by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
If you are a trial lawyer, would you prefer to know which jurors are going to reject your case after the trial or before?
Why retain a jury consultant before you are ready to pick a jury? Because you have no control over who shows up and only a limited number of strikes during the jury selection process. Besides, certain types of jurors are never going to vote your way, no matter what you do. When they reject you, they will do so vehemently (and, if possible, punitively), and they may even take other jurors along for the ride. The only good jury is one that agrees with you, but to know which jurors are on your side requires waiting until the trial is over. Or does it?
You can reliably discover what types of jurors accept or reject your case (through jury profiling) and why they do so (through trying your case to mock jurors) before the fact, while there’s still time to do something about it. After a trial has begun, attorneys tend to rely too heavily on evidence that often fails to change minds that are already made up, minds that more often than not use evidence to bolster their entrenched opinions, failing to realize that minds change evidence more than evidence changes minds.
A full understanding of juries comes neither from law school nor from knowledge of the law and legal procedures, nor even from vast litigation experience. Understanding juries also requires significant knowledge of psychology, personality theory, group dynamics, cognition, human decision-making, perception, and properly designed research.
Some attorneys, however, dismiss the notion that you can predict what a jury will do, reasoning that “every jury is different” and “juries behave irrationally,” so why bother trying to gauge the unknown? Actually, the reasons and processes by which jurors reach their conclusions tend to remain the same from one jury to another. These processes follow patterns that can be revealed through pretrial research. Trial teams can use the results of such research, in jury selection and in their case strategy—before the fact. While the behaviors of “bad” and “good” jurors are case-specific, they are also predictable through data that can be applied strategically to voir dire and jury selection. In other words, there are ways to increase your odds of knowing trouble before the fact, and we know the worth of an ounce of prevention.
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