by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
Unlike the common process of querying actual jurors after a verdict has been rendered, empirically based trial consulting can provide trial lawyers with both actual data (not just opinions) and the ability to identify specific factors that separate bad jurors from good. In contrast to how attorneys involved in the case may approach questioning mock or actual jurors, a qualified trial consultant asks balanced and accurate questions to a sufficiently representative sample of surrogate jurors who do not know which side is sponsoring the research. This process provides objective data for qualitative and quantitative analyses from which to create juror profiles and case strategies. Even this method has its limitations (e.g., reliance on probability, the unlikelihood of learning all necessary information from the profile, and typically due to cost limitations a - a smaller than ideal sample size). Nonetheless, this statistical model is more reliable than gathering anecdotal information from jurors.
There are many situations for which it makes good sense to invest in a data=driven jury profile. When there is a lot at stake (whether financially, reputationally, or bad precedent setting). This is especially so, when you have reason to believe that some jurors may be resistant to your story, no matter how well you tweak or spin it, or how much anecdotal information you have. In those instances, it is wise to invest in the development of an empirically-based profile of traits that prospective jurors can be scored on in voir dire—whether verbal, a written jury questionnaire, reasonable inference, or observation. This is sometimes possible even in the absence of more direct information (e.g., through basic information provided by the court on the jury summons responses, via free computer database searches, or through local counsel’s knowledge about prospective jurors). Knowing in advance what the court will permit you to learn about prospective jurors is vital so as to identify the profile factors on which to focus in the developmental stages of the survey and the statistical model. If you already have both sides’ submissions of voir dire questions to the Court, include them in the research materials to the surrogate jurors. Of course, it is best to have the profile before submitting questions so that they carry the most value for you.
If you cannot get the information you need in order to apply the profile (e.g., you can’t ask questions because the judge or clerk conducts his or her own limited voir dire and does not allow written jury questionnaires), you will be empty-handed even when armed with the right questions. Even if you know that people with college or higher education are more likely to be adverse to your client than those with less education, never learning about the potential jurors’ educations renders your knowledge useless. Or does it? Why have a profile if denied access to such juror-specific information? Because this type of information may be inferred without direct access. An experienced trial consultant knows how to (1) “reverse engineer” a jury selection strategy, based on what and how information is learned in the court, and will then design a test to identify the most relevant factors; (2) test and use observable and inferable information about jurors; and (3) incorporate the limitations of each jury selection into the presentation strategy for that case.
Since we have more control over the story we tell than over who hears it, it is usually more cost-effective to invest in the development of the optimal story than to count on assembling the optimal audience. Ideally, you can do both: assemble your best story and identify your worst jurors. If you cannot afford to do both, then allocate your funds wisely to discern the most effective story for both fans and detractors. Keep in mind that whatever you learn in voir dire, your adversary learns too, and one of you will benefit more than the other. The less popular party has a better shot by relying on chance rather than by exposing its few good prospects in voir dire by asking a lot of questions, which achieves nothing other than having the opposition mark them as strikes. Based on the odds, striking in the dark gives you a better chance at keeping your few fans. In the end, focusing only on a trial consultant’s skill at jury selection underutilizes key advantages a trial team can gain from pretrial jury research — but it is a good start. Since any jury will inevitably have “unknowns” and “undesirables,” you can overcome the unavoidable resistance and maximize the benefit of favorable jurors by knowing which arguments and evidence play best. Pretrial jury research is your strongest insurance policy. When overly depending on jury selection as a strategy, if all you get is three strikes, you’re out before you begin.
Other A2L Consulting articles related to jury selection, jury consulting and voir dire:
- Free Download: Storytelling for Litigators Guidebook
- Free E-Book: Getting Maximum Value from Jury Consultants
- 5 questions to always ask in voir dire
- 10 things every mock jury ever has said
- A2L voted #1 jury and trial consultants
- 5 things every jury needs from you
- They call it the practice of law, but nobody is practicing
- 6 secrets of the jury consulting business you should know