Clients frequently ask our consultants, “What type of people do I want on my jury?” This is often followed by a series of questions such as, “Are men or women better for us?” or “Do we want older or younger jurors?” “Who is the ideal juror for my case?”
Identify Your Riskiest Jurors: Think of it as Jury De-Selection, not Jury Selection
Given the importance of identifying the riskiest jurors for cause strikes and peremptory challenges, we think of the process as jury de-selection. During voir dire, it may be tempting to want to find and talk with jurors you like for your case; it helps makes you feel confident that there are jurors in the courtroom who will echo the themes and arguments of your case. It can be difficult to put that urge aside and instead talk with jurors about the weaknesses in your case that you anticipate the other side will exploit. It can be very uncomfortable to listen to jurors say negative things about your case and your client. Still, the most important thing to remember is that if you identify jurors favorable to your case, those same jurors are the worst jurors for your opponent, so you’ve done opposing counsel a big favor by identifying and prioritizing their cause and peremptory challenges.
The better question to ask is: “Which jurors pose the greatest danger to my case?”
Know the Goal of Your Verdict
The goals are different in every case. For some cases, the goal may be attaining a full defense verdict or zero dollars in damages. In others, liability may be evident, so the goal becomes minimizing damages. In terms of group dynamics, it will also be important to know whether your jurisdiction requires a unanimous verdict or merely a super majority. Knowing your verdict goal is key because it will shape the focus of your voir dire questions, and risk factors can vary greatly amongst different cases.
Demographics Are Rarely Predictive of Juror Verdicts
Unless your case involves discrimination or issues directly related to a specific set of demographics, such characteristics have very little, if any, influence on a juror’s verdict leaning. Every woman is different and has different attitudes and experiences. Every African American is different and has different attitudes and experiences. And so on – for every single demographic there is. If that’s the case, what matters? A lot of other important things, such as:
- Personal experiences, specifically those that mirror the experiences of parties and witnesses in your case.
- Attitudes related to your case themes.
- Attitudes toward government regulation.
- Attitudes toward jury damage awards.
- Feelings of victimization or fatalistic views (i.e., feeling no personal control over one’s outcome and at the mercy of the hands of fate).
- Type of job – does the juror work in a helping, service, science or management position? What jurors focus on every day for work can offer insights to their interests, attitudes and experiences.
Jury Research Can Develop a Statistical Juror Profile – Predictive Factors to Identify High-Risk Jurors
Although there are several reasons to conduct mock trials and other jury research – honing your case story and themes being a big one – the data collection that takes place during such research can lead to a statistical profile of the riskiest jurors for a specific case. At Litigation Insights, we use that statistical profile to develop a Supplemental Juror Questionnaire (SJQ), voir dire questions, and a strike/cause profile that is aimed at identifying your bad jurors without exposing your good jurors.
In some cases, this quantitative data collection can be quite powerful, offering a whole host of risk factors to target in voir dire and ultimately jury de-selection. Those distinguishing risk factors vary case to case, but with enough data for statistical analysis, can have reliability and predictability in a particular case. In serial cases on the same issue with combined datasets over time, the risk factors and validity of the data solidify and offer long-term guidance on which jurors are dangerous for your client’s case.
Litigation Insights does not simply conduct qualitative reviews of deliberations or other juror data to determine a jury profile and risk analysis. Instead, we scientifically identify our strongest pro-plaintiff (and often pro-damages) jurors and the most ardent pro-defense jurors, pitting them against each other in statistical analyses that narrow the most important factors via the data. Our consultants can then take this valuable information and look at it in its entirety, offering true insight into the constellation of key attitudes and experiences that will identify our greatest risks in jury de-selection.
At times, with a large enough dataset, we are able to run deeper and more complex statistical analyses (i.e., regression models) to not only winnow down the risk factors to just a few, but also use those statistics to develop a Risk Score that can be applied to each juror during voir dire based on their responses to direct questioning.
Don’t Miss Out: Researching Jurors’ Social Networking Can Raise Red Flags
Sometimes you only have 15 minutes to find out in voir dire what a juror’s background is like, which makes it that much more important to do your due diligence in finding out what a juror’s life is like and his or her probable attitudes and experiences. At Litigation Insights, we have a specialized service that researches jurors’ backgrounds and online profiles for use in jury de-selection, helping to round out what we know about jurors, especially during trials where voir dire is limited. Find out more about our service by clicking here.
(This article was originally published in the February 2015 issue of The Jury Expert)
By: Jill Leibold, Ph.D. – Director of Jury Research