The jury selection process is an intriguing — and high stakes — venture into the subtle terrain of human nature. As you meet and interview all members of your venire, you’ll primarily be looking for reasons to de-select the individuals who bring a bias that will run against your case. Here are five factors that you should explore in the course of empaneling the most effective jury for your case.
Much has changed in the world of trial consulting over the years. These changes have included large increases in overall services and even putting more focus on factors outside of the jury. When looking at the trial consulting over the last decade, however, it becomes obvious that technology has created the biggest shifts in trial consulting.
Before understanding how significant of an effect technology has had on trial consulting, you must first recognize why such technologies were necessary. Americans sometimes have a propensity for creating solutions for nonexistent problems, but this wasn’t the case in the trial consulting world. In fact, the major issues came directly from professional legal experts themselves.
Imagine how much you know about your case that the jurors simply don’t have the appropriate education to understand. Once this issue is recognized, you can start using technology to improve your trial outcomes.
One of the greatest ways technology has affected trial consulting is by helping you to understand your audience. Sure there are spectators, bailiffs and even an opposing attorney in the courtroom, but they’re not your main audience. The jury needs to be your primary focus, and since they’re not trained in the world of law, it’s your job to speak to them in a language they understand.
One great innovation in trial consulting came thanks to the World Wide Web: online focus groups. Instead of figuring out the logistics of getting a few dozen people into a room at the same time, programs like Jury Confirm can handle everything online while still creating a realistic courtroom environment for your “jurors.”
It’s this type of technology that can help you speak to jurors in that mutually understood language. Too many attorneys are left saying “I can’t believe that’s important to them” or “I’m surprised they don’t understand that argument” after using online focus groups. Fortunately, this shows you where your shortfalls are, and from that point, you can figure out exactly how to correct them.
The difference in legal knowledge between you and the jurors is obviously an issue, but even something as simple as courtroom setup can cause your best points — no matter how well explained — to get lost in translation. The ability for trial jurors to be able to quickly see and comprehend visual evidence can sometimes be removed entirely due to courtroom setup.
Thinking deep into your trials, imagine for a moment that a juror cannot comprehend a visual exhibit because it’s excessively detailed. Even something as simple as being unable to see every word on a slide can stop jurors’ learning in its tracks. Just considering these two examples is enough to understand how big of a part courtroom setup plays in your case’s success.
As technology developed, however, even these issues started to fade away. By using the video, image and document presentation software in our courtroom/war room setup, you can ensure that jurors see the full picture every time. The presentation screen allows for interaction with the exhibit, so you and your witnesses can get the point across even more effectively.
Take a moment to learn more about our courtroom setup services and graphics consulting services.
The American legal system prides itself on the claim that justice is blind, but being blind means your eyes are closed. It means you’re at the mercy of others. What could be more terrifying than putting your case into the hands of 6–12 people you have never met and know nothing about?
Fortunately, you don’t have to live out that frightening scenario. Litigation consultants use their expertise to provide legal professionals and their clients with a look inside the mind of potential jurors. These insights include case perceptions, relevant analogies that will help get the point across and understanding individual jurors’ life experiences to better comprehend what impacts their attitudes.
This trial consulting overview provides only a snippet of what technology has done for the profession. Learn more about our jury consulting services to see how you can make your message crystal clear for the jury. And when you’re ready to take happenstance out of your case’s equation, contact us for a free case consultation to see how you can benefit from a litigation consultant.
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A chicago criminal lawyer learns a new language in law school. That language is dense with theory, legal jargon and even a few doses of Latin. While law students are encouraged to provide minute analyses of potential arguments or points at issue in every fact pattern, the legal practice areas are quite different, especially in a courtroom. In court, your audience is not a law professor, but a juror whose day-to-day life experiences may have little to do with the law or the subject matter of the case.
Lawyers must develop a rapport with jury members within the confines of trial rules, while clearly conveying their arguments to these decision-makers who may have no legal training. There may be only limited instruction on the technical aspects of the law. Understanding the unique perspective of jurors on a legal case is crucial to winning a verdict. To improve your chances for success, consider not only the strength of your argument but how to get your message across. To ensure that you are properly conveying your message, here are 3 trial strategy tips to consider.
If a case goes to trial, you can rest assured that there’s an arduous process ahead of you. After all, if the case was as “open and shut” as you sometimes hope, there would’ve likely been a plea deal or settlement before it ever got to trial. Once a case ends up in the courtroom, everyone is on an equal playing field. No matter how great an attorney is or how obvious the eventual verdict seems, there are no guarantees. This is why legal professionals around the world now utilize jury consulting services to gain the upper hand.
Jury selection is perhaps the single most important component of court proceedings, especially in civil cases. Any mistake during this early step can literally make or break your case. Even worse, you may not realize you’ve made the mistake until it’s far too late to rectify the issue — and save your verdict.
To avoid any common mistakes, use these five tips to improve your jury selection for civil cases.
The last thing you want is to find out that your opponent has grounds for appeal because you made a mistake while selecting your jury. Even worse, since both parties can appeal a civil judgment, you’re not protected simply because you’re on the defending side of the courtroom, unlike in criminal cases.
Every state and local jurisdiction has its own set of rules for jury selection, but these are some of the most frequent and universally applicable:
In most cases the size of your jury will be 6 to 12 jurors, so make sure you’re planning your choices accordingly. Six is the de facto standard in most jurisdictions, but you’ll often have grounds to ask for a larger jury during negotiation with the presiding judge and your opponent counsel.
You’ll usually have to designate a pool of alternate jurors who will only take their place in the jury if a primary juror is removed or excused from the proceedings for some reason. Accordingly, you want to make sure your alternates are just as good a fit for your side as the primaries are because it’s perfectly possible they’ll become primary jurors themselves.
Both sides of the case will have a chance to ask jurors questions that might reveal why they’re biased or otherwise unfit to serve as an objective observer of the proceedings. In that case, you’ll have a number of chances to dismiss a juror for cause.
However, you’ll also have a set number of chances to dismiss jurors with a peremptory challenge, effectively “because we want to.” Make sure you’re not wasting a peremptory challenge on a juror if you can argue they should be dismissed for cause instead.
A juror profile lets you create a statistical outline of your most probable beneficial and detrimental jurors. Juror profiles can include basic information like simple demographic data, but for the best results it should also include information that’s tailored to your specific case. For example, if your case involves a specific industry, you’ll want to make sure your juror profile can identify prospective jurors who are likely to be sympathetic or antagonistic to players in that industry.
Juror profiling is a complex endeavor. Learn more about how juror profiling research can help you with the jury selection process.
Most of the jurors you’ll be in contact with are going to feel as if they’re suffering a burden because they were selected for jury duty. Accordingly, you need to ensure that you’re showing appreciation and respect for the time they’re being forced to give you. Doing so will establish a good relationship and can make them more likely to answer your questions honestly and openly.
Conversely, getting on a potential juror’s bad side can make them hostile to your case. In the worst scenario, they may even keep that hostility a secret and only reveal it by voting against you in the deliberation room.
Whatever the case, you’re going to struggle unnecessarily to elicit biases and disqualifying factors during juror questioning if they’re already hostile towards you.
In every jury selection process your goal is to find people who are clearly disqualified to objectively evaluate a case because they have some relation or connection to the case’s players or context. However, you also need to ensure you’re assessing their “one degree removed” experiences.
For example, if your case involves a large construction company, your first step is to find out whether a juror has any connection to the construction industry. But you’re not done there — you also need to find out how they’re connected to any one degree removed factors. For example, have they been involved in a civil lawsuit for a large company in any industry? Have they ever had a bad experience with home renovations, or plumbing, or even any contractor of any type?
Their answers to those questions could reveal a bias that’s worthy of dismissal.
Always remember that you’re not just monitoring the jurors’ biases, you’re monitoring yours as well. Be aware of any stereotypes that might be blinding you to the actual opinions of jurors.
By monitoring your own perceptions in those areas, you can ensure that you’re genuinely finding the best jurors, and not simply those you’d expect to be the best.
With proper planning and good execution, you can ensure you pick the jury that’s most likely to rule in your favor.
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Litigation (the process of resolving civil disputes through the public court system) can be complex; even trained lawyers occasionally forget some terminology. That is why we put together this extensive guide on litigation terms that you’ll need to know for trial.
by Hiliary Remick, Litigation Consultant
Here are a few familiar jury instructions with which, in one form or another, Courts all over the country have been known to admonish jurors…
• You have now been sworn as jurors in this case. I want to impress on you the seriousness and importance of serving on a jury. Trial by jury is a fundamental right.
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• Do not do any research on your own. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments.
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• It is important that you keep an open mind throughout this trial. Evidence can only be presented a piece at a time. Do not form or express an opinion about this case while the trial is going on. You must not decide on a verdict until after you have heard all the evidence and have discussed it thoroughly with your fellow jurors in your deliberations.
Does it really work? Do jurors take these cautionary words to heart? Maybe not so much as we might like.
In Philadelphia, defense lawyers for former State Senator Vincent Fumo recently moved to bring a halt to jury deliberations and remove a juror after he posted remarks on Twitter.com and Facebook about progress of deliberations. The juror had told his readers, among other things, to “Stay tuned for a big announcement…”i The former Senator, on trial for Federal corruption charges, said the juror had violated court instructions not to disclose the status of jury deliberations.
Close on the heels of that story, we learned that a juror in a Fayetteville, Alabama courtroom had used the latest Twitter technology to send “tweets” or short updates on the status of jury deliberations against defendants Russell Wright and Stoam Holdings in a civil trial. His remarks included comments like these:
• “So, Johnathan, what did you do today? Oh, nothing really. I just gave away TWELVE MILLION DOLLARS.”
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• “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter….”
The defendants, faced with a 12.6 million dollar verdict, are seeking a new trial on the ground that the juror’s trial twitters may have impaired his decision making capacity during the trial.ii
It is apparent that jurors can now make use of Internet technology not only to report on proceedings in the deliberation room, but also to perform independent research about their case, the parties, or the legal or other issues before them.
The notion that jurors are not supposed to conduct independent research about a case is a basic tenet of the jury system. We want jurors to form their decision strictly on the basis of evidence which a judge has already deemed admissible. But the Courts and litigants face a wave of tech-savvy, Generation X and Y jurors who routinely rely on computer and cell technology to take in most of their information. The information jurors could gather through Internet searches, however, not only draws from sources outside the permitted evidence, but might also be inaccurate, outdated, or unreliable.
Wikipedia, one of the well-known online information sources identifies itself as the “Free Encyclopedia.” Because it is a “wiki” (a collection of web pages designed to enable anyone who accesses it to contribute or modify content) its information is only as good or reliable as its contributors. Jurors who search for case information in Wikipedia, or through any Internet source, might gather information that is not just outside the parties’ settled evidence, but also inaccurate or off-the-mark. Furthermore, the Wikipedia juror might misinterpret the information he finds there. If a juror “Googles” one of the parties, and tries to draw a conclusion about the lawsuit he is evaluating based on what he discovers online, there exists a real risk of prejudice, misunderstanding, or both.
Stories like those from the Fumo and Stoam cases suggest that this trend will only continue to grow.
What are Jurors Up To??A wide range of technology now exists for jurors to use or misuse in the Courtroom, the restroom, the living room, and even the deliberation room. These include:
• Google, Wikipedia and the Internet in General. Most jurors are now thoroughly familiar with the search engines, online encyclopedias and the entire internet as a tool for searching information – even if it is inaccurate or inapplicable to a legal case. These can be accessed from home and portable computers, and from cell and “smart” phones as well. Such “research” could be conducted in a lunchroom or restaurant, a hallway, or at home after hearing a day of evidence.
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• Facebook. Social networking sites like Facebook and MySpace are well-known online sites that could allow jurors to reach out to others and report on trial information and developments, or to investigate litigants or background information about an ongoing case.
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• Twitter. This social networking and “micro-blogging” service could allow jurors to send and read brief information updates or text-based posts on the fly. The service can be used through a computer or SMS phone texts.
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• Instagram. This photosharing platform could allow jurors to leak photos from the trials to their instagram followers, and they could also share sensitive information about the trial in the captions of their photos.
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• Cell phones and Handheld Devices. Virtually every juror is likely to own a cell phone or PDA device that could allow telephone contact or text message communication to and from any Courthouse alcove or restroom to any person of the juror’s choosing. Some cell devices allow users to perform Internet searches as well.
What are Courts Doing About It??Ideally, Courts would put in place policies that might discourage misconduct in advance: taking cell phones, giving specific instructions to jurors against the use of technology to research or report on trial information, and warning them about any possible sanctions for such activity. However, these policies are not enough to guarantee good behavior.
If litigants or a judge discovers juror misuse of technology during a trial, a mistrial may be declared. During a recent Federal drug trial in Florida, a juror admitted that he had been researching the case on the Internet in direct violation of the Court’s instructions. After an astonishing eight other jurors admitted the same thing, a mistrial was declared eight weeks into the trial.iii Jurors routinely research, blog and reach out electronically in a way they did not do in decades past, and almost without thinking. Once they do so, the secrecy of deliberations and certainty of evidence can be lost.
Perhaps the most troubling possibility is that attorneys and judges cannot be sure when jurors have quietly conducted research or communicated with others about trial events. Jurors may be unable to resist the belief that they will be serving justice by getting detailed answers to unanswered questions. While juror “tweets” or Facebook messages will become newsworthy in a handful of high profile cases like Senator Fumo’s, it seems likely that most “online” juror mischief might go unnoticed. In that case, the Court would simply do nothing at all.
What’s a Lawyer to Do About It??The trend in favor of juror research and reporting on active cases using new technologies is likely to grow and be difficult to detect. What should a lawyer do, be they personal injury attorneys or handling any other legal niche, in response to this trend?
• Ask your trial judge for a specific admonition against Internet use/communication about the trial, and also include an explanation to jurors about why the rule exists and what the consequences of breaking the rule are too.
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• Use Voir Dire questions to educate jurors about why Internet research is not reliable for the case, and encourage jurors to help enforce the rule.
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• In some jurisdictions, jurors can submit questions for a specific witness; watch for clues in answers to such questions which may suggest a juror might be investigating on his own.
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• Learn some of the background signs that a juror might be investigating on his own, and be ready to raise an issue that juror misconduct created an appealable issue.
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• Ask whether your jurors use Facebook, MySpace, or Twitter.
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• Ask whether your jurors maintain a blog or similar Internet communication site.
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• Monitor your jurors’ Internet sites, “tweets” or MySpace/Facebook pages.
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• Ask your jurors whether they use smart phones, similar phones with Internet capacity, or devices like the iPod Touch.
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• Ask the Court to confiscate jurors’ cell phones while they are in the courthouse.
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• Consider encouraging your area Court to implement a policy or formal Local Rules against jurors communicating about cases not just personally but through computers, cell phones, and other electronic devices. Such a policy should also forbid Internet searches, chat room discussions and “blogs” mentioning any case.
Hiliary Remick, Esq. is a Litigation Consultant with Magna Legal Services, LLC. She assists trial counsel with creation of trial strategies in litigation throughout the country. Her work includes focus group facilitation and analysis, creation of case themes and arguments, and the development of complex trial graphics as persuasive courtroom tools.??Before joining Magna, Ms. Remick worked as a trial attorney for nearly twenty years in the fields of personal injury and commercial litigation, and brings hands-on litigation experience to her work as a member of our consulting team. Her professional background includes work in the fields of asbestos litigation, and medical and dental malpractice.??Hiliary Remick earned her Bachelor of Arts degree cum laude in Political Science and English from the University of Pennsylvania, and her Juris Doctor from Villanova University School of Law. She is a member of the Pennsylvania Bar Association and the American Society of Trial Consultants.
i. Philadelphia Inquirer, “Fumo Lawyers Target Juror, Deliberations”. March 16, 2009.
ii www.nydailynews.com, March 13, 2009.
iii The New York Times, “As Jurors Turn to Web, Mistrials Are Popping Up”. March 18, 2009.