by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
Many trial lawyers have theories about who among a group of potential jurors is good or bad for them. In fact, sharp instincts and the confidence to rely on them are among the characteristics of a good trial lawyer.
So a trial consultant will often hear a variety of seat-of-the-pants strategies: “I’ve been trying cases for 20 years, and I can tell who likes me and who doesn’t.” “I know which cases I like to have women vs. men on.” “I intentionally tease a prospective juror to form a rapport.” “I like housewives.” “No widows.” “I’ll take a veteran any day.” “Forget students.”
However, research and post-trial jury interviews have actually shown such untested jury notions to be misguided and false, regardless of the years of experience of the person offering them.
Many attorneys love to tell war stories about individual jurors who turned out to be oddly favorable or unfavorable to their case; such stories are offered as anecdotal proof of how perceptive the attorneys were or how unreliable preconceived impressions about jurors can be. For example, a male juror nodded approvingly at everything a defense attorney did during trial, only to end up the single holdout against her client in deliberations. Jury-watching alone failed. In another case, a Hell’s Angels biker with an eye patch ended up championing a chemical manufacturer’s claim for payment from its insurer.
These were not random occurrences, but consequences of a logical theory about the case, including what kinds of jurors would accept or reject the trial team’s reasoning. In the instance of the chemical manufacturing trial, how did the trial team know? We tested it before the fact. Pretrial jury research indicated that leniency toward the insured as to specifics omitted from its application for insurance would more likely come from anti-establishment types than from highly rule-governed people. This is intuitive and was confirmed.
Certain choices in assessing prospective jurors require little special knowledge and testing. Expecting dogmatic environmentalists to disfavor alleged polluters in toxic tort cases or strident feminists to favor female plaintiffs in sexual harassment suits seems logical, and therefore, not to merit jury consulting. Such jurors tend to be “spear throwers,” i.e., extremists that anyone can easily spot as adverse and target for a strike. Assuming that they are obvious, you can identify and get rid of your side’s worst jurors. But what if they are not obvious? What should you do with moderate jurors who remain and warrant proceeding with caution? The issue then becomes how to distinguish between shades of gray.
It takes more than experience to ferret out bad jurors from good ones. The clearest examples of how this can happen relate to counterintuitive factors: Will jurors similar to a plaintiff favor the plaintiff (due to “identification”) or seek to distance themselves (due to “defensive attribution”)? For example, in a case involving injury from riding double on an ATV, jurors who actually did this – despite clear warnings – were most critical of the Plaintiffs, not the manufacturer defendant, claiming “We all do that, but we know we are not supposed to."
There is no clear-cut way to predict this without researching that case with surrogate jurors. Different venues with the same fact pattern -- or slightly different fact patterns in the same venue -- have yielded opposite results, as found in pretrial research and confirmed in post-verdict interviews. For example, in a patent infringement case, tinkerers proved to be especially bad for an unknown, commercially unsuccessful patent owner suing for infringement against a technology giant. Why? Because technically oriented people like “new bells and whistles” regardless of their origin and thus appreciate the source that provides them, albeit an infringer.
In a product liability matter, young, adventurous males were especially unsympathetic to a hot-dogging young man who “buzzed” tree tops with a private plane that crashed when it hit phone lines, killing him and his friends on board. Counter-intuitively, daredevil jurors were least sympathetic to the plaintiff. Why? Due to defensive attribution, jurors similar to the deceased needed to distance themselves from him to psychologically shield themselves from his fate. They did so by being critical of him and disparaging the choices he made. They openly insisted, “I would never do that.”
In another case against a well-known wrestling entity, wrestling fans were the least sympathetic to the defense. Why? Because they felt betrayed by something they cared about: wrestling.
In each of these instances, the client benefited from the ability to identify these jurors as risks using very few questions in voir dire and maximizing the value of peremptory strikes. Without the benefit of pretrial profiling data, the clients might have struck their best jurors or kept their worst ones, based on apparent common sense and folklore.
These are only a few examples of how jury profiling can be counterintuitive or less obvious than guessing might predict. Without prior research, we cannot know whether favorable jurors will follow an intuitive or counterintuitive pattern, and we cannot know the crucial questions to ask to distinguish bad from good jurors.
Many attorneys ask trial consultants, “What kind of jury do we want?” Without an empirically based profile, the best one can do is to consider if “generic” juror profiles (which tend to describe jurors in tort litigation) apply to the case at hand. Using a generic profile is like a doctor using another patient’s x-ray for your fracture. Maybe the bone will be set properly, but maybe it won’t. With that caveat in mind, below are common traits of Plaintiff-oriented jurors.
The following are some aspects of a generic plaintiff juror profile:
- Less educated
- Overeducated, but underemployed
- Disgruntled/chip on shoulder/angry or depressed
- Disenfranchised/anti-establishment/ marginalized (“fringe”)
- “External locus of control” (i.e., victims/ blamers)
- Recent personal hardship/life stressors
- Emotional rather than cognitive deciders
- Little authority status socioeconomically
- Unstable employment history
- Recent loss of job
- House repossessed
- Divorced/separated/recently widowed
- Recent serious illness or hospitalization
- Volunteers/Charity work
- Wild cards:
– Case-related specialized skills
– Leadership qualities/behaviors; ability to create consensus
– Aware of amounts of money in business/can calculate damages
Here are some aspects of a generic defense juror profile:
- Mainstream, conservative
- Some authority status
- Analytic rather than emotional/intuitive
- Few life stressors
- “Internal locus of control” (takes personal responsibility/control)
- Possibly management experience
- Long-term marriage
- Long-term employment
- Understand business
- Not experiencing financial hardship
- No recent personal hardship
- Better educated (college or more)
- Homeowner rather than renter
Generic characteristics may not apply to your specific case at all. For example, if instead of a plaintiff, a defendant is seen as the victim, then the generic “plaintiff-oriented” profile (i.e., describing jurors who favor victims) may well describe defense jurors better in that instance.
What else can one use if not traditional wisdom or experience? Information from actual jurors.
A2L Consulting articles related to jury consulting, jury selection, mock bench trials and more:
- Part 1 of this series. Part 2 of this series.
- FREE DOWNLOAD: How to choose a jury consultant and what works.
- 10 things every mock jury has said in 33 years
- 10 videos our jury consultants say all litigators must see
- 5 things EVERY jury needs from you
- Introducing the Micro-Mock Trial
- 12 tips for getting meaningful results from mock trials
- 7 questions to ask your mock jury about graphics
- 11 surprising areas we are using mock excercises
- 7 reasons in-house counsel should want a mock trial