Few resources offer more valuable information than post-trial interviews with jurors who just decided your case. These post-trial interviews are especially beneficial in situations where litigation of a similar type or with similar themes is expected in the future. The feedback jurors provide can include their reactions to key themes, arguments, witnesses, graphics, demonstratives, and even evaluations of each side’s presenting attorneys. In essence, these trial jurors are the ultimate focus group, appraising how the information was presented and, more importantly, how it was understood and discussed in the deliberation room. This provides a window into how the group reached its ultimate verdict.
And yet, interviewing jurors post-trial can have adverse consequences. Consider the following: Earlier this year, a Florida attorney was sentenced to six months jail time for contacting a former juror without the consent of the court. In fact, such contact has been highly controversial since the 1978 case of United States v. Sherman. In this case, the judge declared that such juror contact might interfere with defendants’ sixth amendment right to a fair trial and jurors’ right to be protected from harassment. The appeals court, however, disagreed and permitted the interviews. In subsequent cases, judges have allowed post-trial interviews – sometimes with certain restrictions – or have prevented them from occurring entirely.
Due to the disparate rules throughout our court system, juror interviews can be fraught with challenges, turning a potential gold mine of valuable information into a potential minefield. The following are some simple guidelines for conducting successful post-trial interviews.
- Secure Permission. Before beginning the interview process, be sure to receive the judge’s consent. This protects you should any issues arise from such conduct or contact. Similarly, ask the judge to advise jurors that they can discuss the case with others once a verdict is reached. Often, jurors question whether they are even allowed to talk to the trial team and the trial consultants following a verdict. Rather than leaving jurors to wonder, it is advisable that the judge inform them of the rules ahead of time.
- Never Pressure a Juror to Talk. This may seem like a simple rule, but it often gets overlooked. Given the emotion and excitement after trial, it is understandable that an attorney would want to garner as much information from jurors as quickly as possible – but some jurors may not wish to reciprocate. One way to make jurors more comfortable is by telling them that they do not have to answer any questions that make them uncomfortable and that they can stop the interview at anytime. This puts the ball in their court. And if you get a sense that a juror is still uncomfortable, back off.
- Establish Rapport. Obviously, there are a multitude of reasons to connect with your jurors; one is that after trial they will be more apt to answer your lingering questions. If your goal is to simply talk to a handful of jurors for a few minutes, they will be more likely to talk to you if they feel a personal rapport or connection with you. This connection can be established as early as voir dire, and the more you build that connection, the more likely it is they will talk to you once trial is over.
- Work with a Third Party. The benefits of using a third party to conduct post-trial interviews include their ability to elicit candid opinions – the kind that jurors may not feel comfortable sharing when face-to-face with the actual attorneys. One suggestion for more comprehensive interviews is to use a consulting firm. Consultants are trained in social science-based research and interviewing techniques. For example, here at Litigation Insights we work in collaboration with the trial team to formulate an interview guide that ensures the necessary information is gleaned in accordance with the trial team’s goals, and questions are asked in a way that avoids inadvertently leading the jurors. Additionally, a good consulting firm will save you time because they possess an established interview protocol and methods for obtaining juror contact information.
- Don’t Forget the Logistics. When will you call the jurors? It’s important to be cognizant of job schedules. If you expect to reach people during standard 9-5 business hours, you will be disappointed. How long will the interviews take? Some jurors perceive these interviews as an imposition, especially if they were seated on a lengthy trial. In recognition that their time and opinions are valuable, some interviewers offer them an incentive to participate. This can be a double-edged sword; you do not want the jurors to feel as though they are being bribed. What is the best use of time for you and the juror? Given the limited amount of time most people have to participate in an interview, it is sometimes best to ask a smaller number of your most important questions than attempting to ask a large amount of questions. Additionally, asking open-ended questions is more likely to result in meaningful insight than asking questions that can merely be answered with a “yes” or “no.”
By following the guidelines above, you can ensure you gain the most from your post-trial experience – and that you won’t end up like the attorney from Florida.
By: Jessica Baer, M.A., Consultant and John Wilinski, M.A., Consultant