by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting &
Expert Jury Consultant!
Ever take a medical test that came back negative, but your doctor said they still think you have whatever it tested for, anyway? Or have you ever had a lot of symptoms that seem to fit one diagnosis, but your doctor said you don’t have it? And, in both instances, did they turn out to be right? If so, they’re probably doctors you’d rely on again, because they represent the best of combining the art and science of their profession. Theory only goes so far. “Objective” tests have a margin of error. “Statistics” are not fool-proof. Everyone, after all, really is an individual.
The same principles apply to “experts” in jury selection. Some may be well trained in statistics and able to yield a jury profile on paper with probabilities of negative juror traits, but don’t have the skills to apply them in the real world once they leave the lab. Others may be students of human behavior, but ill-armed when it comes to data and uninformed as to how the facts actually play out in a certain venue and case. Some have neither. It is the rare person who has both.
The word “expert” has been bandied about for over a century, if not more. It stems from the Latin word “expertus,” the past participle of a word that means “try.” There is no doubt that many people who tout themselves as Jury Selection Experts “try.” However, you need to be able to rely on people who succeed, not just try. How to tell them apart?
Nowadays, an “expert” is defined (by the Oxford English dictionary) as “a person who has a comprehensive and authoritative knowledge of or skill in a particular area.” As an adjective, Merriam Webster defines it as “having or showing special skill or knowledge because of what you have been taught or what you have experienced.” That’s a far cry from just trying to be knowledgeable.
In order to assess the skills and contributions a jury selection “expert” can bring, the following are worthwhile to explore:
- Get their credentials and evaluate whether they can bring both solid theory, facts and data analysis together with good boots-on-ground know-how to the task;
- Ask questions about their experience – not so much in the venue – but in the professional application of their skills in actual jury selections, regardless of venue;
- Definitely speak with their references to learn if and how they made a difference – or not in a real-life situation;
- Pose different scenarios to them (what happens if there’s a written jury questionnaire, judge-conducted voir dire, etc.?)
- Ask about the mechanics of how they operate so it fits with your needs and the situation;
- Remember, experience is part of what defines an expert, so question their experience with cases and clients as those involved in your case;
- How well do they understand the relationship of how different themes influence the decision about who’s good or bad on the jury?
- How quickly can they think on their feet? That is, what if the judge makes a ruling on the spot that impacts jury selection?
- Find out what they look for when assisting with jury selection.
- Ask why they see themselves as an expert, or if not, why not?
Other articles on A2L's site related to jury selection and trial consulting generally:
- Jury Selection and Voir Dire: Don't Ask, Don't Know
- Is Hiring a Jury Consultant Really Worth It?
- Jury Selection: So Few Strikes, So Much at Stake
- Jury Selection: Should You Follow Your Instincts About a Juror?
- Jury Selection & Jury Consultants: Three Strikes, You're Out!
- 5 Questions to Ask in Voir Dire . . . Always