Deliberations

5 Things to Consider for Post Trial Juror Research

By Alexis Knutson

My relationship with post trial juror interviews is complicated. On one hand, this service is one of my favorite that we provide as trial consultants. I speak to the jurors when they are fresh from their duty, still buzzing from the excitement of deliberations and ready to talk about the experience they haven’t been allowed to talk about for days, weeks, or even months. On the other hand, there are some aspects of this type of research that can lead to unnecessary frustrations if not handled proactively. Following the five steps below will help to ensure your next post trial juror interviews go off without a hitch.

1. Ask early if interviews will be allowed. If there is uncertainty in the laws or court rules regarding post trial juror interviews, you (or more likely your client) should ask before the end of trial if the judge will allow them. In some jurisdictions, it’s never allowed. In others, it’s up to the judge’s discretion whether or not they will allow interviews. It’s best to know before the end of trial whether this will be an option if it’s something your client is interested in pursuing. If your client doesn’t request post trial interviews until after the trial is complete, your client should confirm that contact isn’t prohibited before you begin asking jurors questions.
2. Get jurors’ contact information. A lot of time can be spent searching for jurors through social media, internet searches, and other databases for contact information. And even if you find a person by the juror’s name, the information isn’t guaranteed to be accurate. Time spent searching for jurors can become an unnecessary headache for both you and your client. If the judge will allow it, approach jurors before they leave the courtroom to get accurate names, telephone numbers, and email addresses, as well as their preferred method of contact.
3. Contact jurors as soon as possible. It doesn’t take long before the novelty of having served on a jury wears off and jurors get back to their everyday lives. If you wait too long, it’s easy to miss the window of opportunity to get them to agree to an interview – and in this case, “too long” can be mere days after a verdict is reached. Be prepared with interview questions before trial ends so you can dive into interviews right away. If your client does not ask for juror interviews until after the trial, work quickly to create interview questions and start contacting jurors as soon as possible following delivery of the verdict.
4. Weigh costs and benefits of in-person versus phone interviews. There are pros and cons to in-person versus phone interviews with jurors. If jurors are willing, meeting face-to-face on the same day the verdict is delivered, or the day after, is a great time to catch them while interest is at its highest. They will be most likely to offer specific details about their deliberations, and if that’s what your client aims to get from interviews, time is of the essence. However, phone interviews are often most convenient for jurors, and allowing a day or two to process what’s happened in trial may give jurors more insight into the big picture of their experience.
5. Reference the ASTC Professional Code. Practice Area E of the ASTC Professional Code provides guidelines for conducting post trial juror interviews. If you haven’t already, review these standards early to ensure you’re complying with applicable laws and meeting your duty to both your clients and the jurors.

Alexis Knutson, M.A., is an Associate Trial Consultant with Tsongas Litigation Consulting. Her work focuses on assisting counsel in devising comprehensive trial strategy through case consultation and pre-trial research. Alexis received her Master’s Degree in Psychological Science with a focus in law from University of Colorado - Colorado Springs, where her research focused on attorney use of small group research to inform settlement decisions and juror internet use during trial. She is a member of ASTC and Chair of the Professional Education Committee. She can be reached at [email protected].

Just When You Thought it was Safe . . .

By Daniel Dugan

Just when you thought we had gotten past having to explain Gene Hackman’s unethical behavior as a trial consultant in “The Runaway Jury,” “Bull,” the TV show on CBS steps in.

Bull tends to espouse two things that real-world trial consultants never do:

1)     He says he hates attorneys;

2)     He talks about manipulating jurors.

#1 is just patently wrong and not worth my time discussing, so let me move on to #2:

Maybe I'm just mincing words so I feel good about myself, but let me start with an analogy . . .

I am a cyclist.  I race.  My specialty area is the time trial--each rider rolls off the start line individually at 30 second intervals and it is a race against the clock.  Once everyone is done, times are listed from fastest to slowest.  During the race you have no idea what place you are in. 

For my last race I was 100% compliant with my coach's training plan.  I was as prepared as I could be.  On race day I was about 95% compliant with his race plan.  There was one stretch where he wanted me to speed up, but, try as I might, I could not.  At the end of the day, I finished 2nd [the position my brother reminded me is the "first loser."].  I controlled everything I could, but I could not control or "manipulate" the effort of the guy who beat me.

The analogy to me as a trial consultant is clear [and I share this with anyone who asks]:

1.  Our clients have only one chance to put on their case in front of a jury.  All the practice arguments, PowerPoint slides, animations, etc., that we test in front of focus groups and mock jurors are performed to hone in on making the telling of our story the best that it can possibly be.  We are sophisticated in our practice and rehearsal techniques and we learn [by trial and error, experience, and feedback from our test audiences] what works and what does not.  The feedback shapes our final effort.

2.  Our clients are allowed to have a fair and impartial jury hear their case.  We cannot advise a judge who to put on the jury, but we can suggest to our trial team who to take off.  Our science makes us very good at finding even the tiniest bit of bias that a prospective juror might hold against our client.  Those data tell us how to advise out attorney:  who that person is and why they might hurt us.  Most of the time we are faced with finding relative levels of bias and challenging the most biased while having to settle for some remaining bias among other jurors.  The point is, our job is to eliminate as much bias as possible.  Just because we are very good at what we do does not mean we have manipulated anything at all. 

3.  . . . then we have to sit back and wait for the outcome.  We have no idea what “place” we are in as the trial progresses.  We have no control over what the other side might do, what the judge might decide on any given motion/objection, what jurors decide is important or not to them, or how the dynamics of the deliberations are going to play out.

We do our pre-trial work to be fully prepared for our one shot at a decision and the rest is out of our control and beyond manipulation. 

Most days we come in first, but some days, try as we might, we are still just the "first loser."

Author Snapshot: Daniel Dugan received his doctoral degree in Developmental Psychology in 1986 from the University of Kansas.  He founded Trial Science, Inc., in 1995 as a way to merge his interests in psychology and the law.  He has given invited addresses and CLE workshops all across the United States for county and state Bar Associations and for the American Bar Association.  He was asked to teach seminars on the work of trial consultants at the National Judicial College for domestic and foreign judges to learn more of what we do.  When not in his office or working in exotic and not-so-exotic locales, Dr. Dugan really is a cyclist who races for the sake of racing and to raise awareness for issues like cancer.

It’s All [Dr.] Bull

I guess CBS ran out of ideas for shows mischaracterizing lawyers. The latest Hollywood creation-- Bull, airing on CBS Tuesday nights at 9PM – is a show inspired by the former career of Dr. Phil, as a trial consultant, and, his former company, Courtroom Science. He is also an executive producer of the show.

Dr. Bull is portrayed as a pontificating, omniscient, charming, cynical puppeteer with magical, mind-reading powers who steals his client’s Rolex and helps police arrest the true murderer in the end. Trial consultants help lawyers put their best case forward in order to obtain a successful outcome for the client -- but not as portrayed by Dr. Bull. Here are just a few mischaracterizations identified by members of the American Society of Trial Consultants:

• Although investigating what is known about potential jurors through public records and social media is one way in which we help lawyers, displaying the photo, background information (beyond what is known publically) and, what seems to be, biofeedback data of each potential juror on individual flat screens at the trial site is far-fetched. I would like to meet the client willing
  to pay for such extravagance!
• Crafting voir dire questions that will uncover potential biases and reveal case-related attitudes is a task litigation attorneys should assign to a consultant because we are good at it. But suggesting an attorney ask each juror, “What do you feel is the cause of a cold?” as a means of determining locus of control would only result in a harsh, rebuking, evil-eye from the judge.
• What judge would allow a consultant at counsel table to openly carry on a conversation through a hidden ear transmitter with his team back at the trial site?
• And a Vogue stylist on staff to help improve the image of the client – really? Suggesting a haircut, the wearing of appropriate clothing, and discouraging the wearing of a Rolex or loud, expensive jewelry is the extent of our remake.
• Being able to read the minds of each juror to the level of hearing their internal dialogues would be a useful talent but one only claimed by diviners or soothsayers.
• The show ends with Dr. Bull getting his client acquitted. Dr. Bull then arrives outside a residence in one of two police cars to arrest the true murderer. Thrilling idea but not in our list of services!

What bothered me most about this show was the image that trial consultants are manipulative, caring little for the legal system. As a board member of the American Society of Trial Consultants, I can assure you that we abide by many of the same ethics and professional guidelines that are established by the ABA. We are not puppeteers. A good consultant is a highly trained and contributing member of the trial team working to obtain a positive and successful outcome for the client, all while making you look good.

So next Tuesday night, be entertained by a handsome, charming actor in a fluffy sensationally-charged Hollywood-style drama. Guaranteed it will be as entertaining as the presidential debate!

Author Snapshot

Sandra Donaldson, Ph.D. is the Director of the Trial Consulting Group at FirmLogic of Womble Carlyle. Dr. Donaldson helps ensure that clients enter the courtroom with the best possible chance for success. She has 28 years of experience counseling clients at all stages of litigation, from pre-discovery to post-trial case assessment -- for Womble Carlyle's clients as well as for other law firms and their clients. Sandy has been a member of the American Society of Trial Consultants for 21 years and is currently serving on the Board of Directors.

The “Why” Matters. Learn from Lochte.

By Patty Kuehn

Much of litigation is designed to identify “the what” or the facts.  For a lawyer to describe “the why” or the explanation, requires intention, dedication and sometimes creativity.  A party’s motivations matter to the fact-finder even though it is not legally required.  The trier of fact is not only an assimilator of facts, but someone who judges the intentions of the parties regardless of whether they are presented. 

As such, it is imperative for a litigator to uncover possible reasoning and motives to explore the most likely and persuasive account.  Facts are important, but “the why” is critical. 

Lesson from Lochte:

Ryan Lochte recently learned this lesson the hard way.  Lochte, a 12-time Olympic medalist and reality TV star, is now a point of controversy.  His actions in Rio were so scandalous, activists stormed the stage on Dancing with the Stars to protest, a first for the show.

Despite winning a gold medal at the Olympic Games in Rio, Lochte’s swimming prowess is not how he will be remembered.  Instead, the ordeal he caused by lying to the public and creating a scenario that quickly spiraled into an international incident will supersede his accomplishments. 

This diplomatic situation could have been avoided if Lochte explained the incident differently.  His rationalization of why it happened dramatically altered the reality of the situation.  Instead of being an embarrassing post-celebratory incident for him, it became a diplomatic debacle disgracing the Olympic committee and America. 

Lochte reported to the media that he and three other swimmers were robbed at gun point by Rio police.  Then and now, Lochte and Rio Police agree on two key facts: a gun was brandished and money exchanged hands.

So why does Lochte’s choice of explanation matter?  Because, many stories are possible from the same facts.  Here are additional facts consistent with both accounts of the event which factored in his explanation. 

Facts:

• Lochte and fellow swimmers Gunnar Bentz, Jack Conger and Jimmy Feigen leave a hospitality house early Sunday in a taxi bound for the Olympic Village.
• The four athletes are ordered out of a cab by an armed man.
• They are instructed to sit on the curb. All but Lochte sit.
• The armed man refuses to let Lochte and the swimmers leave until money is paid.
• The armed man takes money from Lochte, Bentz and Feigen.
• The armed man leaves the athletes’ credentials and cell phones.
• The swimmers walk away unharmed.

How Lochte described the event to NBC mattered: 

"We got pulled over, in the taxi, and these guys came out with a police badge, no lights, no nothing -- just a police badge and they pulled us over.  They pulled out their guns, they told the other swimmers to get down on the ground -- they got down on the ground.  I refused, I was like we didn't do anything wrong, so -- I'm not getting down on the ground.”

"And then the guy pulled out his gun, he cocked it, put it to my forehead and he said, 'Get down,' and I put my hands up, I was like 'whatever.'  He took our money, he took my wallet -- he left my cell phone, he left my credentials."

Contrast between Lochte and Rio Police understanding:

The Rio Police portrayal of what happened differs from Lochte’s version.  The Rio Police denied being involved and accused the athletes of vandalism and fabricating the robbery story. 

After interviewing witnesses and reviewing surveillance tapes, the police concluded the American athletes were drunk and vandalized the gas station before getting in a cab to leave.  A security guard approached them and only used his gun to control them.  The guard told them to get out of the cab and to pay for the vandalism before they could go. 

Why is Lochte’s version so different from the police version?  There are reasons people view experiences in this way.  When something bad happens, people feel the need to come up with a compelling narrative account of what happened to understand why it happened.  Lochte likely felt scared, defensive or angry during the incident.  When he first talked to the media he may have still felt the heat of the moment.  Or he may have tried to reconstruct the story from an intoxicated confusion.  Or he may have intentionally sought to cover up misdeeds.  We will never know his true reasoning. 

Nonetheless, on that Sunday, Lochte had a choice of how to describe both what happened and why.  The story he recounted could have been self-critical acknowledging his vulnerability and foolishness; or it could have positioned the him as an innocent victim (or somewhere in between).  Facing these options, Lochte chose self-protection.

Example self-serving bias:

The motive of self-protection is strong, especially in a negative scenario.  In psychology this motivation is referred to as a defense mechanism, also described as self-serving bias.  It is a cognitive tendency where someone blames failures and shortcomings on outside forces instead of oneself.  Lochte used this defense mechanism to try to protect himself, only it left him more controversial today than he otherwise would have been. 

After a week of strong criticism, Lochte partially apologized.  He apologized for his behavior that weekend, and “for not being more careful and candid in how I described the events of that early morning… I should have been much more responsible in how I handled myself and for that am sorry to (everyone).”  Even though Lochte did not roll back on his allegations that the swimmers had been robbed at gunpoint by men posing as police, the story changed significantly.

Litigation application:

Since a self-serving bias can arise in any situation (and for any party), considering alternative explanations is advantageous for any lawyer.  This applies when investigating a client’s motives and also when examining possible rationale for the opposition. 

Considering various explanations and reasoning can radically alter the view of a situation.   Lochte’s approach resulted in his becoming not only the center of an international incident but also a suspect in a criminal investigation on foreign soil.  He lost endorsements, respect and other privileges.  His subsequent choice to apologize and slightly shift his explanation luckily dissolved the eminent international investigation and allowed him to participate on Dancing with the Stars.  Nonetheless, had Lochte considered other explanations for why it happened (and his part in it) his future would be very different.  Ultimately, facts are important, but “the why” is always critical.

Author Snapshot

Patricia (Patty) Kuehn, J.D., M.A., is a national trial consultant based out of Chicago, IL.  After 20 years of applied litigation consulting Patty has studied and interacted with more than 10,000 eligible finders of fact. She proudly serves as President for this great organization, ASTC.