by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
With so few peremptory strikes available in most cases, there are two contradictory schools of thought:
(1) We have to make the most of each strike; and (2) It doesn’t pay to invest too much in jury selection.
Both statements are true. However, the optimal solution for each differs:
(1) Use your strikes to eliminate the most hostile people; and (2) Create a trial strategy that overcomes the concerns of the remaining antagonistic jurors.
Jury profiling is the application of real world social science: a reliable statistical model informed by the experience and insights of a trial consultant who uses data to assist trial teams in understanding the variables of choosing potential jurors. Of vital importance in this process is learning which people to avoid, by using pertinent information to guide the jury selection process. The danger lies in overlooking factors more relevant (and subtler) than mere demographics, such as who will be most influential in the jury (not necessarily the foreperson) and how influential the foreperson will be.
Academic studies show that the most influential jurors tend to be extroverted, agreeable, conscientious, and emotionally stable. Equally important is knowing which jurors will be receptive to persuasion and influence. In other words, who will be the leaders and who the followers?
Research confirms that even nowadays, male jury members are perceived to be more influential than women. It also reveals that conscientious people (those willing to consider all opinions before deciding) and people generally less “open” are the ones most likely to report post trial that they were influenced by others.
Some litigators can spot these characteristics easily, but such people watching is an unreliable art. Identifying traits in human behavior requires more than opinion. Without the guidance of reliable data regarding what does and does not work, many trial teams operate in the dark at jury selection and trial.
Despite a great deal of observable, inferable, and learnable information that a skilled trial consultant can observe and interpret quickly to the trial team’s benefit, most of the available information goes unused without the benefit of a trial consultant.
How do trial lawyers know what to look for in voir dire, and how do they use that information in jury selection? Some litigators dismiss jury psychology outright, despite its potential as the best source for understanding jurors’ needs. Lawyers unfamiliar with how profiles work are skeptical and rely on their own and others’ experiences to conjure the kinds of jurors they want. The important question is, what plan do you use?
Whether due to skepticism, unfamiliarity, or cost containment, some trial lawyers conduct their own in-house jury “research,” typically using a spouse, the secretarial pool, or employees of local counsel (known as a “convenient sample”) to determine possible juror attitudes. This approach can do more harm than good. Using a sample that is too small, not a representative cross section, and is obviously biased limits your ability to predict how people on a real jury will react to your case. Just because people you pay or who are supportive of you or your firm see things one way is no reason to believe those reactions will be duplicated by actual jurors.
For one thing, a jury will not share the same motivations as your familiar audience. In addition, the number of people with whom you test arguments/strategies represents too few examples of any specific factor (e.g., gender, age, experience, etc.) to allow you to say with any certainty whether potential jurors with similar traits share anything in common with your sample. Nonetheless, even experienced lawyers use this approach to decide which jurors to watch out for and what works for the jury. Why not? It’s free, it’s easy, and it has worked for them in the past. Invariably, however, those who try this realize its limitations afterwards.
This is the second in a series of five posts on jury selection and trial consultants. Next: Does it make sense to follow your instincts about a juror?
Articles on A2L Consulting's site related to jury selection, mock trials, trial consulting and persuasion:
- Part 1 of this 4-part article series focused on jury selection and jury consulting
- A2L Consulting VOTED #1 jury consultant by the readers of LegalTimes
- [Complimentary 174-page e-book for litigators]: Jury Consulting Guidebook & Tips for Litigators
- Jury Selection: Don't Ask Ask, Don't Know
- Is Hiring a Jury Consultant Really Worth It?
- Learn More About Our Jury Consulting Services
- 10 Ways to Spot Your Jury Foreman
- A2L Named Top Demonstrative Evidence Firm In US