OUR SERVICES
It is often called “scientific” jury selection,” as if the addition of that first word somehow guarantees an desirable trial outcome. Truth is, there’s little that’s scientific about jury selection, and the term “art” applies more than that of “science”. Indeed, quick perusal of the various handbooks in this area suggests that the so-called wisdom in this area is little more than a collection of rank prejudices that are shared by attorneys. Here for example, are the comments of the outstanding attorney, Clarence Darrow:
“I try to get a jury with little education but with much human emotion. The Irish are always the best jurymen for the defense. I don’t want a Scotchman, for he has too little human feelings; I don’t want a Scandinavian, for he has too strong a respect for law as law. In general, I don’t want a religious person, for he believes in sin and punishment. The defense should avoid rich men who have a high regard for the law, as they make and use it. The smug and ultra-respectable think they are the guardians of society, and they believe the law if for them”.
Fortunately for his clients, Darrow’s rhetorical skills and insight into the human heart and mind compensated for whatever such stereotypes he brought to the jury selection task.
If there is very little that is scientific about jury selection, and much that reeks of banal stereotyping at best and dangerous prejudice at worst, how then does one select a jury? Carefully, with clear goals in mind, a willingness to think carefully about questions to be posed in voir dire and to listen equally carefully to answers. It is also important to recognize that the members of a jury constitute a group in which group dynamics as well as individual inputs will be determinative. One selects a jury differently if one hopes the jury will understand arguments rather than sink into confusion, and if one counts on them to assess proffered facts and arguments critically rather than accept them at face value. Moreover, one selects differently if one is hoping to find a juror or two who will not succumb to group pressures and if necessary produce a hung jury than if one is hoping to find a congenial group in which those in the minority will readily yield to those in the majority. Finally, there are tradeoffs to consider; the very qualities that may make a potential juror scornful of anything that smacks of being a “frivolous lawsuit” may make that juror favor a high plaintiff award if he or she is convinced that a suit is far from frivolous.
In short, one cannot select a jury without reference to the structure of the case presentation that is decided upon. If, for example, one intends, , to strike a high moral tone in the course of one’s presentation, one hopes for a jury that has that has moral “ears.” If one is defending against questionable allegations by a governmental agency, or if one is claiming mistreatment at the hands of government or big business, one looks for a jurors whose life experiences have given them reason to mistrust government and, more generally, those with power and influence. There is a great deal of scientific knowledge about processes of individual inference, judgment, and decision making, and about group dynamics and jury processes in particular, that can be brought to bear in jury selection—but application of that knowledge in the task at hand requires clinical skills, social skills, and intuition tempered by experience.
Increasingly, and in order to conserve time, courts are encouraging the use of jury questionnaires as part of voir dire. While the demographic portions of such questionnaires (name, address, age, health status, etc.) can be taken “off shelf,” the case-relevant questions must be tailored to the specifics of the litigation. Preparation of such questions poses all of the challenges that arise generally in questionnaire construction, particularly the challenges of being certain that the questions are clear, and in some circumstances, that the intent behind those questions is not obvious to either the potential jurors or the opposing attorneys. Skills and insights honed in survey and laboratory research are invaluable here.
It is worth remembering that one never “selects” a jury. Instead one rejects members of a venire. This distinction is important. One has absolutely no control over the composition of venire; it is not an uncommon occurrence for membership of the venire to provide no jurors that match one’s a priori specifications. For example, when one is hoping for a jury that includes members who combine a level of education that make them likely to understand complex arguments with life experiences that make them aware of discrimination and abuses of power, the venire frequently offers only individuals who lack one or both of these qualities. This is one of the reasons for which, while Trial Analysis Group does its utmost to seat a suitable jury to the case to be presented, we stress proper trial preparation – making the relevant presentation understandable and appealing to jurors in general, arming them to question, and where possible rebut, the arguments they will hear presented by the other side.
Whether a case is won or not depends as much on what the jury understands and feels as on the law itself. Some would say, more so, since jurors can be remarkably adept at reaching the verdict they think appropriate even when they must exercise some latitude in interpreting instruction about the law they receive from the Bench in doing so. The psychologists at Trial analysis Group help develop and test ways of presenting both factual and legal arguments in ways that are understandable, interesting and memorable, rendering them likely to capture a jury’s attention, and ultimately each juror’s vote.
The task is to blend facts, testimony, and argument in a way that makes contact with the life experiences, personal values and motives, and cognitive “schemas" that provide the lens through which a case is seen by jurors (and to some extent judges as well). We sift facts and arguments, search for useful and striking metaphors, parables, familiar historical events, and seek other rhetorical devices to provide a basis for understanding a case as an organic whole rather than leaving jurors with a bewildering morass of evidentiary minutia and conflicting contentions.
This description of the goals of trial preparation is one with which few skilled and seasoned attorneys would disagree. Yet as a trial date approaches, even attorneys who appreciate the importance of creating and testing a well structured presentation of their case may become too bogged down with other pressing matters to give this task the attention it deserves. Indeed, it is in the nature of the efforts that go into discovery and preparation of pre-trial motions that small matters demanding immediate attention become magnified, and even the best attorneys can lose track of the overall outline of the case.
Trial Analysis Group consultants can provide invaluable assistance in this regard, using frank discussions and focus group testing to develop larger themes and keep focus clear. In our experience, it is this service, all the while responding to real-time demands to develop specific arguments and rebuttals in dealing with potentially “bad facts” and potentially persuasive arguments available to the other side, that is most welcome. Less welcome initially, but potentially even more importantly, we help to anticipate what we believe would be the most persuasive framing of facts and arguments of the other side’s case. And, through careful analysis buttressed by focus group testing, we help attorneys to develop effective counter arguments and counter-framings.
It is our experience, and that of many leading attorneys, that the opening statement is the single most significant communication in a jury trial. Beyond providing a summary of the case to be presented on behalf of the client, i.e., what it is “about,” it creates an interpretive framework for the juror. During the testimony to follow, it is within this framework that the facts of the case are then fitted and their relevance, and even their meaning, understood.
Ideally, an opening statement creates a meaningful and memorable narrative or story that gives jurors a commonsense appreciation of the facts they are about to hear, and why those facts matter, both in terms of the contentions of one’s client and the relevant issues of law. In other words, the opening statement should allow the juror to understand the facts and events at issue as a human drama in which rational, albeit not always wise, individuals acted the way they did for motives, good or bad, which make sense in terms of the lay persons “intuitive psychology.”
Metaphors and analogies that highlight the relevance of facts consistent with a particular dynamic interpretation of a case, and diminish attention to facts inconsistent with that interpretation, are often best introduced during opening statements. These devices can then be alluded to in many subtle ways in the examination of witnesses and exhibits, and made explicit again during closing statement. Here too, especially with inexperienced jurors, it is important not to burden memory or sew confusion. The opening statement should give jurors the clear sense that your side is the one that wants them to appreciate the matters under dispute in terms they can understand, and that your side is confident that the better they understand the case the more reasonable it will be for them to render a favorable verdict.
From the outset, we encourage clients to spend a good deal of time exploring and refining the opening statement. Indeed, such preparation can play an important role in focusing the attorneys’ own view of the case and the persuasion task ahead. Trial Analysis Group brings a deep knowledge of the psychology of comprehension, learning, attention, and motivation to that task.
Whereas opening statement sets the stage for understanding and persuasion, closing statement provides a final opportunity to win the day. The attorney now is free to summarize arguments and rebuttals as well as facts, to persuade jurors on the fence and, perhaps even more importantly, to give jurors favorable to one’s side the ammunition they will need to persuade a minority, or hold firm and ideally win over a majority of those favoring the other side. Ideally, opening and closing statements will mesh, the closing reminding the juror of the interpretative framework that was introduced in opening, and reinforced in testimony and cross-examination. Inevitably, however, a trial unfolds in some ways that one had not anticipated; the other side has won its share of damaging admissions, or scored points with the introduction of fact or arguments that now need either to be rebutted or made to seem inconsequential in the larger scheme of things. Once again Trial Analysis expertise can be brought to bear in this effort.
Increasingly, statistical evidence has played a major role in the courtroom most obviously in celebrated criminal cases involving DNA evidence, but also in complex civil litigation involving patents, trade secrets, copyrights, and in anti-trust allegations. While statistics provide a powerful tool for organizing evidence and supporting claims, they can be daunting for lay jurors and even for judges. Even those with substantial experience in a given domain are apt to approach statistical issues and argument with great care, and sometimes with befuddlement.
But, presented properly, statistical evidence can clarify. Ultimately there is little about statistical evidence of the sort presented in the courtroom that cannot be presented in a way that engages rather than overwhelming or frustrating a jury.
The same can be said about expert testimony on matters of technology, and other fields calling upon specialized technical knowledge such as medicine or finance. It is not that jurors can readily be given a deep understanding in such matters. Rather, it is that there is little point in presenting evidence or testimony that cannot be understood, at least in terms of the conclusions being drawn, and be seen as an honest attempt by the expert to enlighten rather than obscure. Trial Analysis Group has experience as educators as well as advocates in these regards, and can help in securing experts to prepare exhibits that aid understanding.
The source from which testimony comes is often as important as the testimony itself. Gold rings in pigs’ snouts, the adage goes, diminish gold’s beauty. In much the same way, excellent testimony may be diminished by an unseemly witness. It is worth spending time to consider how a witness will strike a jury, and what can be done to improve his or her self-presentation.
In one of our cases, the CEO of a major organization was to spend a large portion of each day at the defense table, thereby making clear the magnitude of the “stakes” of the case of his company. Ultimately, he would testify, and upon his testimony a considerable portion of the outcome rested. The CEO was himself a well-spoken, enormously handsome and downright dashing man—in many ways, the ideal witness. Yet, his sexy demeanor and flashy manner of dress risked turning some jurors against him, particularly those who had marital difficulties or just adversely affected by the “persona” he projected. The attorneys recognized this, but were at a loss to raise the matter. Trial Analysis Group consultants successfully took on the task of convincing the CEO to wear a prominent wedding band (he was, in fact, married), to accept a shorter haircut, to wear more conservative clothes and a less dazzling wristwatch, and to project an altogether less dashing image. The jury loved him.
Witness liabilities, of course, are not limited to matters of appearance or dress. Often a key witnesses’ manner can be needlessly abrupt and seemingly discourteous. Some witnesses mumble. Others appear arrogant, or too-practiced and glib; still others sour and dour. All of these are characteristics that can be (and have been) greatly and easily altered.
Real life offers little preparation for the well-crafted cross-examination, and the courtroom has the capacity to intimidate the most fearless of folk. We can work with witnesses intensively; we reduce their anxieties about testifying by desensitizing them to this novel situation. In addition, we work with witnesses so they may best address those pesky “bad facts” that inevitably present themselves in complex litigation. No matter how innately confidant and likeable witnesses may appear, they gain by having some practice before presenting to a judge and jury.
Sometimes, of course, one cannot (to quote another adage with a porcine reference) “make a silk purse from a sow’s ear.” Sometimes one must work with what one has, and try to mitigate the deficiencies, or better still, to turn them to one’s advantage. In one memorable retrial of a high technology case, we were confronted with key witness whose testimony was vital to our contentions, but who could not be dissuaded from digressing into long lectures rather than answering questions. We knew from the original trial that he had created a terrible impression on jurors, even when he answered questions posed by the attorney who had called him as a witness, to say nothing of how he had fared during cross-examination by the other side.
Confronted with this dilemma we did two things. First we made sure that our attorney did some “inoculation” of the jury by introducing this witness to the jury as a “real character” and a “pioneer” in computer technology—a former college teacher (which he was) who loves to talk about the design of computer chips, so much so that he sometimes forgets he is not in a classroom and is in a courtroom testifying in a case that is of vital importance to his employer.
Second, we suggested to our witness that he first answer cross-examination questions with a simple “yes”, “no” or, as he often preferred, by saying simply that the question couldn’t be answered in simple “yes” or “no” terms. Then, we instructed him, he could add “would you like me to explain?”, thus giving opposing counsel the choice of two unpalatable options: either to proffer to our witness an invitation to go on at some length, or to deny him this opportunity and risk being seen as attempting to quash important testimony. This strategy had the additional advantage of giving license to the attorney who had called him as a witness, in redirect, to ask him to now “tell the jury what you wanted to explain earlier but were not allowed to do by the plaintiff’s lawyer.”
The jury found that he was indeed, as promised, a “real character” and that he did tend to launch into windy digressions when given leave to do so by his questioner. But they also saw him as highly credible. He played a crucial role in securing a favorable verdict.
“Focus group” simulations, or “mock trials” offer attorneys an opportunity to test their ideas about the way arguments and facts, both favorable and unfavorable, will be understood by jurors. It is essential to understand that simulations do not predict case outcomes. Moreover, reactions to specific facts and arguments may be different for reasonably well paid recruits participating in half-day or full-day simulation than for poorly paid jurors, sitting through days of testimony and legal jousting, who would rather not have been summoned to such duty. Nevertheless such simulations can be an indispensable part of trial preparation. They offer attorneys a precious opportunity to discover errors in their assumptions about jurors’ concerns, emotional reactions, and interpretations; similarly, they uncover potential weaknesses in their own arguments or in their planned rebuttals to the facts and arguments likely to be presented by the other side. Sometimes exposing clients and attorneys to the reactions of disinterested average citizens of the sort likely to be on a jury can even deflate unrealistic hopes and expectations, and serve as a prelude to settlement conferences. When an attorney believes strongly that a certain jury composition will greatly enhance (or preclude) chances of a favorable outcome, that belief can also be tested in the simulation process.
Jury simulations are useful in direct proportion to the degree to which they are veridical. Composing a mock jury from the staff of your law office, or with a group of undergraduates at a neighboring college in a handy classroom, is better than nothing. But in significant cases, more is required—that is, participants who are paid, jury-eligible, strangers, who owe you and your client no allegiance (and, for as long as possible, don’t even know which side you represent). Veridicality can be increased by using a setting that resembles a court-room and even by using a robed “judge” to press upon the mock jurors the importance of their task.
It is particularly important to make sure you present the strongest, most persuasive version possible of the other side’s case. (Trial Analysis Group takes particular pride in formulating the interpretative framework and rhetoric of the other side in a way that challenges the case one intends to present). If you can make significant inroads against that version, you are likely to fare well in the face of a less challenging version. Moreover, if a strong version of the other side’s case impresses the participants, you learn something about the shortcomings of your own case in time to do something to remedy the situation.
Worry, we tell our clients, when you win handily in a jury simulation: you may be lulled into a false sense of security and have failed to anticipate an important strategy available to the other side. (If they didn’t think they could win with the facts and arguments on hand, they would be pleading for a settlement instead of girding themselves for trial).
Well-designed questionnaires administered to participants before and after they hear the opposing contentions of the two sides in the case can be invaluable—both in giving one a sense of reactions “uncontaminated” by exposure to the reactions of other jurors, and in allowing one to create small groups with particular “splits” of favorable and unfavorable jurors for subsequent deliberation. That deliberation should not be rushed. You can gain useful insights by observing (through one-way mirrors and/or video equipment) which arguments and facts are presented spontaneously during the deliberation and how they are received, as well as which arguments and facts seem to be ignored.
Trial analysis Group has extensive experience in conducting mock trials and less formal, but often equally effective, focus groups. Indeed, we bring to the task many years of experience as researchers wise in the ways of experimental design and methodology and skilled in avoiding potential artifacts and sources of invalidity. We are particularly skilled in conducting post deliberation interviews with our mock juries (and knowing when it would be useful to interrupt a deliberation to find out exactly why it has veered off in one direction rather than another). In such interactions we make good use of “counterfactuals” and “hypotheticals”, along with direct questions about the bases for judgments –“how might your opinion change if you knew or became convinced that such and such was true”…”what would you think if the defendant had told you this or that”…”why weren’t you convinced by argument, X,Y, or Z.” In short, while simulations are quite expensive and demand a lot of hard work to do properly, we make sure that our clients get their money’s worth.
A central hazard of this profession arises from the fact that most cases never go to trial, and that plea bargains and settlements are the rule rather than the exception to these kinds of cases. As a result, many attorneys spend their time busily pursuing discovery and settlement, reluctant to devote time to careful planning for the trial that is unlikely to occur. Many times such attorneys are fortunate, and reinforced for taking this gamble—their case does not, in fact, proceed to trial. But, too often, settlement talks fail, offers on the table from the other side are non-existent or patently unsatisfactory, and going to trial is the best option for the client. And attorneys, in such cases, find themselves dangerously underprepared.
Trial Analysis Group feels strongly about preparation in these matters. In fact, we frequently reject a case if the anticipated date of trial is less than six months away. We believe that the investment of time, money, and energy called for in trial preparation serves the best interests of the client. Focusing on a case in order to prepare for trial is excellent preparation for settlement talks and for bargaining not only “in the shadow of the law” but also with some insight about the outcome likely to be obtained when jurors rather than lawyers consider the case.