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The Litigation Consulting Report

10 Ways to Spot Your Jury Foreman

Posted by Laurie Kuslansky on Thu, Jun 20, 2013 @ 11:02 AM

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spot jury foreman leader identify consultantsby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

While someone ends up sitting in the first seat on a jury and is presumed or named foreperson by the Court, they may very well be one in name only.  In fact, someone else may function as the foreperson.

Guess Who?

Who do you think is the most likely foreperson?  Do you think someone old enough to be her parent will defer to a 20-something pixie in seat 1?  Will an accountant in seat 6 rely on the homemaker foreperson for damages decisions?  Is it the butcher, the baker, or the candlestick-maker?  Unlikely.

Is there a pattern? 

Yes.  Surprise, surprise!  The power pattern in the jury room mirrors real life outside court:

 

  1. Male,[1] despite the proportion of males to females in a venue’s population.
  2. White[2]
  3. Higher socio-economic status [3]
  4. Better educated [4] (such as a graduate degree)
  5. Past juror[5]
  6. Age 45 to 65[6] (possibly related to prior jury service)
  7. Act like leaders,[7] such as:
    • Sit at the head of the table[8]
    • First to speak[9]
    • First to mention needing to choose a foreperson [10]
    • Participate and speak more often than other jurors [11]
  8. Extroverted [12] (although extroverts are more likely to be struck during jury selection)[13]
  9. Higher levels of political self-efficacy [14]
    • More regular voting records of participating in past elections.[15]
    • More experience discussing politics in conversation[16]
  10. Statistics background (3:1 more likely to be foreperson than someone without it!)[17]

A perceived “expert”

Alternatively, someone on the jury who is perceived by other jurors to have expertise seen as relevant to the case may emerge as the foreperson.  The funniest part of perceived expertise is how tenuous it can be.  For example, in a high-tech patent case, an entry-level, part-time mechanic may be the closest available “expert” on the panel.  Someone married to a lawyer may be the “expert” on a legal malpractice case.  It is often a matter of “a little knowledge is dangerous.”

But -- Haven’t Things Changed Since the Women’s Movement?

Uh… not so much on juries.  As recently as 2007,[18] 71%-78% of forepersons were male, echoed in 2010.[19]  In addition, how males and females act as foreperson also differs, in the off-chance that a female is elected (rather than typically volunteers) and actually functions as foreperson.  Female forepersons tend to encourage others to share their opinions to build consensus and exert less influence on others’ opinions, whereas male jurors tend to interrupt, hold the floor, and make more declarative statements.[20]  Result? Male-led juries tend to reach verdicts quicker.

There is no guarantee of who will be the leader on your jury, but pay special attention in jury selection to leadership qualities and the traits noted here, because they will likely have significant influence if they end up on your jury.  They may end up as juror #1 or enemy #1 if they become the foreperson.

jury consulting trial consulting jury research



[1] Boster, et al. (1991). An information-processing model of jury decision making. Small Group Research, 18, 524-547. Dillehay, R. C., et al. (1985). Juror experience and jury verdicts. Law and Human Behavior, 9, 179-191. Hastie, R., et al. 1998), (1998). A study of juror and jury judgments in civil cases: Deciding liability for punitive damages. Law and Human Behavior, 22, 287-314. Sannito, T.,et al. (1982, Spring). Jury study results: The factors at work. Trial Diplomacy J., 6-11.

[2] Devine, D. J., et al. (2001). Jury decision making: 45 years of empirical research on deliberating groups. Psych., Public Policy, and Law, 7, 622-727.

[3]Baldwin, J., et al. (1979). Trial by jury: Some empirical evidence on contested criminal cases in England. Law and Society Review, 13, 861-890. Strodtbeck, F. L., et al. (1985). Becoming first among equals: Moral considerations in jury foreman selection. J. of Pers. and Soc. Psych., 49, 927-936.  

[4] Diamond, S. S., et al. (1992). Blindfolding the jury to verdict consequences: Damages,experts, and the civil jury. Law & Soc. Review,26 , 513–564. Foley, L. A., et al. (1997). The influence of forepersons and nonforepersons on mock jury decisions. Am. J. of Forensic Psych., 15, 5-17. Hastie, R., et al. (2002). Inside the jury. Cambridge, MA: Harvard Univ. Press.  Hastie, R., et al. (1998). A study of juror and jury judgments in civil cases: Deciding liability for punitive damages. Law and Human Behavior, 22, 287-314.

[5]Cowan, C. L., et al. (1984). The effects of death qualification on jurors' predisposition to convict and on the quality of deliberation. Law and Human Behavior, 8, 53-79.  Dillehay, et al., 1985, ibid.  Kerr, N. L., et al. (1982). independence of multiple verdicts by jurors and juries. J. of Applied Social Psych., 12, 12-29.

[6]Ellison, L., et al. (2010). Getting to (not) guilty: Examining jurors' deliberative processes in, and beyond, the context of a mock rape trial. Legal Studies, 30(1), 74-97.

[7] Sanders, L. M. (1997). Against deliberation. Political Theory, 25, 347-376.

[8] Cowan at al., ibid. Diamond & Casper, 1992, ibid.

[9] Diamond & Casper, 1992, ibid. Sannito & Arnolds, 1982, ibid.

[10] Boster et al., 1991, ibid. Strodtbeck & Lipiniski, 1985, ibid.

[11] Hastie, R., et al, (1983). Inside the Jury. Cambridge, MA: Harvard Univ. Press. Velasco, P. D. P. (1995). The influence of size and decision rule in jury decision-making. In G. Davies,S. et al. (Eds.),Psychology, law, and criminal justice: International developments in research and practice (pp. 344–348). Berlin, Germany: de Gruyter.

[12] Clark, J., et al. (2007). Five factor model personality traits, jury selection, and case outcomes in criminal and civil cases. Crim. Justice and Behavior, 34(5), 641-660.

[13] Wigley, C. J. III. (2000). Verbal aggressiveness and communicator style characteristics of summoned jurors as predictors of actual jury selection. Communication Abstracts, 23(2).

[14] First among Strangers: The Selection of Forepersons and Their Experience as Leaders in Civil and Criminal Juries.” Co-authored with Laura Black and John Gastil. INGRoup: Interdisciplinary Network for Group Research, Kansas City, MI, July 2008.

[15] Ibid

[16] Ibid

[17] Diamond, 1992, ibid.

[18] Devine, D. J., et al. (2007). Deliberation quality: A preliminary examination in criminal juries. J. of Empirical Legal Studies, 4, 273-303.

[19] Ellison, L., et al. (2010), ibid.

[20] Tannen, D. (1994). Gender and Discourse. New York, N.Y.: Oxford U. Press.

Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Juries, Jury Consultants

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Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting
Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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