Jury selection: art or science?
This blogger questions whether jury selection is an art or a science…easy: BOTH. There is no substance to this article; in fact, it isn’t really an article, more of a question posted to readers. But the answer is both. Litigators who are silled in jury selection treat is as more of an art. Jury consultants use more of the science in the best case scenarios and the art in instances when the science is not available. The crapshoot aspect of predicting human behavior pops up when voir dire is limited to 5 questions…another article.
The sum of its parts…
A great illustration here on why it is critical to look at your panel holistically. The jury is composed of individuals that can, and often do, form strong bonds. Evaluating only the individuals is shortsighted.
Work/life balance
I love this article about working from home. In fact, I am often more efficient working from home because there is far more for me to do here so I must use my time wisely.
Standardized background checks for jurors?
This is an interesting article about doing background checks on prospective jurors. In New Mexico, this is somewhat standard in criminal cases. (In Boston too.) However, in New Mexico, the prosecution does the checks and apparently is not always obligated to share the information with the other side. (Not everyone has access to the database.) Some noted that this is an advantage that one side has over the other. This system of doing background checks has some merit because in several instances, jurors have been caught misrepresenting their criminal backgrounds. In a criminal case, this is something counsel would want to know and could make a difference in a juror’s perspective on the case. But is this something that should be standardized everywhere? That is a tricky question. On balance, it is an important piece of information about a juror who might decide the fate of someone else facing criminal charges. But, as Mr. Anthony pointed out in the article, it could create a reluctance of jurors to be forthcoming in voir dire, questionnaires and even showing up for trial.
Look for leaders
In Federal Court, as I have mentioned, attorney conducted voir dire is very limited, if allowed at all. When faced with selecting a panel in these situations where I know very little about the prospective jurors, I pay a lot of attention to the potential leaders.
The leaders on a jury can hang a panel, persuade the others and take the reigns and steer the others to a high damage award. Sometimes you want these attributes. Of course. But if you aren’t confident about which way your leaders will vote, be very careful about leaving them on the panel.
Here are some things to look for in assessing leadership potential:
Occupational leadership. This includes jobs such as senior managers, teachers, salespeople and union stewards. In addition, look for people who have leadership roles within the community, e.g., volunteer organizations, business organizations and community/church groups. Someone who is president of the PTA or co-chair of the local food bank board is not afraid to drive the deliberations bus.
In addition to individuals, I take a holistic view of the venire and consider alliances that could form. There is strength in numbers and an alliance of 2-3 jurors on a panel of 9 can be disastrous. Alliances are generally formed by people with similar work histories or current occupations, cultural or racial minorities within the panel, minority genders, I.e., 2 women on a panel full of men, and alliances are sometimes sparked by sitting next to someone for several weeks. 2 jurors who themselves may not exhibit strong leadership traits might form a formidable alliance.
Finally, look at body language and verbal traits. Jurors who raise their hand in response to every question are more likely to talk a lot in deliberations. Jurors who are active listeners and nod a lot and roll their eyes and generally react more are more likely leaders than the ones slumped down, avoiding eye contact and looking scared and nervous.
Consider all of these issues when putting together your jury in terms of who you want to lead your charge in deliberations.
Big dollars
The Pfizer settlement is interesting to me. Obviously this is a huge number and the evidence Pfizer faced was bad. And, Pfizer clearly wants a clean slate to move forward with the Merck deal. I wonder if there was any jury research that supported this kind of settlement? (Anyone know?) I wonder if a jury would have gone this high? Pfizer can absorb this settlement in terms of dollars likely much easier than it can absorb perhaps any hit to its stock or reputation. Time will tell. I hope their PR team is working overtime. So far it doesn’t appear that way.
You can lead a horse to water…
I just got off a trial experience that was such a shining example of the problems attorneys have with voir dire. My client didn’t want questions, he wanted “topic areas” (after I submitted 2 1/2 pages of suggested questions). I can appreciate this, as it is difficult to be convincing when the questions aren’t your own words. But, truth be told, he wanted to ask me my opinion but wanted to do what he wanted to do, which was what he has always done. But that is not really the point of this post. In total for both sides, there were 5 lawyers participating in voir dire. This was federal court, so we were all lucky we had any voir dire. Of course I go in thinking how great this is because generally in federal court you know the jurors’ marital status and occupation. I am thinking we can get serious and really ask some key questions. At the end of the process, which took more than 3 hours total (lifetime in federal court) not one attorney had asked what type of law the lawyer in the front row of the venire practiced, what type of job duties and responsibilities the younger man in the back row of the venire had at his job, which was in the same industry as the companies involved in this litigation, if anyone had ever purchased the product at the heart of the litigation–forget about any positive or negative experiences with that product. 5 lawyers “questioned” the panel. 5. The judge even admonished lawyer number three for repeating what everyone else had already covered. We get to the part where we need to exercise our strikes. This terrific judge gave us about 15 minutes or more to discuss and let me tell you, the conversation at counsel table was filled with much more uncertainty than confidence. Mostly on my part. I wanted to lecture everyone on the missed opportunities but instead had to use some strikes on people that may have been great people because we didn’t know anything. Fingers crossed on this one. Counselors, please ask questions. Please. Even if just to humor your consultants.
They won’t buy the cheesecake! Really.
I was hired on a case recently for trial preparation consulting: opening statement rehearsal, theme development, trial strategy, voir dire, jury selection and witness preparation. Basically everything except jury research. I was excited because it isn’t often counsel wants assistance in all of these areas and most of these are overlooked in trial prep. So I fly out there and everything seems to be going along. I had read key depositions and worked with counsel on themes and trial strategy prior to my trip. I was told there were 3-5 witnesses who needed work. Terrific. I love witness preparation because no one ever thinks they need it and counsel rarely thinks much about witnesses until 2 days before they hit the stand. And, when that conversation occurs it generally revolves around re-reading a deposition and who is going before whom. Fantastic. I was ready to hit the ground running. These are the little things that make a trial go smoothly.
What happened? Not much. No one on the team ever had “time” to work with these witnesses. I do not like to work with witnesses outside the presence of counsel for obvious privilege issues, so I had to have someone with me. I even suggested just some associate who did not really have to know anything about the case. Just a warm body with a law degree. Anyone.
There were 3 “prep” sessions. Always with the junior partner who had never tried a jury trial before. I was happy about that because I figured it would be a good training session too. Turns out she was not open to any training. She never seriously cross examined the witnesses and she completely dismissed any fears and concerns they had about testifying. (Telling a witness who is extremely nervous about testifying that “you will be fine” is not helpful.) Some of the corporate defendants I was supposed to work with were also named defendants. Several people had problems. In post-trial interviews, jurors mentioned those problems. The very same issues I wanted to work on with them. What did I learn from this? I learned to be more vocal about what the witnesses need after flying across the country only to have counsel go home at 6:00 and say “we don’t have time today.” I learned that counsel is generally woefully unprepared to deal with the many anxieties with testifying at trial–some real, some perceived–all valid.
Mock cross examination, the tougher the better in some cases, goes a long way in helping jurors understand that they CAN do it and do it well. If counsel goes into trial after spending 15 minutes talking to them about what “might” be asked based on their deposition, their witnesses will not be prepared. Reviewing the facts and depositions is only a small part of preparation. Dealing with anxieties, staying on message, dealing with physical affects and tough facts are critical. Ignoring these issues equals witness who perform poorly. Jurors can forgive one poor performer. They have a harder time forgiving 7.
I don’t know how many times trial consultants have to say this. For us, having a great thematic opening, stellar counsel, some great arguments but mediocre witnesses is like leaving out the sugar in the cheesecake. It looks like a cheesecake, but people won’t buy it because it doesn’t taste right.
Been completely slammed with work
I hope to get back to this shortly. That is the problem with blogs…you can never keep up.
