I’ve written many times about the importance of hiring good jury consultants and the value of conducting mock trials. The Casey Anthony trial provides a perfect example of why it’s worth going through that time and expense.
While the media and the public have responded with shock and outrage at the verdict, jury consultants – including those who worked on the case – say they weren’t surprised. As reported in the Palm Beach Post, two mock juries, one conducted for television and one for the defense, both resulted in not-guilty verdicts.
Hiring a jury consultant certainly doesn't guarantee a win for your side, but it definitely helps you build a stronger case when you present before a jury. Jury consultants not only help in voir dire to “unseat” potential jurors who are most likely to be unsympathetic to your client. They are also the most qualified people to help your team conduct a mock trial – and there is no better way than a mock trial to explore how your overall case and all its parts will play with a jury. If done correctly, a mock trial will reveal your strategy’s general and particular flaws as well as its strengths. It will also give a feel for how individuals will react to – and think about – the evidence and arguments you intend to present.
To get the most out of the process, you have to provide the jury consultant with a summary of the case from both sides, jury instructions and a verdict sheet. It is also helpful to offer a draft of the pretrial order, which you should be developing by the time you are ready to present a mock trial.
The jury consultant will engage a research studio where you will eventually present the mock trial of your case to a group of strangers. These strangers – selected by the studio – should match the profile of the actual jurors who will hear your real case. How can you be sure that the “mock jurors” will match the profile of the actual jurors? You can’t – but you can make an effort to come close. Within a month or two of the trial, contact the jury commissioner for the court and, if possible, obtain a copy of the current jury list. The list is often available, though not always. Your jury consultant will pass the list on to the studio or research center, which will recruit people from its database who match the profile of the actual jurors. The participants are usually compensated about $100 per day, though that can vary by jurisdiction.
Before you come face to face with the group, you may need to consider which aspects of your case you should present. Be selective. It isn’t often that you can – or would even desire – to present your entire case at mock trial, particularly if the upcoming trial is complex and lengthy. Focus on the key aspects of your case: perhaps the opening statement and closing argument, crucial witnesses and any area about which you feel uncertain.
A good jury consultant can work with you to identify your goals of the mock trial. You may want to discern the type of jury that would be supportive of your case or identify the type of juror who could be harmful. You may want to learn how you are received as counsel. You may also need to know what further information the jury believes should be presented on behalf of your client.
Once you’ve sorted this out, the consultant can help you develop questions for a focus-group meeting following the mock trial and mock-jury deliberations. From this you can glean which witnesses were perceived as more credible than others – and why. You can also learn whether particular strategies you devised were stronger or weaker than you imagined.
To make the mock trial worthwhile, you have to give the opponent a fair shake by presenting the opposing side, including opposing witnesses and opposing counsel. Given that you obviously won’t have your real opponents to assist, you can ask colleagues to portray the other side’s counsel and witnesses. You may also have video depositions at your disposal.
Jury consultants and mock trials don’t come cheap. They can range from less than $10,000 to well more than $100,000. If money is a big issue, consider working with a jury consultant to create a mock trial that only deals with opening statements and perhaps one or two witnesses. Worse comes to worst, assemble your office staff in the conference room for a few hours and use them as mock jurors.
The bottom line is that preparation for a trial is key to its success. And there is no better way to prepare than with a good jury consultant and a well-run mock trial.
I’ve written many times about the importance of hiring good jury consultants and the value of conducting mock trials. The Casey Anthony trial provides a perfect example of why it’s worth going through that time and expense.
The Wall Street Journal continues its postmortem of the Raj Rajaratnam trial in an article that offers insight into the potentials and the limits of jury research. The story reports that the jury consultants hired by Rajaratnam picked the jury they wanted--one that was skeptical of the government's case and sympathetic to the defendant.
A mock trial conducted in advance of the real trial told consultants that the defense counsel's case played best with "those without advanced-education degrees or financial sophistication and with relatively low- to middle-income jobs. Mock jurors who were members of the ethnic minority groups also were more sympathetic to Mr. Rajaratnam," the story reads. That description matched the jury that ultimately convicted the defendant, however, suggesting that jury research only gets you so far against a strong adversary.
That said, such reports shouldn't be taken as evidence against the value of mock trials and consultants. In some cases, they are essential to success. Given the comments of jurors after the trial, it would seem the defense had as good a jury as could be expected.
Had the government's case been a bit weaker, we could be talking about a surprise acquittal. In the end, the most one can do is position one's client as advantageously as possible relative to the evidence in question. Good, credible jury research generally advances that goal.
Judge Richard Holwell asked jurors not to discuss the trial of Raj Rajaratnam, but a few clever Wall Street Journal reporters managed to report this weekend about what went on during the 12 days of deliberations before the jurors delivered their guilty verdict.
For trial lawyers, any reading that offers a glimpse of the thinking and behavior of jurors can be helpful. The WSJ report surely isn't the whole story; it relies mostly on one juror's comments. Still, it confirms a few valuable lessons about trial advocacy.
In talking about the Rajaratnam's defense, the juror in the piece doesn't zero in on the substance of the argument. Rather, she emphasizes a weakness in the delivery. The attorney's voice, in particular, the jurors reportedly thought, was "monotone" and "tired." A problem like that has nothing to do with the facts in question or the law, but it does matter. How we speak colors what people hear. It determines more, perhaps, than our diction, although that, too, is critical.
The other lesson here I take as an encouraging one. The article states that the jurors believed from the beginning of deliberations that Rajaratnam was guilty, but they wanted to deliberate carefully. The juror who went on the record with the reporters said that the jurors "tried to poke holes in the government's case and wanted to like Mr. Rajaratnam[.]" They even "challenged each other, trying ot take the defendant's view to make sure they weren't blindly accepting the government's version."
In other words, the minds of the jurors were open to persuasion. The relatively superficial matter of the attorneys' delivery did not trump substance in the end. That's the sort of jury a defense attorney needs to prevail. Unfortunately for the defense counsel in this case, the fair-mindedness of jurors wasn't enough.
It has been widely reported that jurors’ cyber-surfing has wreaked havoc in the courtroom, with mistrials, appeals and overturned verdicts at record levels. Though largely the result of jurors’ chatting online about the trials on which they are serving, even jurors’ seemingly innocuous web expeditions have stopped trials in their tracks. Earlier this year, a judge in Florida declared a partial mistrial and threatened a juror with charges of criminal contempt after she was found to be conducting online research about head injuries during a capital-murder trial.
As judges grapple with the myriad complexities involved in keeping jurors off their Smart Phones, iPads and Facebook pages, lawyers can help mitigate the damage. Voir dire is a good place to start. In this social-networking age, trial lawyers should be routinely asking members of the jury pool whether they have Facebook accounts, Twitter accounts, even blogs. When hands go up, follow-up questions should include, “How often do you check your Facebook page?” “How often do you post?” “Do you Tweet?” and, if so, “How often?” This should tell you how plugged-in your potential jurors are.
Other questions will give you insight into where they go for information: You might ask, “Do you have blogs or websites you check daily or weekly?” and “What are they?” It might also be helpful to find out how they feel about Wikipedia – do they trust it as a source of information? And you might want to ask how often they Google. An individual who spends hours Googling and YouTubing may need to be reminded in no uncertain terms that trolling online for information relevant to the case is off limits.
As social-networking options evolve, trial lawyers should stay abreast of the latest forums so you not only know how to pose questions, but also how to conduct research. After all, ten years ago, no one would have needed to ask a juror if he Tweets. Today it’s a perfectly reasonable question.
If a potential juror shares that he has several blogs of his own, a few favored blogs on which he posts regularly, a couple of Facebook accounts he checks dozens of times a day and a Twitter account that keeps him hopping, it’s possible that he would ignore a judge’s instruction not to post anything about the case or not to do online research, even if said juror has the best of intentions. It’s just too pervasive. It’s akin to asking him to lock himself in a room with no windows for what could be a month or longer.
By no means is this post meant to suggest that every potential juror with an active social-media life be banned from serving on a jury. Increasingly, that runs contrary to the goal of selecting a jury of one’s peers. On the other hand, as a trial lawyer, it is your job to know what you are dealing with. Not only will this help you in jury selection, but also in how to present information to the jury once the trial is underway. That is, assuming you realize that at least some jurors may still log on.
“Beware of the Smiling Juror,” warns Melissa Gomez, a jury consultant blogging on The Legal Intelligencer website last week. Ms. Gomez points out, quite accurately, that trying to read jurors’ body language and other non-verbal cues is both “fruitless and tiring.” With regard to the smiling juror, she warns, we don’t know whether that person is grinning because he likes what we are saying, or because he can’t wait to stick it to us when jury deliberations begin.
Most disturbing about a trial lawyer trying to read jurors’ facial cues and body language is the potential it has to distract the lawyer from what’s most important: presenting one’s case as clearly, cleanly and fully as possible. Every time you look over to see if your jurors are nodding along with your argument, you run the risk of being thrown off course.
Rather than attempt to read facial cues, focus on getting to know your jurors before the action begins. Get the jury list in advance of trial. By reviewing the list, you can learn about the types of people you might find on your jury. You may observe, for example, that many of those on the list are retired farmers, or nurses, or teachers, as opposed to businesspeople. Read the questionnaires that many jurisdictions have jurors complete. Research your jurors online. All this knowledge will help you ultimately tailor your argument to your listeners. Be vigilant about using voir dire to “unpick” the potential jurors most likely to side against your client.
Jury consultants can help at many stages of the process. Not only can they assist in suggesting the best way to present evidence to the jury, but they can also help select jurors that are likely to be most receptive to your arguments. Once trial begins, you should have enough confidence in your preparation that you shouldn’t be thrown off by a juror’s crossed arms or unexpectedly sheepish expression.
That said, don’t ignore your jurors’ non-verbal cues completely, especially when their demeanor changes dramatically from one day to the next. In November 2010, I blogged about a case in which the defense noticed a juror’s sudden change in demeanor. The defense went back and did further investigation into this juror’s background. In doing so, the defense found she had much to hide and asked the judge to remove her from the trial. The judge did so, and, in the end, the defense won the case.
Still, proper research is a better bet overall than trying to figure out what that juror’s smile, smirk or grimace signifies. It may just mean that he had a lousy breakfast.
Whatever your opinion about controversial filmmaker Michael Moore, he did recently offer some unwittingly sage advice to trial lawyers everywhere: He reminded us why it's important to conduct juror research early and often. Last week, a judge in New York dismissed a juror in the final throes of a case against banking giant Citigroup, after it was discovered that the juror was listed in the credits of Moore’s 2009 documentary that berated Wall Street and the banking industry. Citigroup ultimately prevailed in the case but the question of the biased juror made for an awkward, if unavoidable, situation.
When reached by Bloomberg News for comment about the judge’s decision to remove the juror, Moore, who said the juror didn’t work on the film, added, “You’ve got to feel sorry for Citigroup. They’re paying all this money to their attorneys and they didn’t even bother to Google her ‘til last night.”
The filmmaker may have been too severe. Solid information about jurors' biases is generally hard to come by, even when online research can be done during voir dire. What’s more, it is not known how this juror answered questions during voir dire or how cleverly she hid any biases up to that late stage in the trial.
It’s also important to point out that Citigroup’s lawyers were wisely attentive to this juror’s behavior during the trial and that they smartly took action immediately upon sensing a subtle change in her demeanor. As the judge commented after deciding to dismiss her, she answered questions in a manner that struck him as deceptive. She may well have withheld important facts and biases just to be seated on the jury.
That said, the incident emphasizes the cardinal rule of persuasion: know your audience as well as you can. We have Michael Moore to thank for the reminder.
With more and more courthouses providing easy Internet access to attorneys, it seems you now have no excuse for poor voir dire preparation. According to the New Jersey Law Journal, an appeals court in New Jersey has ruled that it’s perfectly fine for trial lawyers to bring their laptop computers to court and Google prospective jurors at the counsel table. The ruling overturned a trial judge’s decision to force a plaintiff’s counsel to turn off his laptop computer because it gave him an advantage over his less tech-prepared adversary.
In overturning the trial judge’s ruling, the court pointed out that just because plaintiff’s counsel “had the foresight to bring his laptop computer to court and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of fairness.” The wireless Internet service, the court reasoned, was available to both sides equally.
There are at least two points here to keep in mind. First, take your voir dire seriously. Make use of every opportunity you have to get to know the candidates in your jury pool. This entails asking good questions that uncover their leanings and predispositions, reading facial and body cues, and, especially now, researching each potential juror – using all the information that is available to you in the public domain. You never know what you’ll find. With so many of us broadcasting our political leanings, tastes and habits online, trial lawyers can’t afford to ignore the Internet. Second, stay current in all the technology that’s out there. And be prepared to use it to your advantage. Today it’s Google with Wi-Fi access. Tomorrow, who knows?
But always remember that innovative voir dire techniques must be consistent with ethics and professional responsibility. Moreover, your voir dire must also conform to the practices within the jurisdiction and court in which you are trying the case.
It's no secret that the general public has a low opinion of lawyers. That means you – as a trial lawyer – are at a disadvantage with a jury before you’ve even uttered your first syllable in court. Nevertheless, there are steps you can take to diminish jurors’ skepticism about you and your case.
For one thing, refrain from calling the party you represent your “client.” Always use the person’s name. Every time you say “my client,” you remind the jury of your role as a “hired gun.” Obviously the jury knows this is your role, but it certainly doesn’t need emphasizing.
Also, in court as in life, honesty is the best policy. Don’t try to conceal negative facts about your case: confront them head-on. Not only does that enhance your personal credibility, but it also minimizes the impact of those facts. If the jury doesn’t hear about the weaknesses of your case until the other side takes to the floor, your integrity will be questioned and the bad news that’s delivered by the other side will come across as even more incriminating.
Speak to the jury expressly in terms of the truth of the circumstances, and your hope for a fair and just resolution of the dispute. By talking about truth and fairness as shared values, you reinforce in the jury’s mind your own adherence to these values. As part of the same theme, avoid asserting facts that the jury is unlikely to believe. It’s better to omit details that will only undermine your credibility than confront a jury with information that just doesn’t sound plausible, regardless of its authenticity.
Finally, be nice. This may be easier said than done. The New York Times observed, “One reason companies lose lawsuits is that they are represented by obnoxious counsel.” So smile. Be civil. Never talk down to your audience. Use voir dire to establish rapport with jurors. And never appear hostile to the opposing side.
Credit the news media in the trial of former Illinois Governor Rod Blagojevich for shining a spotlight on a growing trend: that of judges keeping the identities of jurors out of public hands for fear that a voracious press and minions of Internet bloggers will tamper with jurors and compromise their objectivity. See this recent story in The Wall Street Journal.
The court in the Blagojevich trial has refused to make the jurors’ names public, and the press, accustomed, to full access to criminal proceedings, is crying foul. The Chicago Tribune asked Tribune Co. Assistant General Counsel Karen Flax to articulate the argument for disclosure. You can read the full statement here, but here is an excerpt:
The news media are the public’s eyes and ears, and that role is particularly important when it comes to reporting on what happens in criminal trials -- especially when that criminal trial involves the prosecution of our former Governor, Rod Blagojevich.
The United States Supreme Court has long held that, under the First Amendment to the United States Constitution, the media -- like Chicago Tribune, have a right of access to criminal judicial proceedings...
The reason that prompt disclosure is important is because, as one court recently put it, “knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system.”
The conflict is, in part, a by-product of the Google and Facebook age and it is becoming prevalent in courthouses around the country. Historically, a judge virtually only called for an anonymous jury when the case involved a defendant who posed a serious threat to jurors’ physical safety or who would try to bribe them. Today, it is often used to quash jury tampering by the media and other sources.
The media is quick to cite cases when its tenacity set the system straight. In the case of another high-profile Illinois governor, George Ryan, it was the news media that uncovered evidence that two jurors had withheld information during voir dire that might have disqualified them. Thanks to the media, these two jurors were ousted and replaced.
Things got complicated with the prevalence of social media. Today, anyone with an iPhone or a blog site can call him or herself a reporter. The judge in Governor Blagojevich’s trial calls them, ‘bloggers and other gadflies’ and says that if jurors names are released, these individuals will swarm them and interfere with their duties. He has good reasons to be concerned.
While traditional news media generally comply with judges’ orders not to contact jurors about a case during trial, one cannot count on this new breed of pursuers to follow the same standards. As anyone who has surfed YouTube knows, people will record and upload virtually anything.
What’s more, though judges routinely order jurors not to do outside research while they are sitting on trials, the Internet age has made research too tantalizingly simple to avoid. Not that long ago, a lone question from a reporter might have peaked a juror’s curiosity, but not enough to make him violate a judge’s order and head to the library to research. Now it’s only a Google search away.
The debate over anonymous juries in high profile trials is not as simple as a Google search; it merits careful consideration by all parties involved – the judiciary, the press, and counsel. New media forums are not going away anytime soon, and neither are high profile jury trials.
I previously posted about attorneys doing jury research on social networking sites. The other side of the coin is that jurors can conduct internet research of their own, a problematic phenomenon discussed in this story from the Twin Cities Business Journal. Jurors have always been told to avoid reading about a case on their own, but now that it's so easy to satisfy one's curiosity with an iPhone, Blackberry or computer, a judge's warnings may not always be enough to ward off the temptation to know more. Anyone who has ever used Google, should understand the inherent danger of a potential jury member making decisions based on online information. Misinformation, public opinion, and publicity spin fill online forums like Wikipedia, blogs, and newspaper sites.
A common question at the voir dire: “Is there any member of the jury panel who has knowledge of any facts relating to this case?” Attorneys may also want to ask whether potential jurors believe they could obey the judge and stay away from Internet research during trial. The aforementioned article cites Dorsey & Whitney partner Peter Carter's experience in a Kansas City trial:
“ 'During voir dire, we asked whether jurors would abide by instructions to not do research on the Internet, and probably six to 10 potential jurors said they could never abide by that,' Carter said. [He] and other attorneys involved in the case then asked the 80 potential jurors whether they had already researched the case on the Internet. Carter said six to seven more people admitted they had.' "
Such experiences illustrate how critical voir dire can be. Many lawyers have campaigned for a broader voir dire that would afford them more opportunity to question jurors individually. There has been little enthusiasm from the judiciary for such proposals. Arguments against an expanded voir dire range from the efficiency of judicial administration to the need to protect jurors from penetrating questions that violate their privacy, to the concern that lawyers would unfairly use the process to begin persuading jurors before evidence has been presented. All of these points have merit, but now that jurors can so easily access information independently, perhaps it is time to revisit the standard voir dire questions.
Are social networking sites really a new base to cover in jury research? According to this piece on law.com, the answer is yes. Tamara Thompson writes that the use of social networking sites is a great place to start to get to know a witness, juror or potential business partner.
In her article she discusses various social sites--Facebook, Linked In, MySpace—and strategies for culling information from each. This “due diligence” goes above and beyond a simple Google search when conducting research on the 6-12 people who will be making decisions about your case. And the point is well taken. The statistics speak for themselves: at least half of your jurors will have a social networking page.
Given the increasing popularity of these sites, it would be foolish to ignore them when doing jury research. Beware, though, that you can’t trust all the information potential jurors post about themselves on their Facebook or MySpace pages. With the public becoming increasingly concerned about online security, users are rightfully wary about posting potentially identifying information on the internet. And, of course, it’s easy for people to bend the truth or lie on such sites for whatever reason.
If we can take a lesson from a social networking site, it should be from Match.com, where we learn that “seeing is believing”. There is intrinsic value in laying eyes on a person and asking them specific questions tailored to your specific needs. No matter how revealing social networking pages may be, voir dire will still be crucial. When voir dire is permitted, take extensive time to evaluate your case and determine the types of people you think would be best suited and most harmful to your case.
There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.
Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.
To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."
The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:
Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.
Those who cherish the jury system do so with the full recognition that juries composed of mere mortals are not perfect. We take the good with the bad, always trying to improve. For example in civil cases we now have juries composed of six citizens as opposed to the traditional twelve.
I am grateful that the Abell Foundation has shed new light on the outcome of jury cases in Baltimore City, as reported in yesterday’s Baltimore Sun. But I take issue with the suggestion that we in Maryland create regional juries. Even if the concept were attainable by overcoming legal hurtles, such juries would smack of the same "court packing" attributable to FDR when he proposed that Congress add a tenth justice to the US Supreme Court. President Roosevelt considered the Supreme Court Justices to be in error when they persistently ruled against him.
We must remember our system of government is composed of federal, state and local governments. In Maryland we have twenty-three counties and Baltimore City. Each county and city has its own local laws and customs. The defendants are entitled to juries who live in the community in which the trial unfolds. Those who say that in some counties juries are more likely to convict than juries in Baltimore City seem to write with a preconceived notion that many of those found not guilty are, in fact, guilty. Each case, however, must be judged on its own merits. Perhaps in the city cases, the prosecution did not have the evidence to persuade or were not as experienced as prosecutors in the other counties.
Although I do not believe that we should create regional juries, we should be ever conscious of enhancing the already refined methods of educating new jurors. We should also take steps to assure their confidence in their safety. And, we should let them know they have our respect for the serious work they do and sacrifice they make to serve the public and our democratic way of life.