let us know where it is pending so that we can assign jurors from the correct venue.

After that, you have a few choices: you can make a "Text" submission in which you add a written "statement of the case" from the side of both plaintiff and defendant. Or, you can submit audio or video files for your statements of the case (much like opening statements would be in the real trial). Add exhibits as well if you like. Then just add your Verdict questions and Feedback questions using our "form builder" and you're ready to "send your case to the jury."

The basic fee is $1,500. TrialJuries is also soliciting jurors, who are paid $30 to "review the attorneys' case submissions and answer their questions," which should "take about an hour."

I wonder if it works. The feedback would certainly be interesting, but if I understand the system correctly, it doesn't include the give-and-take and argument among mock jurors that's one of the best things about mock trials, that is, watching your case being picked apart in real time from behind two-way glass. There's nothing quite like that experience for learning about the strengths and weaknesses of your case.

Link from Robert Ambrogi's article, "Superior Legal Websites to Watch."

Questionnaires Used for Jury Selection--an Example from the Enron Trial

There was an interesting article in the New Yorker earlier this year about jury selection in the Enron trial. It featured a questionnaire written, in party, by jury consultant Robert B. Hirschhorn. A quote--

The form asks jurors whether they watch Bill O’Reilly, Rush Limbaugh, “MarketWatch,” or “Boston Legal.” It wants to know if they read Fortune, Forbes, or the Wall Street Journal. One of Hirschhorn’s “signature questions” is to ask jurors to name the three people they most admire. In this case, he says, “George Bush would be a draw.” He wants to know whether they handle their families’ finances. (“People who make those decisions are the C.E.O. and C.O.O. of their own homes.”) Further, are they good financial stewards, or did they trust people they shouldn’t have, as Ken Lay insists that he did? The questionnaire puts it this way: “Have you or your spouse lost a significant amount of money in the stock market in the past ten years? If yes, please explain what happened.”

Questions like these can be a great aid in jury selection, but only if potential jurors answer honestly. Will they? Some experts say you shouldn't assume the answer is yes. On the other hand, narrow, fact-specific inquiries on a questionnaire are less likely to lead to fudging one way or the other, especially if jurors aren't certain what their answers are "supposed" to be. It's one of the reasons questionnaires are very popular with some lawyers, especially in high-damage cases.

Jury Selection: Expressing a Point of View with Questions

In "Jury Selection: Address the Negative Head-On," I suggested that you should be able to address any troublesome aspects of your case or defense "in the form of questions." But how do you communicate difficult concepts with potential jurors with questions--questions designed to get the potential jurors talking?

Here's an example. Imagine a plaintiffs' lawyer with an auto case. In this age of tort reform, the lawyer knows that some of the potential jurors will be asking themselves why the plaintiff cared so little about "personal responsibility" that she decided to take the drastic action of filing a lawsuit. It's a common point of view, and it comes as no surprise to the lawyer that one of the jury panelists raises his hand and admits that ever since the McDonald's case, he's been so bothered by the idea of lawyers and lawsuits that he feels uncomfortable today in the courtroom.

Here is an example of the way this issue could be addressed with questions--

• You know, Mr. Panelist, I've heard a lot of complaints about that McDonald's case in the past few years. But I also know that some of the facts about that case are not all that well known. Would it surprise you that the woman who sued McDonald's was burned so badly that she had to have skin graft operations and had $20,000 in medical bills?
• Does it surprise anyone that McDonald's had more than 700 injury reports about its hot coffee before that woman became burned?
• Those are just a few of the facts that aren't well known. Who else has an opinion about the McDonald's case one way or the other? Raise your hands if you've heard about it. It looks like everyone has heard about it. What opinions do you have about the case?

It's good when you can get the panelists talking, even talking to one another. When one jury panelist speaks, you can ask another who's already spoken, "Mr. Panelist, how would you respond to that?"

Of course, if a potential juror admits to a strong bias against your side, you should lay a foundation to strike that potential juror for cause, but that's a topic for another day. Meanwhile, the jury panelists in the example are still wondering about that notion of "personal responsibility." The questioning continues--

• Let's move on from the McDonald's case and talk about the issue of lawsuits for a few minutes. Does anyone have a problem with the idea that people should expect to have to live up to their legal obligations under the law?
• Does anyone think that it's okay to cause harm to another person and not expect to be held legally responsible?
• One way that someone can enforce a legal obligation against someone else in our country is by using the court system. Does anyone have a problem with a person trying to enforce a legal obligation by using the court system?

These questions, of course, are only meant to illustrate the way that a particular point of view about complex issues can be expressed through questions designed to get the potential jurors talking. Though the example is presented from a plaintiff lawyer's point of view, it applies equally to the defense. During jury selection, both sides want to make the potential jurors comfortable enough with the process that they admit their prejudices and biases.