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The Litigation Consulting Report

[Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials

Posted by Ken Lopez on Wed, Sep 14, 2016 @ 03:19 PM

A2L-MOCK-TRIAL-JURY-CONSULTANTS-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials.

This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days.

This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show.  Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. 

Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial.

A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you. 

Jury Consulting Mock Trial

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Body Language, Damages, Persuasion, Cognitive Bias

Jury Selection Psychology: Beware of Sleeping Jurors – They’re Like Sleeper Cells

Posted by Laurie Kuslansky on Fri, Mar 4, 2016 @ 09:25 AM

jury selection psychology;  jurors; mock jury; jury consulting; jury studies; juries; jury psychologyby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting


Invariably, despite excellent presentations at mock trials, some observers serving as mock jurors fall asleep. The typical response by clients is to ask us to wake them up, which we often do, but with limited success, as they tend to fall back asleep. The myth, debunked time and again, is that these people aren’t taking it seriously, aren’t taking it in, aren’t paying attention, and will have nothing to contribute as feedback. In fact, we have found that this is almost always contradicted by what ensues.

Contrary to what one observes with the naked eye, sleepers have heard more than you think, and certainly have taken in enough in their minds to reach a conclusion. They have fallen asleep because they are “done” and don’t feel as if they need or want more information. Perhaps they find the information boring, repetitive or superfluous, but nonetheless, once deliberations start, clients are amazed to hear what these people say and do. They speak up! They voice well-formed opinions supported by some facts. They don’t ramble and don’t stay quiet in the shadows as one might expect.

The insights of jury psychology tell us that these jurors tend to be very verbal and on point, whether friendly or hostile. At some point in the presentations, one of the parties lost them for good. Funny enough, in over 30 years, we have never heard another juror mention as a counterattack – “What do you know? You were sleeping the whole time!”

Understanding this phenomenon means you should not overlook those jurors in jury selection who seem to sleep either, because they are a few strikes away from being on your jury. They may be susceptible to a variety of cognitive biases we have discussed in prior publications.

Instead of making assumptions about them, find out, if possible, if any prospective jurors work the day shift or have any medical condition that might prevent them from staying awake and alert at trial. If they do not, but still seem sleepy, pay extra attention to how the sleepers answer other voir dire questions. Assume they will have some say in deliberations, rather than dismiss them as low risk because they will sleep. That’s a falsehood. If you take these precautions, we hope you have sweeter dreams and a sweeter reality at trial.

 

Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

jury consulting trial consulting jury research

 

 

Tags: Jury Questionnaire, Jury Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Psychology

When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors

Posted by Laurie Kuslansky on Fri, Feb 12, 2016 @ 02:46 PM

Cognitive Bias Jurors Expert Witnessesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Ever been told you were too smart for your own good? I never thought it was possible. I might be too smart for someone else’s good, but not my own.

When it comes to jurors and experts, it could be true. Two reasons are cognitive, decision-making biases that are of special interest because they can seriously impair your case. Both follow the lines of “Really? You don’t think like me?!”

Specifically, these biases are:

  • The “Curse of Knowledge Bias" in which well-informed people find it hard to think about problems from the perspective of others who are less informed, and

  • The “False-Consensus Bias", whereby people tend to overestimate how much other people will share their beliefs or opinions. Assuming that their own values and beliefs are normal and typical, they hold the false belief that there will be a consensus between others’ opinions and their own. In fact, when they discover that others do not share the same expected opinion, this bias leads them to believe that there must be something wrong with those people who think differently.


What Makes Very Smart Jurors a Risk?

Individual jurors, who have abided by the court’s instruction not to discuss the case prior to deliberating, often enter deliberations believing that others see the case as they do. Learning that others see it differently initially comes as a surprise based on their false expectation.

If a juror is better informed and suffers from the “Curse of Knowledge” bias, and a reason some jurors disagree is due to a poorer understanding of the case, a lack of background experience or knowledge, or an intellectual deficit, very smart jurors may have a hard time bridging the gap to reach a consensus with these fellow jurors. The “Curse of Knowledge Bias” may cause them to have a tough time seeing the case from the perspective of less-informed people. If so, they will fail to take the perspective of others and fail to find common ground with which to forge a true consensus to reach a verdict.

Depending on your position, that is either good or bad news.

 

What Makes Very Smart Experts a Risk?

Not only are jurors subject to these biases, but so are experts. Someone who is at the top of his or her field of expertise may be very knowledgeable -- but may also be challenged in other types of intelligence, whether emotionally, socially, or as a teacher, persuader or communicator.

Experts who are less experienced in testifying in court may be used to sharing knowledge with peers or students who are highly motivated to learn, but may be vulnerable to these two biases, to the peril of the litigator and client who hired them.

In order to successfully teach and persuade, at a minimum, one must be able to retrace the steps from ignorance to knowledge and pave the way to get there. Otherwise, the expert may really be too smart for their own – and your – good, because they cannot imagine other ways to see an issue and what is needed to understand their position. Assuming too much knowledge or understanding on the part of the recipient (student or juror) is a good way to alienate them.

 

Implications for Jury Selection: Is Your Goal to Reach or Prevent Consensus?

If your goal is reach consensus on a jury, e.g., the plaintiff(s) or prosecutor

In selecting jurors, many factors must be considered in whom to strike or keep, but open-mindedness and social skill, diplomacy and the ability to be somewhat flexible and less egocentric may be traits to consider, rather than just how smart or well-informed a juror may be. Selecting a juror who is smart but rigid can backfire.

If your goal, on the other hand, is to prevent a consensus on the jury, e.g., the defense

It isn’t as simple as getting a contrasting mix of well-informed and poorly-informed jurors to do the trick of avoiding consensus, but it’s a start.

However, if one camp is meek, inarticulate, lacking in passion and unable to stand its ground, they will reach consensus by merely following the lead – whether of the better-informed or more passionate. Hence, one must consider:

Getting jurors who are:

  1. well-informed mixed with ones who are not well-informed;

  2. passionate for you to win or the opponent to lose;

  3. smart, but somewhat cognitively rigid (i.e., have difficulty changing their way of thinking), fail to reflect upon hearing information in voir dire, show an inability to shift if asked to consider something different in voir dire. Are they open-minded and flexible, showing some transition (bad) or do they freeze/repeat their initial response or fail to respond (better)?


Implications for Expert Selection: Is Your Goal to Dazzle or Teach?

If your goal is to dazzle

Your expert may never be able to teach the subject at issue because it is simply ridiculously complicated and all you hope for is for jurors to a) see them as an expert, b) trust their credentials, and c) trust them and their opinion. If so, someone who displays both forms of bias is the man or woman for you.

If your goal is to teach

Don’t just consider whether your expert is smart. Also ask whether the expert is effective at teaching and persuading others because he or she does not suffer from these cognitive biases. How do you do this?

Assess the expert’s ability to assess and understand the mindset of the uninformed lay person. Can they speak their language? Do they voluntarily offer to translate lingo into lay terms? Do they provide useful analogies for the common person? Can they appreciate the complexity of their subject area for the uninformed or why it might not be interesting to outsiders? Can they make it interesting and relevant?

Whatever you do, be too smart for your own good.


Other A2L Consulting articles related to cognitive bias, jury persuasion, and expert witnesses include:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

Tags: Jury Questionnaire, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection, Psychology, Expert Witness, Persuasion, Cognitive Bias

Millennials and Jury Psychology:  Why Don’t They Follow the Rules?

Posted by Laurie Kuslansky on Tue, Feb 2, 2016 @ 08:49 AM

millennials jury psychology jury selectionby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Baby Boomers (yeah man, those who “grew up” in the ‘60s) raised kids to buck the system. No surprise there. They raised kids to think for themselves, to be more independent and not follow rules blindly, and to distrust institutions.

The result? Millennials (born roughly between 1981-96) are the least religious generation yet. It isn’t that they started off very religious in the first place. They tended to start by being less religious than their parents, and then drop off from there.

This trend applies equally to a distrust of other nonreligious organized institutions such as the labor market, government and marriage, as well as less confidence in the press, government and churches. The study shows, in part, that the biggest shift is the rise of those, heavily represented by Millennials, who claim they do not belong to any organized faith. This isn’t a wholesale rejection of all things spiritual, just of the traditional, institutional variety of beliefs and practices.

How does this relate to litigation and jury psychology?

  1. Historically, jury research has shown that people who are dogmatically religious or are extremely pious tend to see things differently when on a jury, if they do not get exempted based on their unwillingness to judge others. They tend to put a “moral” overlay on the issues being considered, rather than apply a strictly legal standard. Hence, while the defense may pass the lower, strictly legal standard, but not the moral one, the defense may lose for the “wrong” reason. Consequently, defendants have in the past wisely questioned prospective jurors on this issue. That margin, however, is likely narrowing because of the rise of Millennials, so one should reconsider how morality may now play in litigation. If one wants to see morality used by jurors as a filter in judging actions of the defense, avoid Millennials to be safe.

  2. Many cases involve institutions, whether literally or figuratively, e.g., regulators, industry organizations, marriage, contractual agreements and many others. It has long been the practice in litigation for one party, often the plaintiff, to rely on the obligations and expectations imposed by these institutions, but for Millennials, this appeal may well fall on deaf ears. Consider whether to strike Millennials or shift your strategy away from reliance on the responsibilities and rules imposed by the respective “institution” if your jury is heavily stacked with younger jurors. Certainly, you should shade questions in voir dire, if possible, to learn prospective jurors’ beliefs about rule-following and their regard, or lack thereof, for the relevant institutions in your case, not to mention, the legal instructions.

The good (or bad) news, if you have a Millennial juror?

As long as there are older people on the jury who carry more gravitas, jurors won’t likely listen to younger, less experienced and/or less educated jurors. The sense is, “What do you know?” While Millennials may be harmful to your case by themselves, they are unlikely to be determinative. Remember that a jury is a group that interacts together, so before you waste a precious peremptory strike on a Millennial, consider whether he or she has the means, skill and personality in light of the rest of the jury to carry any real weight.

If not? As the Beatles song goes, Let It Be.

Other articles about jury psychology, jury selection, and voir dire from the jury consultants at A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Psychology

Inside Out: Jury Duty for a Jury Consultant, Part 2

Posted by Laurie Kuslansky on Tue, Jan 26, 2016 @ 03:33 PM

10688004.jpgby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

My second day serving jury duty in Manhattan was like being on an episode of Undercover Boss, quietly observing fellow prospective jurors in their native habitat, speaking little, but taking in a lot.

It was especially cold outside and those dressed for success on Day 1 (mistakenly thinking they’d get cut loose early and return to work or life the same day), succumbed to the reality that we were there for at least another full day in the Jury Assembly room, so they dressed down, mostly donning casual clothes and sneakers. Gone were the business suits, uncomfortable dress shoes and the like.

Note to counsel: If you want to spot business-clad types, better catch them on Day 1 before these lines get blurred on Day 2. Inquire how many days someone has been serving on jury duty, since changes occur after Day 1.

Despite the good humor of the clerks, it was still quite tedious to sit for a whole day with little to do. Although there was free Wi-Fi, when 200 people use it at the same time, it goes at the speed of molasses, making the use of most applications futile. Only one panel of about 20 potential jurors was called into a courtroom. Another was called in the afternoon from another assembly room downstairs, where former Mayor Michael Bloomberg was also serving.

On Day 2, more people engaged in conversations than on Day 1, but most people still remained in a cocoon of personal space, sleeping, reading, texting or plugged into phones with headphones. In this decade, you no longer see the older women knitting and the numerous hard copies of books. Roughly a dozen diligent people stayed in the side room using their computers with headsets, making no noise except on their keyboards.

Notes to counsel: Inquire about the most recent book read and in which form (Kindle, hard copy, etc.). Don’t expect to judge based on observation of what they may be carrying. Also inquire how they passed their time while waiting. Those who spent time on their computers seemed more active, diligent, and perhaps generally more information-centric than the rest.

Obedience to “rules” also somewhat loosened on Day 2 as people felt a bit more familiar – whether ignoring the rule not to take or make calls inside the Assembly Room or to respond directly in the main room to their name being called for attendance or a panel.

I can’t imagine the anarchy that awaited Day 3, but fortunately, was spared that as the clerks cut loose the entire group of roughly 200 people when no other courts needed to select a jury by about 4:15 pm.

Although there is some talk about returning to summoning jurors in New York County once every four years instead of every six, for now it’s once in six years. However, since the federal system operates independently and calls jurors every four years, it is possible to be called for federal court after serving in the county. Fortunately, there’s a handshake agreement by which federal court honors proof of service in the county. Assuming all goes right, I won’t be back in court till 2022 – except on the other side, where I normally sit, as a jury consultant observing prospective jurors from the outside in, where the view is much better.

Other articles by A2L trial and jury consultants about jury consulting, persuading jurors, and entertaining a jury:

litigation consulting graphics jury trial technology

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Jury Consultants, Voir Dire, Jury Selection

A Jury Consultant Is Called for Jury Duty

Posted by Laurie Kuslansky on Thu, Jan 21, 2016 @ 10:41 AM

jury consultant jury duty trial consultingLaurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Day 1 (feels like Day 10) at New York State Supreme Court

I showed up early to get a bird’s eye view of the jury experience from a rare perspective: the juror’s. New York County jurors are summoned from Manhattan, Roosevelt Island, and one zip code in the Bronx.

At nine a.m. sharp, the senior jury clerk opened the metal door and let in roughly 200 freshly minted prospective jurors, including me. On a frigid day, it was no surprise to hear a fair amount of coughing, so navigating to a disease-free seat was like skiing a slalom run.

In addition to the jury summons, the courts now request another form asking anonymously for one’s demographics (gender, age, ethnicity) to help the court gauge who is showing up. The information is not available to the public – I asked.

Some improvements (summoning jurors for only two to three days rather than three minimum; summoning jurors less frequently – only once each six years) have been implemented. Other “improvements” to the jury experience – such as providing work space, computers, lots of charging stations, etc. are, sadly, good on paper but a myth, not reality.

Of the approximately 10 desk spaces available in a side room, several were broken and the power strips filled up quickly or didn’t work at all. Of those that worked, oddly, my phone, like me, regained power only weakly after quite some time.

There are four potential reporting areas for New York County jurors. Here, at 111 Centre Street – Room 1121, it is possible to be sent to the same or other buildings for voir dire and/or to serve if chosen. Oddly, while many courthouses have a cafeteria, or at least some sort of hallway refreshment service, the one thing that almost all prospective jurors need, coffee, is nowhere to be found in the building. One must walk – within the 15 minutes typically allotted for a step-out break – two or three blocks to the closest Starbucks or Dunkin’ Donuts and hope that there isn’t too long a line there or at building security upon returning.

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Lunch is typically from one to two p.m. On a slow day, the merciful clerk cut the group loose at 12:30 to return at 2:15 p.m.

The clerks were a bright spot -- a far cry from the old days, when grumpy old men barked orders impatiently at newcomers who dared to ask any questions. The newer ones couldn’t have been more accommodating, amusing and thoughtful. They treated folks with respect and were unexpectedly humorous (advising us to “rough up” the snack machine if it didn’t work and admonishing us not to conduct research to fulfill our “inner CSI fantasies.”)

The clerks did an excellent job pre-screening jurors, explaining all the reasons that duty could be postponed. They were clear that the commitment would not permit any conference calls for work or meeting any other outside obligations during the hours of nine to five. Anyone with doubts was told to reschedule.

People were allowed to keep their cell phones on vibrate, but only to take calls in the hallway. Once one heads to a courtroom for voir dire, phones must be shut off completely (but, at least, unlike in federal courts, one can keep them handy). As a result, the entire area was like Amtrak’s quiet car on the Acela. Do you know what a really quiet, uneventful situation does to people? Yep, you guessed it – it puts them to sleep.

It was a slow day for jury trials (the first day back from Christmas and New Year’s). Only two small panels (about 20 each) were called for voir dire, leaving the bulk remaining to burn time in the jury duty waiting area. Over time, it looked like an airport lounge after many flights have been cancelled, with prospective jurors deteriorating in composure, from alert and coiffed, to taking off their shoes, dropping formalities and falling asleep in progressively awkward horizontal positions of repose.

For me, the day was more fieldwork and fascinating than one with potential to serve as a juror. No lawyer, seeing that I am a jury consultant or learning of my experience working with law enforcement or in litigation, has ever put me on a jury since I joined the profession. My snacks and amusements ran out before the day was done, so despite my fascination with the inside-out experience, after a few hours I too was rendered a slouching, snoring mutt just like everyone else.

I have always had empathy for jurors and have advised lawyers to understand the limits of jurors’ attention spans. Sitting alongside jurors today was a great lesson: the reality is worse than I thought.

So, if you as a litigator do get a juror to pass go and serve on your jury, your hurdle just got higher. They may have been in a stupor for hours or days, just waiting, before getting to your courtroom, so you are starting from behind at getting them to be alert and care. The “general anesthesia” of waiting in the jury area must wear off before they can actually pay attention. And in New York County, it’s an unimaginable horror: they may not even have coffee nearby to help.

Other articles by A2L trial and jury consultants about jury consulting, persuading jurors, and entertaining a jury:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Litigation Graphics, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection

5 Ways to Maximize a Jury Summons Form to Pick a Jury

Posted by Laurie Kuslansky on Mon, Jan 11, 2016 @ 11:02 AM

jury selection form jury summons formby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

We often hear litigators bemoan how little they will learn during voir dire because the judge won’t let counsel ask any questions, won’t accept a jury questionnaire, and barely asks any questions beyond the court’s jury summons form.

As a result, they assume that the entire exercise of picking the jury will be a shot in the dark. We beg to differ. There is a great deal of information – on the lines of the jury summons form and between them – for those who know how to look for it. Here is a guide to help get more mileage out of a jury summons.

1. What’s in a written name?

Something as simple as a potential juror’s signature certifying their responses on the jury form can reveal a great deal, even to an untrained eye.

Does the person include “Jr.”, “III,” their middle initial? Do they include a title, degree or other information (John Doe, M.A. vs. Dr. John Doe vs. John B. Doe)? If so, this suggests potential attention to detail and/or self-importance.

See these famous signatures and notice which seem gregarious, withholding, disorganized, rigid, charming, flashy, disturbed, bold, immature, and other traits:

jury summons form signature

signatures jury selection interpretation jury consultant 

2. Detailed or not?

The simple questions and answers on a completed jury summons also expose a potential juror’s level of detail, accuracy, and whether or not they volunteer information, especially in response to open-ended questions. For example, someone with the same occupation or employer could answer:

Occupation: “Clerk” or “Administrative Assistant and Bookkeeping clerk.”

Employer: “N.Y.S.” or “N.Y. State Dept. of Motor Vehicles.”


3. Learning about their work teaches a great deal about a person.

Typically, a jury summons reveals a potential juror’s occupation, employment status, employer’s name, whether the employer pays during jury service and has more than 10 employees, and the juror’s regularly scheduled work days and hours.

This is a wealth of information, even if no additional questions are asked or answered. For example, whether the juror is or isn’t part of the workforce, the nature of their work, the size of their company, and the regularity of work times all tell a litigator the likelihood that the person can or cannot relate to certain aspects of their client and case, based on their own experience.

The facts that someone is disabled, unemployed or retired, works for a large corporation or small mom-and-pop shop, works the night shift or part-time, is in a white- or blue-collar occupation – all paint a vivid and relevant picture about a potential juror.


4. Do they use an email address or not? If so, which one?

Whether a person provides an email address or not is a useful piece of information. It separates the people who engage in a modern form of communication from those who are more “old school.” In addition, which email domain they use is a window into information as well!

The majority of Gmail and Hotmail/MSN users tend to be younger (under 34 years old) and the greatest proportion who love technology, while those over 34 tend to use Yahoo! and, to a lesser extent, AOL. Gmail users were more likely than any others to be early adopters of technology. Studying reliable sources for data on email users and usage can extend how much you can learn from just this one question.


5. Spelling counts!

To the extent that written responses are missing, not literate, misspelled or grammatically incorrect in any way, you can find clues to someone who will not do well with complex information, documentary evidence, spoken evidence, linguistic challenges, and details, whether due to being foreign born, less educated, less intelligent or challenged in some way.

Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection, Psychology

Why Listening to Data - Not Gut - Pays Off at Jury Selection

Posted by Laurie Kuslansky on Tue, Jan 5, 2016 @ 02:09 PM

7351354.jpgby Dr. Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

You’ll never put a housewife on your jury. You LOVE supervisors. You hate self-employed people.

The problem? You’re basing this on what? A painful past experience? Talking with someone from another case? Your last case like this? Your keen “sense” of who’s bad for your case from years of experience? That’s like using an X-ray from one patient to set the broken bone of another. It makes no sense. In fact, it is likely wrong. Someone could “feel” that everything is fine, while sitting right on top of the San Andreas Fault just before an earthquake.

The facts – not feelings and beliefs – are what matter. Often, the patterns of what appeals or turns off certain types of people are counterintuitive. Sometimes, people similar to the plaintiff support the plaintiff and sometimes, they want to one-up the plaintiff and reject the plaintiff altogether. How to tell? Only by gathering sufficient data for a statistically significant jury profile, based on the data – not by using one’s gut. The same people in one fact pattern applaud and reward the plaintiff, but in a similar one, perhaps in a different venue, or the same venue at a different time – will reject the plaintiff outright. There are various reasons for this outcome:

  1. Timing:  Did the community recently experience a hardship that makes locals weary of handouts? For example, after TARP and the bailouts following the 2008-2009 economic downturn, sympathy for corporate and financial-institution plaintiffs was running very low. Why should the jury bail out the plaintiff when no one is bailing them out as citizens and taxpayers?

  2. Venue: Every place has an identity and cultural values. Perhaps the residents of one area value the great outdoors and freedom, while another region puts a premium on tourism. Perhaps one area appreciates a long history of camaraderie with neighbors or applauds rugged individualism. Each of these values will affect the nature of deliberations, who will be seen as a leader, how dissenting views are handled, and reactions overall to case issues, lawyers and witnesses. Transporting a case from the Southern District of New York to the Eastern District of Texas is like taking it to another planet.

  3. Current events: Maybe the news just made issues in your case topical, so that what you are asking of the jury strikes a nerve. It didn’t before, but now it does.

  4. The case: While different cases may share certain similarities, each is different, whether due to the witnesses, a nuance in the facts, the prevailing law, the judge or other aspects. That is why you don’t just print out your last opening statement and fill in the blanks for the next one. One can love all of one’s children, but each child is different. The same holds true for lawsuits. Each arrives at its own time with its own strengths and weaknesses. No two are exactly the same, unless they are exactly the same. Changing one fact can change everything. Replacing the CEO in one case with another on the stand can make a big difference, and so on.

mock jury webinar a2l kuslansky

As a result, if you have the chance to do balanced presentations for both sides of a case in a mock trial, don’t pull your punches against your client and always have a reliable jury consultant to provide a data-based jury profile. Don’t throw out the X-ray that shows where the fractures are in your case and which jurors are least favorable to you.

At jury selection, a prospective juror may smile and give you a good feeling in court, misleading you to feel in your gut that they like you and thus are good for your client. Usually, that doesn’t work. What drives their verdict decisions often has nothing to do with smiling at you during voir dire. They may think you are attractive or funny or pleasant, thinking all the while as they nod along with you, “He’s so nice. Too bad I don’t believe his client for a minute.” “She’s funny, but I know her client is guilty.”

We have often found that “fans” are your worst enemies because they expect the most, or that people with related experience like to show off as jurors and put your client down, or that for a myriad of other reasons, “good” jurors are actually detrimental, but we didn’t learn this by taking chances. Instead, we learned this by performing reliable statistical tests based on well-designed jury research with representative samples of the jury pool to find out the truth. Sometimes it matched our collective “gut” instincts; other times, it was a surprise, but it was reliable. We applied what we learned from the traits of adverse jurors to the voir dire questions posed and the use of strikes.

If you insist on using your “gut,” at least request that the judge ask the questions needed to reveal if the prospective juror is in fact hostile to your client based on what you have learned from the data. After all, voir dire is not an exercise in making friends, but in revealing enemies, and better to know your enemies than to assume they are friends and be wrong.

Don’t abandon your gut. It has evolved through your professional experience, but ignoring solid data is at your own peril. If your approach backfires, will your client be as satisfied as you are that you went with your gut? It is less defensible, in our experience, and less strategic. There are many reasons one can lose a case. Don’t let your “gut” be one of them.

Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

A2L Consulting Voir Dire Consultants Handbook  

 

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection

Happy? New Year – 11 Top Trends That Will Impact Litigation in 2016

Posted by Laurie Kuslansky on Tue, Dec 29, 2015 @ 10:20 AM

CBP1118598.jpgby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

If you deal with the public, and you wish to influence them, it makes sense to know your audience, who they are and what they believe and don’t believe. A recent report by Pew Research highlights “striking findings” from the past year. Here, we cover those most relevant to litigation and take them a step further, by exploring the implications for trial.

1. Most people (81%) do not trust the federal government “most or all of the time,” the lowest rating in 50 years.

Do you represent a federal agency or quasi-governmental one?

While specific areas of government are viewed as competent, such as in protecting public safety, the federal government does not make the grade when it comes to immigration or helping the poor or senior citizens. Those in public office (a.k.a., politicians) are largely seen as self-serving, lacking the “public” aspect of public service. Hence, wrapping yourself in the American flag may not help your case if your issues overlap those in which the government is most distrusted and rated worst. For details, see: http://www.people-press.org/2015/11/23/beyond-distrust-how-americans-view-their-government

2. The middle class is no longer the economic majority in America. 

The biggest shift is that the rich got richer, while the middle class fell even further behind. In dollars, “middle class” now refers in 2014 dollars to a household income of $42,000 to $126,000 annually for a household of three.

Half the U.S. population is upper or lower class (21% and 29%, respectively); half is middle class (50%) (See http://www.pewresearch.org/fact-tank/2015/12/10/5-takeaways-about-the-american-middle-class/).

How will that impact jurors who missed that gravy train? Strife and resentment are likely to motivate jurors who, in 2016, are judging clients who have enjoyed privilege. Specifically, since 1971, some have done better than others financially:

Who’s doing better?

  • Older Americans (aged ≥65)
  • African Americans
  • Married
  • Women more than men


Who’s doing worse?

  • Lacking a college degree
  • Young adults (aged 18 to 29)
  • Hispanics (driven by the increasing number of Hispanic immigrants)

If your or your client’s household income exceeds $126,000 per year, consider whether you really understand the jury or they will understand you or your client. What are the differences in lifestyle, understanding of financial concepts, points of reference and experiences that may not overlap with about 80% of people on a jury, if not more (since affluent and educated jurors tend to be able to get off juries, especially on trials that last more than a few days).

If the income of your jurors is an important consideration, do whatever you can to shorten the trial (for affluent, white collar, educated jurors) or lengthen the trial (for less educated, impoverished or blue-collar jurors).

Also consider calendar issues when presented with options on scheduling the trial: what other events are popular during certain times and do they help or hurt you? For example, tax season, hurricane season for cruising, holiday season, summer vacation for teachers, etc., can all impact the makeup of a jury.

3. More Mexicans have left the U.S. than entered it!

A combination of family reunification, stricter enforcement of immigration laws and a challenging economy contributed to this shift. Most of the million people who left did so of their own volition. (See http://www.pewhispanic.org/2015/11/19/more-mexicans-leaving-than-coming-to-the-u-s/).

4. More Americans see racism as a big problem.

In a year of painful racial tensions and events, there has been a rise in the number of Americans -- regardless of race or ethnicity and across all regions of the country, with more Democrats than Republicans – saying that our country needs to make changes to achieve racial equality. (See http://www.people-press.org/2015/08/05/across-racial-lines-more-say-nation-needs-to-make-changes-to-achieve-racial-equality/)

5. Baby Boomers (aged 51-69 now)... step aside. Millenials (now aged 18-34) are becoming the largest living generation.

(See http://www.pewresearch.org/fact-tank/2015/01/16/this-year-millennials-will-overtake-baby-boomers/)

Consider the implications of what the jury pool will look like. As it fills with more millennials, revisit their frames of reference and consider weeding out ones that may be outdated or risk your points falling on deaf ears. For example, the oldest Millennials were born when the band Paul McCartney was in was Wings – not the Beatles.

Speaking of Millennials, they rely on social media (mostly Facebook) for news about politics and government, rather than on local TV as Baby Boomers do. (See http://www.journalism.org/2015/06/01/millennials-political-news/)

mock jury webinar a2l kuslansky


6. Of teens aged 13-17 years old now, 71% use Facebook (boys more than girls), 50% use Instagram (girls more than boys), and 40% use Snapchat. Most also use other social media applications

(See http://www.pewinternet.org/2015/04/09/teens-social-media-technology-2015/).

While most (92%) go online daily, about one-quarter go online “constantly.”

Race matters:

  • Smartphones are most prevalent among African American youth (85% have them);
  • “Almost constant” use is more prevalent among African American and Hispanic teens (34%, 32% respectively) than for Caucasian teens (19%).

Socioeconomic status matters:

  • Snapchat is used more by teens from higher household income families, while Facebook is used more by those from lower household income families.

In a few short months or years, these people will be eligible to serve on your jury. How quickly will you be able to provide them with facts? How compelling is the visual aspect you are feeding them to compete with their “norm”? What sources are you using to support your evidence that they will believe when they come of age to serve as jurors?


7. The religious landscape:

People in countries with a significant Muslim population hold negative views of ISIS.

Many people in the countries polled, including Lebanon, Jordan, the Palestinian territories, Indonesia and others, but not Pakistan, held a negative view of ISIS.

(See http://www.pewresearch.org/fact-tank/2015/11/17/in-nations-with-significant-muslim-populations-much-disdain-for-isis/)

In addition, people in those countries also bear increased concern over Muslim extremism. (See http://www.pewglobal.org/2015/07/16/extremism-concerns-growing-in-west-and-predominantly-muslim-countries/).

Islam will grow faster than any other religion in the next 40 years, nearly equaling Christians. (See http://www.pewforum.org/2015/04/02/religious-projections-2010-2050/) and http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/)

The religious profile of the U.S. will change: Muslims will outnumber Jews as the largest non-Christian minority. and more people are disavowing membership in any organized religion.

Consider today’s heavily Christian-based influence on politics and current events as “mainstream,” and how this may shift as the pulse of the nation shifts, including in the courtroom.

 

8. The United States’ near record immigrant population

The imigrant population (14%, largely Latin American and Asian) is expected to increase to almost 1/5 in the next forty years (18%). Until they achieve citizenship status, they cannot serve on juries, even though they will make up a significant portion of the population and impact local – if not national -- opinions.

Is your client or adversary foreign born? How will a growing foreign presence impact community views and will they be more positive and accepting or more separated and hostile? Time will tell, although the advent of a growing number of multiracial individuals in America has helped increase racial tolerance.

 

9. Almost 7% of Americans are multiracial, one of the fastest growing groups.

(See http://www.pewsocialtrends.org/2015/06/11/multiracial-in-america/).

Views about race and identifying with a single race are changing. These views also affect which group multiracial individuals believe they belong to and are, in turn, accepted by or not. Prior divides will become less distinct, so to the extent that race is an aspect relevant to your case, understand how the changing jury pool may have different views and don’t expect stereotypes to apply. Someone you think is one race may or may not see himself or herself that way and, in turn, may or may not identify with someone of the same race as you think.

10. The “truth” may be hard to sell: the public’s view of science and society differs from how scientists see them.

(See http://www.pewinternet.org/2015/07/23/an-elaboration-of-aaas-scientists-views/).

Some ways that scientists and the public are out of sync:

 

% Scientists Agree

% The public Agrees

GMO foods are safe to eat

88%

37%

Favor using animals in research

89%

47%

Foods grown with pesticides are safe to eat

68%

28%

Climate change is mostly due to human activity

87%

50%

A growing world population will be a major problem

82%

59%

Favor building more nuclear power plants

65%

45%


What will it take to close the gap if you are relying on science or other experts to win your case? Can you? Should you? Can facts outweigh jurors’ emotions, fears, concerns or beliefs? If not, should you revisit which experts to present and which facts are worth pursuing, or are they such uphill battles that, even if true, they cannot overcome public beliefs?

For example, although it is factually true that hypoxia caused by a loss of oxygen in the cabin of an aircraft may cause a slight sense of euphoria before unconsciousness sets in, no juror will receive this as good news or rely on this type of scientific testimony to mitigate the pain and suffering of doomed passengers falling to their imminent deaths.

Similarly, although reliable scientific data show that the wage gap between men and women in the workplace is caused significantly by women’s own life choices, socially evolved jurors resent and reject this data and find socially redeeming reasons to dismiss it (“Who else will have babies?”), rather than use it to mitigate liability or damages against employers accused of gender discrimination. On the contrary, many jurors believe the workplace should create a way to even the scale to compensate for those life choices as a form of affirmative action based on gender.

 

11. The scale has finally tipped globally to accept that climate change is a serious problem.

(See http://www.pewglobal.org/2015/11/05/global-concern-about-climate-change-broad-support-for-limiting-emissions/).

There are regional differences, so you must understand local beliefs and the role of climate in the venue before jumping into the jury pool if any issues in your case relate to issues of climate, climate change or global warming.

Other articles about understanding jurors and jury consulting by jury consultants at A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Demonstrative Evidence, Juries, Jury Consultants, Science, Jury Selection, Psychology

Group Psychology, Voir Dire, Jury Selection and Jury Deliberations

Posted by Ken Lopez on Wed, Oct 21, 2015 @ 01:04 PM

mock-jury-jury-selection-jury-consultants-voir-direby Ken Lopez
Founder/CEO
A2L Consulting

Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I've been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I've ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure.

I think the author Robert Young captures the essence of the group dynamics model Bion describes when he says, "My experience was that, sure enough, from time to time each group would fall into a species of madness and start arguing and forming factions over matters which, on later reflection, would not seem to justify so much passion and distress. More often than not, the row would end up in a split or in the departure or expulsion of one or more scapegoats."

I've written about Bion's work before in 5 Signs of a Dysfunctional Trial Team (and What to Do About It) and When a Good Trial Team Goes Bad: The Psychology of Team Anxiety. These articles and Young's article from the Human Nature Review provide a good introduction to Bion's group dynamics model. Here are the key aspects of Bion’s group dynamics model.

In Bion's framework, groups are always functioning in one of two modes. Either they are working or they are operating dysfunctionally (he called this later state the Basic Assumption State). Both groups rely on a leader, and the members interact with the leader in predictable ways. In the working group, the group gets things done. They understand the meaning of the task at hand and cooperate to get it done without unnecessary emotional distress.

In the dysfunctional group, much less gets done, and the group moves through a progressively worse set of dysfunctional behaviors triggered by some anxiety or pressure. Initially, the dysfunctional group will attempt to look to the leader to make the anxiety go away by treating the leader as a type of wise superhuman. If that fails to make the anxiety go away, two or more members of the group will begin to conspire to replace the leader or form a new group, If that does not work, fighting and/or departures will begin. All of this is subconscious, but once you understand the patterns, you'll see them everywhere. Knowing where you are in the process of dysfunction can be one of the most valuable tools a manager, leader or consultant can have.

I bet you can guess another group that behaves in predictable ways that I have an interest in — that's right, juries. And they certainly behave in ways that solidly fit Bion's group dynamics model. If you understand how this works, you can use this knowledge during jury selection.

Our team has seen thousands of juries deliberate. That's unusual since jury deliberations are secret. Of course, when we see them deliberating, often four juries at a time, it is behind the one-way mirrors of mock trial facilities. The behavior we see from jury to jury is remarkably consistent. We've detailed some of these behaviors in the article 10 Things Every Mock Juror Ever Has Said and the webinar and the podcast 12 Things Every Mock Juror Ever Has Said. Furthermore, an article by A2L's Managing Director of Jury Consulting, Dr. Laurie Kuslansky, called 10 Ways to Spot Your Jury Foreman is a useful background piece for those interested in this area of study.

When a jury is operating effectively (a well functioning working group as described by Bion), it focuses systematically and logically on the task at hand. This jury moves through the evidence in an orderly way and avoids a result-driven approach to deliberations.

There is much that a litigator can do to help a jury operate in this way, including explaining to the jury how to calculate or why they shouldn't calculate damages, illustrating how to work through the verdict form, and making the case clear and compelling through the use of storytelling and professionally designed demonstrative evidence.

But, what if a jury becomes anxious? What if unanimity is required and there is a holdout (e.g. 12 Angry Men)? What if there is strong disagreement among jurors? What if the case is hopelessly confusing? Under these circumstances, a jury can become dysfunctional. Unfortunately, this happens more often than it should.

I asked our own Dr. Laurie Kuslansky about the application of group dynamics to juries, and she shared some key ideas to remember.

"Most jurors start out with a false consensus," she said. “They believe everyone will think the way that they do. If we do not screen for leadership and get the right amount on our jury, a jury becomes far less predictable. This is especially true if we are in a venue where it is socially acceptable to stand your ground like the Southern District of New York."

Juries are not irrational, they just look at things differently than a lawyer. They are looking for experts in the group, and they are looking for leadership. As we help to assemble a jury during the jury selection process, a key part of our job, both as jury consultants and as litigators, is to ensure the right types of leaders are present. If we do our job well, we can achieve better control over group dynamics.

Other articles and resources related to group dynamics, jury selection and jury consulting from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Jury Consulting, Jury Consultants, Voir Dire, Jury Selection, Psychology, Leadership

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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.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@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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