There’s this legend that persists about pretrial jury research. No one knows how it started. Those who first told the tale have probably litigated their last and have gone on to emeritus status. The legend persists and it begins with, “There is a tool so fearsome and dear that only the rich and the brave ever even inquire about using it. It’s called the “Focus Group” and is so lethal that one must only use it just before trial and then only when the consequences of failure are dire.” Except for a few folks, almost every trial attorney I know has at one time or other either heard the legend or retold it to the clinking of ice and rising smoke of a sacred Cohiba. Partners, Stake Holders and Acolytes nod their heads in silent and knowing agreement. The legend persists mythically, for like the dragon’s lair, most knights avoid confirming weather the Lizard King actually breathes fire.
Jury research is a valuable tool for understanding and developing your case in every stage of preparation. Below are a few benefits of conducting jury research in preparation for settlement conferences and mediation. The core benefit of such preparation is to identify in advance how the elements and narrative of the case will play with the fact finders rather than to float your case out merely on the strength of your ardent advocacy. Here are some more arrows for the pre mediation quiver:
- Doing the research early in discovery and ongoing allows you to find and fix problems in the case long before it’s crunch time.
- You’ll learn just what jurors want to know and what they make of what they learn.
- You’ll find out how to target discovery in a manner that addresses what the jurors want to know.
- You’ll develop congruent and persuasive case themes and narratives that bind your facts and evidence into a readily digestible story.
- Disclosing the fact of your research during mediation shows your superior level of preparation and that can provide a psychological advantage from the start.
- The research results will pre-arm you with a clear understanding of the strengths and weakness of your opponents case which can aid you in countering issues in the mediation.
- Use your research to let the opponent know that you have discovered and targeted their vulnerabilities.
- Your research can survey prevalent attitudes and expectations that will play out in the juror deliberations. You can use that information to persuade your opponent that you have learned from your research how to take best advantage of what helps you and best advantage of what hurts him.
- Use what you’ve learned about the jurors sentiments regarding damages to drive higher settlements or stick a pin into grandiose dollar demands.
- Rely upon professionally designed and valid litigation research rather than your “gut feeling” or the strength of your chest pounding.
Jury research, in order to be reliable and valid, needs to be carefully designed with an eye to the standards of social science research. Validity can be adversely affected by poor sampling of the venire in recruitment and sample size, disclosures to the jurors that result in “satisficing” responses intended to give the attorneys what they apparently want, poorly conceived and conducted presentations (especially of the opponent’s case), and the inherent bias of the sponsoring attorney who is never able to give equal shrift to both sides of the case.
The “talking points” that emerge from pre trial/mediation research are powerful adjuncts to your case preparation and take your advocacy to higher levels of proficiency and preparedness for your clients. Sponsor pre trial/mediation research early in case development. It is an investment that pays off in efficiency, relevance and the horsepower of your case advocacy.
Photo: http://www.flickr.com/photos/myrfsphotos/2654992300/in/photostream
When Uncertainty and Anxiety Rocks a Person’s Life, Everything is a Threat
We are Borg. Resistance is futile. Welcome to the Wired Collective.
The Only Thing Worse Than Peremptory Strikes Is Losing Them.
The utility and fairness of peremptory strikes has been the subject of discourse in the media, within blogs, and post jury selection in courtrooms and law offices of late. Opponents cajole that peremptory strikes are often capricious, discriminatory and patently unfair to the venire persons subject to the process.
Nathan Koppel in the March 5, 2009 Wall Street Journal intones: “In the interest of fair trials, attorneys can dismiss people from jury pools for dressing strangely, for being fat, even for just looking at them funny. What lawyers can’t do is dismiss potential jurors based on their race, gender or ethnicity. Yet, attorneys and academics say, it happens all the time.” Three Strikes and You’re Out? Critics Seek Juror-Dismissal Cap
Apparently, Mr. Koppel hasn’t read the plethora of “how to get out of jury duty” material on line. How to Get Out of Jury Duty. Wearing a t-shirt emblazoned with “Barbie is a Slut!!!” will do it every time. Why in the world would any litigant, defendant or the State want someone with this intention and attitude making serious decisions? D’oh!
The snarky ridicule above suggests that the motives and rationale for elective strikes are superficial and shallow… or sinister. Through this argument the writer seeks to dismiss the process, purpose and the product of effective, thoughtful inquiry in voir dire and paint it with the broad brush of taint. He wants us to believe that any point of view and any potential juror is as good as the rest when it comes to fair and impartial. He asserts that because the peremptory process might be misused, it should be abandoned. He’s wrong and here’s why:
We are as a species riddled with cognitive and emotional biases and partialities. Many of us proudly wear our prejudice out into the marketplace. Most of us are blind to ourselves. If human beings were sublimely self aware, imbued with perfect honesty, acutely reasoned and rational, untroubled by strong preferences, unfettered by faithful adherence to unquestioned beliefs, ruled by compassion and fair play, and born to Vulcan parentage, there would be no need for the peremptory strike. A straight question regarding bias or predilection would result in a straight answer and the cause strike would suffice.
Peremptory strikes are an effective way to remove extremes of partiality. By nurture and nature, jurors and other humans acquire beliefs, prejudices, cognitive short cuts, and heuristic biases that bracket and define our capacity to experience and conceptualize “reality” as we see it. These predilections are the “truth” as we know it and will circumscribe our capacity to weigh and measure the facts, testimony and arguments proffered in trial. Extremes of partiality affect the capacity of an individual to follow the instructions of the court and render the parties fair and impartial justice.
Perhaps the best reason to support peremptory strikes is to cure erroneous refusals by the trial court to excuse jurors for cause. You can’t assume the judge really cares or understands the issues in your case as well as you do and you have the obligation of effective advocacy… Hizzoner doesn’t. I’m not big on judge conducted voir dire.
Litigants and defendants have the right to competent representation. Whether competent means clever is another matter. One thing is clear: it’s clever to probe for partiality and get the cause strike if possible. Competent counsel should be acquainted with the abundant social science research pertinent to trial practice in the area of decision making, cognitive and emotional bias, prejudice and partiality, etc. Competent counsel will use that knowledge base to form incisive and probing questions for voir dire. Competent counsel will have refined those questions into conversational invitations to the panelist to self disclose. Competent counsel will welcome and encourage disclosures from the panelists that are adverse to the case. Competent counsel will be unrelentingly polite all through voir dire. Competent counsel will apply judgment with discretion and discrimination when pursuing the cause strike and reserve the remedy of the peremptory for the necessary culling of the partial or probably partial panelist. Competent counsel will know that attitudes are more important than demographics always. Competent counsel will use a peremptory strike on the strangely dressed fat man who simply looks out of place when it serves the advocacy of his client and the issues of the case.
Count me in as a proponent of peremptory strikes. Until my crystal ball comes back from the shop, I want to be able to use my judgment and my strikes to deselect and get the fairest panel possible.
Photo: http://www.flickr.com/photos/emilyjh/134153057/ Read more
When things go very wrong or very bad for a large number of people, it can have a significant effect upon the way they and others close to them think, feel and behave. 911 changed the way New Yorkers and frequent flyer’s experienced their world. The people in the Twin Towers experienced extreme direct trauma, the first responders experienced direct trauma, the friends and family of the victims and the heroes experienced the trauma of their fears and losses.
The rest of us experienced 911 through the ubiquitous lens of the media, with repeated viewings of the tragedy of the Twin Towers collapsing, people running in grimy panic, and the walls of pictures of the dead and missing. The rest of us were buffeted by vicarious stresses and trauma, but very few if any of us experienced 911 directly. There is no doubt that 911 invaded and pervaded our national psyche and introduced a level of uncertainty never before part of our way of being.
This vicarious trauma, fed by persistent media revivification and a political war footing expanded the scope of the direct effects and soon there were American combatants leaving their families and jobs for battle. More trauma from more places and more often. Loved ones were dying in foreign wars. 911 leads to Afghanistan and to Iraq and to “The War Against Terrorism”. From vicarious stress to direct trauma. Like concentric waves from a stone dropped in a still pond, the shock, uncertainty and pain spread throughout the populace. Still, while touching nearly all, this pain has not affected all.
The current shock wave reverberating through the populace has been called, “The Worst Financial Crisis Since the Great Depression”. The comparison to 911 requires us to recognize that this mega-event is tantamount to a tsunami of devastation that has affected the wealth, hopes, dreams, economic stability, jobs and day to day reality of the entire population. This economic trauma far surpasses 911 in its affect on the day to day thinking, feeling and behavior of our citizens and jurors. The uncertainty of another “terrorist attack” within the continental United States pales in comparison with the certainty of unemployment, loss of health coverage, mortgage stresses, gutted 401k’s, losing your home and being “upside down” in a mortgage that eclipses the worth of your home. 911 rocked us back on our heels; the Economic Collapse threw us to the floor. It is a protracted time of growing uncertainty and anxiety. There is plenty of evidence in national polling that shows despair and distrust in our national government, big industry, big finance, big business, and almost any other previous edifice of trust and reliance for a better, safer and predictable world. It is easily the worst of times, at least compared to the prior 50 years.
World changing events create experiences that shape the world view and spirit of the times. These pivotal events shake previously held beliefs and values and facilitate fundamental changes in the way we think, feel and act. Those of us fired in the kiln of earlier epochs will tend to hold to those traits and beliefs brought forward. Those of us forged in the immediacy of this uncertain world will bear the defining marks of this world as it is as they have known no other. The events of today are shaping the new jurors of 10 years from now and creating a state of uncertainty that affects our jurors of today.
The question I’ve been hearing most often from trial attorney’s is, “What effect is the general economic downturn having on verdicts and damages?” It’s still unclear. Every fact pattern, every jury trial is a unique set of characters, issues and evidence. I think it may be too early to tell exactly what the impact of the Economic Crisis is and will be. Yet, this is a question that must be explored and studied systematically rather than anecdotally.
Attorney lore opines that hard economic times are good times for plaintiffs. The high levels of stress, anxiety and depression in the populace leaven a potential for strong emotional reactions to issues of fault and harm. Affect drives action. This could be good for plaintiffs. On the other hand, the “bowling alone” effect and decrease in actual community membership may induce individual jurors to simply take the position that, “I’ve got it bad, too. Nobody is reaching out to help me and I have done everything right!”. Generosity and empathy do not necessarily expand in times of general economic hardship. In fact, a la Maslow, under times of stress, we regress. It could be a time of the great selfishness.
Trust in institutions is in the crapper. Polling shows that the anger and dismay created by fundamental violations of trust by core social institutions has eroded the good will directed toward Business and Industry. It may not be a good time to be a Corporate Defendent… but it’s too early to tell. The debacle of our credit, lending and financial institutions has created a credit and mortgage crisis. Even folks who did the right thing are “up side down” on their mortgages and folks who have never made a late payment on their credit cards are being notified a interest increases in the mid to high 20%. Doing the right thing doesn’t make you safe.
What is known is this: There is a predominant direct and personal experience of financial hardship and economic uncertainty extending to all socio-economic levels. The working poor, working class and lower to middle class are hit hard and likely most dispirited. The upper middle have seen their investments and pensions evaporate before their eyes, creating distrust and anger. Even Donald Trump has been forced to file for Chapter 11 bankruptcy in his Vegas gambling hotels. GM and Chrysler are on the chopping block and nobody, not even the Japanese are making any money selling cars.
Expression of angst, anxiety, uncertainty and anger are replete in national polls, op/ed pages, and talk around the water cooler. Anxiety and depression levels are rising and are associated with the financial stresses currently increasing. Daily national media reports ra-ta-tat like hail on a tin roof and are inescapable. The political rancor and debate seems effete and ineffective as our political leaders and political parties fail to lead or have any vision. Huge “bailout” numbers are bandied about making the reference points of Bob and Mary Sixpack’s pay check seem like nickles and dimes. People feel small, ineffective, overwhelmed, helpless and stuck. Uncertainty pervades and the opportunities for the individual to effect any change or improvements, even in their own lot, seemingly pales to the immensity of the economic situation.
In a time where there are no clear answers, it is critical that the wise create good questions. Talking to your neighbors (especially those you aren’t professionals) about their views and experiences is a very good way to take the pulse of the community. Read the paper focusing upon Op/Ed materials written by local citizens. Go on line and search for blogs and discussion threads on the economy, especially about the personal impact. With no doubt, pre trial or ADR research on how real people of the real world evaluate, describe and react to your case is indispensable. Use focus group research and national polls to compose voir dire and supplemental juror questionnaires. Voir dire extensively on the direct impact of the economic toll with your venirepersons. Remember that this is new ground and we are trekking through a dynamic and changing environment.
When exploring new ground, do not hold too tightly to what you think you know. Assume that the meaning of what you see and hear is still developing. Ask questions. Lots of them.
