Deliberations

What Great Basketball Coaches Can Teach Us About Trial Prep

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents.  I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court.  Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots.  If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents.

Like many of the best coaches, Dean Smith knew that effective preparation often meant stacking the deck against oneself in practice.  This mantra also holds true for trial preparation.  It is easy to assume that a motion will be won to exclude damaging testimony or evidence, but what if the judge decides in favor of your opponent?  What if opposing counsel is more capable than first anticipated or an expert witness handles his or her deposition swimmingly?  

Don’t Call Me Fluffy: One Perspective on Mock Trials

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community.  At times, trial attorneys question the necessity and even the validity of some trial consulting techniques.  Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.

In my opinion, this is not an accurate description.  While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.

The World's Most Expensive Real Mock Trial Points to Simplicity

“The problem was with some of his explanations. It reminded me of a little kid who gets his hand caught in a cookie jar. He says, ‘Mommy I wasn’t taking the cookies. I was just trying to protect them and to count them.’”

— Richard Kling, professor at Chicago-Kent College of Law who watched much of the trial, on Blagojevich’s testimony.

The jury is back and Blago is guilty on 17 counts.  The great State of Illinois can now proudly list four of its governors as convicts.  This begs the question: What changed the second time around?

I would argue that the first major factor was the apparent lack of a holdout juror.  The individual who held up the panel at the first trial was lauded by some and called a kook by others.  It takes a particular personality to stand up to a group and hold one’s ground, however, there is also a fine line between impassioned defender and obstinate fruitloop.

In prior posts, I have made the case that holdouts are most often created by confused and overly detailed case presentations.  It is much more difficult to stand against the group when the majority is well-armed with a solid understanding of the facts, the story and the law.

So, I believe Blago (part one) was the world’s most expensive mock trial.  In Blago (part two), the prosecution presented a far more “streamlined” case that did not get hung up on the tiny details.  As this article outlines, the prosecutors seemed to have learned from their mistakes and took a “less is more” approach.  This was a smart move and resulted in a storyline that kept focused on Blago’s actions. 

"It's all part of the streamlining decision. We're gonna keep it straight forward. We're going to keep it simple, we're going to go to the heart of the matter. Let's talk about selling the Senate seat, the sexiest stuff right up front so the jury makes up its mind early on that this guy is a crook, and the rest of the stuff will sort of fall into place behind that," said Prof. Leonard Cavise, DePaul college of Law.

Having facilitated many mock trials and focus groups, I can attest that this is the most common lesson learned from trying a case in front of mock jurors.  Attorneys often find that “if everything is important, then nothing is important.”  Unfortunately for Blago, the same was not true for his defense storyline. 

Blogger: Matt McCusker

 

WHAT AN UMPIRE CAN TEACH BP AND TOYOTA: How Truly Being Sorry Can Change the Legal Game

 It was a deeply sympathetic moment that we will all remember; Toyota’s CEO (Akio Toyoda) immediately delivered a heartfelt apology to his company’s consumers as soon as it became evident that there was a safety problem with some Toyota gas pedals.  What?  You don’t remember that?  Well, maybe it was more of a very belated, quasi-apology in front of the U.S. congress teamed with a commercial contrition that was more of a salute to prior Toyota glory and their “commitment” to be a top auto manufacturer again.

However, BP’s Tony Hayward wasn’t going to make the same mistake.  He released an ad that actually said “I’m deeply sorry” only 6 weeks after the disaster (a.k.a. 20 million gallons of oil later).  While this was slightly quicker, it also mixed the “deeply” remorseful message with touts of all the great things BP was doing to fix the problem.  By the way, congratulations to BP on the largest cleanup effort in U.S. history,  the polls are showing that bragging about this is really helping their image (or not, as this Ace Metrix data shows.)

Then there is Jim Joyce, the umpire who mistakenly blew a call that would have given Detroit Tigers’ pitcher Armando Galarraga a perfect game (which is amazingly rare in major league baseball).  Sadly, instant replay undeniably confirmed that that call was wrong.  So, upon seeing the evidence, Mr. Joyce immediately asked to personally see Mr. Galarraga to apologize profusely and tell him how terrible he felt (face to face).  The meeting ended with a hug and Armando said “I understand.”

Jim Joyce did not try to make excuses or point out all of the great calls he had made in the past.  He quickly owned up to his mistake and gave a heartfelt mea culpa that showed his distress about the situation.  He did not wait for a chorus of negative press.  He did not need to see if thing blew over.  He acted like a man who truly felt sorry.

Studies out of the University of Illinois have shown that apologies can “resolve legal disputes ranging from injury cases to wrongful firings, giving wounded parties a sense of justice and satisfaction that promotes settlements and trims demands for damages.”  This includes significant reductions in financial demands.

In an article published in Contemporary Accounting Research, a collaborative study between George Mason University and Oklahoma State University found that jurors reduced the frequency of negligence verdicts when auditors expressed regret for mistakes that resulted in damage. “We found that apologies reduce the jurors’ need to assign blame to the auditor for any negative outcomes to the client,” said one of the authors.  The same has been shown at Johns Hopkins for patients who feel that their doctor was legitimately sorry about malpractice and did not try to make excuses.

In fact, an investigation out of the Nottingham School of Economics found that if a company says “I’m sorry” to wronged customers, it can be more effective than sending a check.  This research asked consumers to withdraw a negative evaluation of a company for a delay in the shipping of a product to them.  Some consumers were offered money (“As a goodwill gesture, we can offer you €5 if you would consider withdrawing your evaluation.”) while others were told “We are very sorry and want to apologize for this.”  Twice as many respondents withdrew their complaint after the apology than when offered compensation.

While BP and Toyota said they were sorry (sort of), the public has not felt that it rang true.  Their messages were mixed with self-serving statements and attempts to spin the message.   Umpire Jim Joyce (and the research on apologies) has demonstrated that when a mistake is made with dire consequences, sometimes the most beneficial path is just admitting fault and asking forgiveness.  The court of public opinion (and juries) are sometimes not as blood-thirsty as some might imagine.

Blogger: Matt McCusker

THE ART OF PSYCHIC MIND CONTROL (In Three Easy Steps)

 Let’s face it, we have all been in the position where we wanted to use psychic mind control to influence the actions of someone around us (spouse, child, neighbor, juror, etc.).  Unfortunately, no matter how well we explain our position, sometimes the other person just doesn’t “get it.” Well, argue no more.  Now, for the price of a free cup of coffee, you too can utilize your brain to its maximum potential and psychically control your family, friends, and even perfect strangers! 

(DISCLAIMER: Brain maximum potentials may vary.  Consult your doctor before participating in any brain maximization exercises. Deliberations is not responsible for any injuries resulting from brain overuse or unfortunate consequences associated with psychic mind control.)

How is this possible?  It’s easy! Just follow these three basic steps and watch everyone do whatever you say:

1)     Assess the Subject

2)    Identify the Narrative Goal

3)    Manipulate Your Presentation

Or, as I like to say: “Tune up your brain and A.I.M.”

Step One: Assess the Subject

Research has shown that we all have the ability to read minds.  At last year’s American Society of Trial Consultants Conference in Atlanta, Dr. David Matsumoto of Humintell taught us how microexpressions are universal indicators that humans from Fiji to Finland display regularly.  Amazingly, I found that after two hours of video training, I increased my accuracy at correctly identifying these brief emotional indicators from around 40% of the time to over 80%. 

We can even read minds “remotely” through photos.  A blog by Katie Moisse at the Scientific American outlines research that suggests people can predict a person’s political party affiliation (Republican or Democrat) based on facial photos.  This study utilized black and white pictures of U.S. Senate candidates and college year book photos of voters to test whether people could accurately predict which party they aligned with. The results showed significant success (although generalized and imperfect) based on stereotypes about Republicans and Democrats. (Which begs the question: Should covers actually be used to judge books?)

For attorneys, step one would entail making an honest assessment of the community and jurors involved in their case.  This could include: Thinking about the attitudes of the area, doing pre-trial research, designing strong voir dire or juror questionnaires, and most importantly, paying close attention to the responses. 

Step Two: Identify the Narrative Goal

While it would seem easiest to simply tell someone what you want them to do, psychic mind control requires more finesse.  Rather than dragging them along, it’s better to decide on a finish line and offer signposts to help your audience arrive where you want them to.  The most basic method of accomplishing this is by engaging in the art of storytelling.

Whether it be through religion or culture, the most lasting stories of human history are those that impart some sense of morality or learning experience.  The Bible; The Koran; The Torah; Buddhist Sutras; all of these impart morals that highlight the benefits of being a good member of society (and the potential downfalls of not).  Theories of sociocultural evolution suggest that we have a predisposition to attach to these stories of morality because, as humans, we need the group to survive.  Ted Kaczynski types aside, we are a very social species and naturally attach to themes that engage this premise.

Some of the best examples of lasting stories come from a Greek slave named Aesop.  His fables became so imprinted in the cultural lexicon that we now only need to speak a few words to impart the entire story: “Sour grapes”, “cried wolf”, “the Tortoise and the Hare.”  One of the best methods of accomplishing psychic mind control is to create a story that taps into this internal need for social justice (honesty, hard work, selflessness, etc.).

Step Three: Manipulate Your Presentation

You have measured your listener(s) and catered your goals, the final step of psychic mind control is to change your message transmission; this means altering your language.

Research has suggested that something as simple as word choice can have dramatic surprising psychological and physical effects to the state of the listener.  One method of utilizing this phenomenon is to build themes on common turns of phrase and imagery (“taking a step back”, “unclean thoughts”, “that’s heavy”, etc.).

The Association for Psychological Sciences published an article (The Body of Knowledge) which outlines a variety of studies exploring the field of embodied cognition.  This area is based on the premise that many common sayings actually provide cognitive/neurological reactions from the recipient.  For example, one study found that subjects who were asked to think about a time they were rejected by someone, assessed the temperature of the experiment room as significantly colder than those who were asked to think about a time they were accepted by someone (“out in the cold” versus “warmly received”.)

By choosing your words carefully, your listeners will both hear and feel the power of your story. Thus, rendering them helpless to your metaphysical manipulations. It’s as easy as 1, 2, 3.  Just (1) know your audience; (2) craft a good story; and (3) use powerful imagery through language; then you too can be an expert in the Art of Psychic Mind Control.

Blogger: Matt McCusker

They're Out There

The New York Times had a nice article yesterday on conspiracy theorists, especially those who believe the Apollo moon landings were a government hoax.  It's a good reminder that -- unlike all the things they believe are out there -- conspiracy theorists really are out there, and on juries.

You know about the most widely held conspiracy theories:  moon landings a fraud, 9/11 attacks and the Holocaust hoaxes too, Elvis isn't dead, the CIA killed John F. Kennedy, and so on.  What you might not realize is how common it is to find a broader sort of "conspiracy mindset," an approach to the world, in jurors.

The lawyers did it

You'll see it, though, if you do a few mock trials.  Almost every mock trial I've worked on has had at least one person who could fairly be called a conspiracy theorist.  They're the folks who find gaps you never dreamed you'd left in the evidence (sometimes gaps that aren't there at all) and fill them by imagining dark secret dealings behind the scenes.  I'm not talking about legitimate inferences from suggestive evidence; I mean wacky conspiracies.  In one mock trial about contract negotiations that began, fell silent, and then recommenced after several months, a mock juror suggested to her group that the transaction lawyers on both sides of the deal must have had a secret agreement going.  In the observation room, eyebrows rose as the lawyers and clients realized that no one on the panel was going to contradict her.

Conspiracy theorists aren't simply common; they also have a lot in common, and that is separately important to trial lawyers.  Here's a character sketch from the New York Times article.  As you read it, think about which side wants this juror:

Ted Goertzel, a professor of sociology at Rutgers University who has studied conspiracy theorists, said “there’s a similar kind of logic behind all of these groups, I think.” For the most part, he explained, “They don’t undertake to prove that their view is true” so much as to “find flaws in what the other side is saying.” And so, he said, argument is a matter of accumulation instead of persuasion. “They feel if they’ve got more facts than the other side, that proves they’re right.”

Mark Fenster, a professor at the University of Florida Levin College of Law who has written extensively on conspiracy theories, said . . . at the core . . . is a polarization so profound that people end up with an unshakable belief that those in power “simply can’t be trusted.”

* * * *

Adam Savage, the co-star of the television show “MythBusters,” [said that the theorists] never give up. “They’ll say you have to keep an open mind,” he said, “but they reject every single piece of evidence that doesn’t adhere to their thesis.”

Got the picture?  Focused entirely on what the other side failed to prove, convinced that those in power are corrupt liars, and willing to argue longer than anyone else.  A prosecutor's nightmare, most of the time.  Definitely not the profile many business defendants are looking for.  But hardly a clear call for any party, even if you're accusing the other side of corruption.  These are forceful, voluble, unpredictable jurors who won't compromise.  Learn to recognize them where you can; and if you leave one on the jury, pack extra antacid in your briefcase. 

(Photo by xamad at http://www.flickr.com/photos/xamad/518876976/; license details there.)

A Jury Consultant For $5,000?

I started on Twitter because I wanted to share thoughts that weren't long enough for a blog post.  Now that I'm there, I find myself wanting to "tweet" thoughts that are too long for Twitter.  Here's one.  New York lawyer Tony Colleluori, whose blog is that lawyer dude (he's @thatlawyerdude on Twitter), is planning for two upcoming criminal trials.  He is appointed counsel, so his budget for jury consulting, if he gets one at all, will be limited.  "Any ideas how I can get best bang for little bucks," he asks, probably less than $5,000?

The phrase "jury consultant" can be correctly used in a sentence without the word "pricy," although no one ever seems to.  If you have less than $5,000 to spend on a jury consultant, think about one of these ideas.  Which one you choose depends on you and your case.

1.  Just talk.  Block off a day or two, get a good consultant and a lot of coffee, and talk the whole case through.  Talk about witnesses and their weaknesses, themes and their strengths, inscrutable evidence and how to make it clearer, stereotypes you'll trigger in jurors' minds, jurors' attitudes and past experiences you'll invoke and ways to find out about them.  It's not just that the consultant will think of things you've missed; you will think of things you've missed.

2.  Ask a consultant to help prepare your key witness.  Of all the difficult conversations a lawyer can have, one of the hardest is telling a client what she needs to change to make her testimony clear and let her sincerity show.  A consultant can see things you won't, and say things you can't.

3.  Have the consultant help you gather data and social science research for a motion to change venue.  A $5,000 budget may be tight for this, but if you really need the motion, you need all the help you can afford.

4.  Invite the consultant to voir dire, especially if (and I doubt this is Tony's situation) you haven't selected many juries or if (this may be closer) the voir dire will be particularly challenging.  Pretrial publicity, sensitive questions, a cumbersome boxful of jury questionnaires, a very large venire, or the need to lay a record for Batson challenges can each -- let alone all -- turn a familiar task into something you could use help with. 

5.  Skip the consultant and do your own mock trial.  If you've never watched a jury deliberate, this may be the most powerful way you can spend your jury research money.  Ask a good recruiter to find you 18 or so jurors that roughly match your jurisdiction's demographics.  (Paying the jurors plus the recruiter will use up the $5,000 in most major cities.  You could recruit jurors yourself, but it's tougher than it sounds.) 

After the jurors sign confidentiality agreements, present both sides of the case to them, making sure you don't underplay your opponent's case.  Don't tell them which side you're on.  Divide them into two or ideally three groups, give each one a set of very simple legal instructions and simple questions to answer, turn on a borrowed video camera, and leave the room.  (If taping multiple deliberations at once is impossible, tape your presentations and present them to different groups on different days.)  For detailed instructions on how to do this, a little book called How To Do Your Own Focus Groups:  A Guide For Trial Attorneys by the respected consultant David Ball is invaluable.  My article "What A Mock Trial Can Tell You" may be helpful as well.  Pay no attention to who "wins" this mock trial; instead, listen closely to the tapes.

The deliberations will surprise you, which is the point.  First there's the pattern of jury conversation in general -- the prominence of juror's own experiences, the way they rely on each other's life knowledge, how often they talk about things they're not "supposed" to, the gaps in logic, facts, and math they often don't notice -- and yet how seriously and sincerely they work for a result they can all support.  If you haven't seen this before, it will change the way you think about juries.  Then there are the specifics of your case.  Your jurors will miss things you thought were obvious, and catch things you missed entirely.  You'll want to fix both for the real trial. 

If you could pay a consultant to plan and report on this project, it would save you some work, and you'd probably learn more.  Don't worry about that.  You can learn a lot for $5,000.

___________________

Jury consultants and those who've used them, weigh in; how can a consultant provide the most value when budget is small?

Related posts here:  Expect Less From Your Jury Consultant

(Photo by Stuart Pilbrow at http://www.flickr.com/photos/stuartpilbrow/2942333106/; license details there.)

What Can A Mock Trial Tell You?

That's the title TRIAL Magazine gave to my article in their July 2008 issue.  That link is to a .pdf copy uploaded here, so you don't need to be an AAJ member to read it.  (In fact that's the only way I can read it myself; I do too much defense work to be allowed in AAJ.  TRIAL's generosity in letting me post it is just one reason why it's a terrific magazine to write for, and to read if you can get a copy.)

The article actually begins with what a mock trial can't tell you, before turning to why they're invaluable anyway, and a few tips on how to plan a simple, useful mock trial.  I'm a believer, and in the article I try to explain why. 

Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

Expect Less From Your Jury Consultant

Every once in awhile you see a "distrust" poll, ranking professions according to how much or how little people trust them.  In the most recent Gallup Honesty/Ethics in Professions poll in December 2006, nurses ranked highest with 84% of respondents saying nurses' honesty and ethical standards were high or very high; car salesmen were lowest with 7%; and lawyers were down near the bottom at 18%.

It's a good thing jury consultants weren't on the list.  We might not have registered on the scale at all.  My news feeds are always bringing fresh evidence that jury consulting is mistrusted and misunderstood.

"Wackier than anyone else in the room"

It's bad enough that much of the public thinks we're (to pick some adjectives from a 2006 "That's Outrageous" column in Reader's Digest) "cynical," "pricey," "super slick," "canny," "manipulative" people for whom "no tactic is off limits."  A lot of lawyers don't think much of us either.  Take Scott Greenfield at Simple Justice a few weeks ago:

I've used a jury consultant, which was one of the most expensive mistakes I've ever made.  . . . They can be wackier than anyone else in the room, and bizarrely secure in their belief that they understand other people based on a few words and a couple of "deep" questions.  It seems closer to voodoo than science, and it disturbs me that they suggest that they have an ability that belongs only Madame Zuwonga, the Mind Reader.

Where do people get the idea that jury consultants are pushy clairvoyants?  From jury consultants themselves, it seems, or at least a few of them.  The "Madame Zuwonga" rap makes more sense if "[l]eading practitioners of jury science 'boast that they can predict with greater than ninety percent certitude the outcomes of trials before the evidence has been heard,'" as the authors claim in "Ethical Issues In The Use Of Trial Consultants," in the winter 2006 issue of FDCC Quarterly.  (The link is to the entire issue of the journal, and the quote is on p. 151 of the .pdf file.  They cite a 1994 article I don't have access to.)

My consultant made me do it

As for pushiness, trial lawyers love to tell me stories of jury consultants who insisted on keeping the juror who turned out to be foreman in the worst verdict ever.  Jenner & Block litigator John Mathias, in an excellent piece called "Eight Tips for Better Voir Dire" in the ABA Litigation Section's "Tips from the Trenches" and on Jenner's web site, feels the need to warn lawyers:

8. Don’t ask silly questions just to please a jury consultant.

Some jury consultants want to obtain data for quantification purposes even though questions designed to get this data during voir dire can cause unhappy side effects. For example, a trial lawyer defending an insurance company might ask prospective jurors to rank on a scale of 1 to 10 how much they trust their own insurance company, 10 being completely and 1 being not at all. Data from their answers can really help a jury consultant with mathematical rating computations, but it can also activate the fuse on a time bomb.

(They want you to ask risky voir dire questions so they have data for their database?  I beg your pardon?)

A Pocket-Sized Guide To Working With Jury Consultants

I want to type it in all caps and bold type:  these scary tales are not typical.  The jury consultants I know -- the ones I've met in practice and through the American Society of Trial Consultants' terrific organization -- are responsible, thoughtful people who are trying to provide assistance, not magic tricks.  How can you tell whether you've got a good one?  Let me offer this short, incomplete but I think still helpful, checklist.

What to expect from your jury consultant:

1. Insight.  (In the best relationships, the consultant's advice will surprise you a little at the same time that it rings fully true.)
2. Constructive candor.
3. Respect for you, your client, and your team.

What not to expect from your jury consultant:

1. Magical powers of any kind.

What to run from as fast as you can:

1. Anyone who insists you do something your own intuition tells you is mistaken.
2. Anyone motivated by his or her own interests instead of your client's.
3. Anyone who claims he or she can guarantee any outcome.

Your way

Mark Bennett at Defending People said it perfectly in one of his recent "Tao" posts:

Your way to try cases is always with you. You don't need anyone else to tell you how you should do things, but only to help you discover it. Some people might lay claim to "ways" of trying cases or "systems" or "methods". You can, they say, learn to win "their" way. While you can undoubtedly learn something from them (you can discover better ways to try cases from anyone and anything), it's not really their way they're teaching you; it existed before they did.

The best jury consultants help you discover your way.

_____________

Notes: 

1. Thanks to Illinois Trial Practice Weblog  for the link to John Mathias's "Eight Tips" piece.
2. Posts on similar topics here include "Great Expectations, Great Limitations" and "Mock Trials For The Wrong Reasons."

(Image by Kyle Floor at http://www.flickr.com/photos/yogi/163795378/; license details there.)

Dear Deliberations

It's fun to watch the searches that find this blog.  People are usually looking for a phrase; yesterday brought visitors looking for  "sample voir dire questions criminal," "juror profile false advertising," and "Curious George stickers."  The best ones, though, ask whole questions, and I get to feel like an advice columnist.  Dear Deliberations, they write,

Q.  How do they pick jurors?

A.  Very carefully, my mom would say.  (She loved jokes like that.) 

Okay, really.  If you're asking what lawyers think about when they're choosing jurors, it's a complicated question, and most of what I write here is part of a search for the answer.  I suspect, though, that you're asking about logistics, what jury selection looks like to an observer.  For this, as for dozens of other jury questions, the National Center for State Courts has compiled a great set of answers.  On its State Links page for "Jury Selection," the NCSC has links to state courts' jury handbooks, for most of the fifty states and and a whole bunch of individual counties.  Most of the handbooks explain what voir dire is, the kinds of questions jurors can expect, and how the process of jury challenges works.

Q.  What are the questions asked for voir dire in a mock jury?

A.  Actually we hardly ask any true "voir dire" questions in a mock trial, in the sense that a juror might be removed from the panel based on the answers.  It's important that mock jurors be completely unconnected with the parties, the witnesses, the lawyers, and the case, so we ask thoroughly about those possible ties.  Depending on who is conducting the mock trial and what its goal is, the mock panel might exclude particular groups -- newspaper reporters come to mind -- and of course we try to get a demographic balance.  Other than that, if a mock juror is able to serve and qualified to be an actual juror,  we usually take the group we get, and always learn from it.

Q.  Six or twelve jurors better for wrongful death cases?

A.  You're not the only one to ask.  This question has been researched extensively.  Much of the work is collected in Prof. Neil Vidmar's article, "The Performance Of The American Civil Jury:  An Empirical Perspective," published in 1998 in the Arizona Law Review and on line at Duke's web site.  Some of the findings:

• "[R]esults suggest that smaller juries will, on average, produce larger awards."
• Small juries' verdicts are more "variable or dispersed."
• Large juries "will contain more members of minority groups, deliberate longer, and possibly recall trial testimony more accurately."
• "[L]arge juries are somewhat less likely to reach unanimous agreement on the verdict."
• "Social scientists, who have commented on the issue, appear unanimous in their opinions that larger juries are superior to smaller juries with respect to determinations of liability, guilt, and damages."

Q.  Do all state verdicts have to be unanimous?

A.  No.  It depends on the state, and on whether the trial is for a civil lawsuit, a felony, or a misdemeanor.  If you know those things, you can find the answer in the U.S. Department of Justice's massive State Court Organization report, a 7 MB monster that takes forever to download.  Once you get it, you'll have 47 charts covering everything from how much continuing education your state's judges need to what rights you lose when you're convicted of a felony in your state -- and, in Table 41, what verdicts need to be unanimous where.

Q.  Disqualification for jury duty in Texas?

A:  Hoping to get out of it, are you?  Back we go to the DOJ's State Court Organization report, this time to Tables 39 and 40.  In Texas, the chart says you're off the hook if you're an officer or an employee of the Senate, house of representatives, or any department commission, board, office, or other agency in the legislative branch of state government; if you're on active duty in the military; or if you're a student, a parent needing to care for children younger than 10, or a primary caretaker of an invalid person. 

Note:  I'm just reading the chart.  Get court permission before you decide not to show up.

Q.  How long jury deliberation process?

A.  Ah, the how-much-longer question.  Search no more; I got a wonderful note not long ago from Wisconsin Court of Appeals Judge Daniel Anderson, who shared with me the definitive answer.  He's an appellate judge now, he says, but back in the day,

I did enough jury trials to develop a guiding principle.  If a jury is out for more than 12 hours it will vote for the plaintiff, except in those cases where it votes for the defendant.

Q.  Do you believe that the jurors sometimes discuss impermissible issues in deliberations?

A.  No.  I believe that they almost always do. 

Mock jurors talk about things they're not supposed to all the time, and the Arizona Jury Project revealed that real jurors do too.  Profs. Neil Vidmar and Shari Diamond collected the evidence in their article "Jury Room Ruminations on Forbidden Topics," at 87 Va. L. Rev. 1857 (2001) and at Duke's web site.  Of the 40 civil juries whose deliberations were taped for the project, 34 talked about insurance and 33 talked about attorney fees, two classic off-limits topics.  Vidmar and Diamond caution that the juries were still highly functional:

[F]orbidden considerations were but a small part of the juries' focus of attention.  Even in cases in which juries discussed forbidden topics, they spent only a small portion of their time on these topics.  . .. [T]he juries invested most of their time and effort in actively sorting out competing claims and arriving at a plausible interpretation of the evidence presented at trial and in struggling to understand and apply the court's instructions on the law.

But do they talk about off-limits issues?  Almost without fail.

Sincerely,

Deliberations

(Photo by zoghal at http://www.flickr.com/photos/zoghal/350801206/; license details there.)

Mock Trials For The Wrong Reasons

Most people who sell a product spend their time talking about what it will do.  If you sell cars, you get to tell customers which car fits their family's needs.  If you sell computers, you get to explain which one is best for a gamer, or a photographer. 

Mock trials are different.  When your "product" is an appropriately designed mock trial, conducted with insight and (with luck) no glitches, you spend a surprising amount of time explaining what mock trials don't do. 

Over and over, lawyers and their clients tell me they want a mock trial for one or both of two reasons.  They want to predict how the real jury will decide their case, or they want a demographic profile of the perfect juror.  Over and over, I explain that a mock trial won't do either of those things.

Mock trials don't predict the real outcome

It's obvious that mock trials aren't predictive, if you think about it even briefly.  The list of variables you can't control in a mock trial includes practically every aspect of the exercise:

• The judge, who often will have a huge influence on the real trial, won't be there.
• One legal team will be entirely different and the other probably won't exactly match the real trial.
• While lawyers are typically so competitive that both sides try hard in a mock trial, the incentive for the "opponent" to win is different from the real thing.
• The mock jury usually won't hear (and thus won't like, dislike, or be confused by) live witnesses in the presentation phase of the mock trial. 
• The lawyers will condense their presentation of evidence and documents -- which will almost certainly improve the presentation, but also make it different from a "real" trial.
• The jurors' relationships with each other and group dynamic will be different after a shorter trial.
• The lawyers will learn from the mock trial and alter their "real trial" arguments, and voir dire, accordingly.

Most important, even if you could control for everything else, the real trial will have different jurors.  The groups are too small to ever be statistically predictable.  In our mock trials we usually have three juries, who by definition have all heard exactly the same presentation.  Almost never do all three juries rule for the same party.

Mock trials don't generate demographic profiles

You can certainly gain insight from a mock trial about what aspects of jurors' background might make them react favorably, or unfavorably, to your case.  But pure demographics aren't the magic key people think they are, and even to the extent they're helpful, if anybody tells you that a mock trial will reveal your perfect demographic, I submit that person is mistaken.  Again, you can judge for yourself, even if you never took statistics:

• The mock trial sample is usually too small.  In a Milwaukee mock trial group of 18 or 24 jurors, we'll have only a handful of African-Americans.  Even if they all vote the same way, the group isn't large enough for us to sensibly interpret their vote as representative of African-Americans in the city.  You need many, many more mock jurors before you can begin to draw demographic conclusions.
• More important, the real jury is always too small.  Say you somehow had the budget to hold mock trials including hundreds of jurors, and you decided that 90% of Asian-American women were going to vote your way.  Now you're doing the real voir dire, and sure enough there's an Asian-American woman.  Is she in the 90%, or the 10%?  There's no way a mock trial can tell you.

So why do them? 

If it doesn't predict the outcome and it doesn't automate voir dire, why do I believe that a mock trial is one of the most powerful tools a trial lawyer can use?  Here are some of the reasons:

• Mock trials bring insight, important insight, every time without fail.  You do a mock trial not to see what will happen, but to see what could happen.  Lawyers and especially clients are always shocked to watch juries discuss their case -- mispronouncing names, screwing up the math, reacting with deep emotion, and identifying counterarguments, both sensible and wacky, that the legal team never thought of. 
• Mock trials fill the gaps.  By definition, you don't know what's missing from your case.  If you did, it wouldn't be missing.  Mock jurors will tell you, very clearly and often with great impatience, what you should have included.
• Nothing else intensifies preparation in the same way a mock trial does.  Even before the mock gavel falls, lawyers and clients have to come to grips with their case to present a mock trial in ways they usually haven't before, even if they're really good.  More than once I've seen a lawyer understand (or have myself understood) the real impact of a document or a piece of testimony for the first time in the middle of the night before a mock trial. 
• Mock trials powerfully sift the evidence.  In the months, weeks, and even days before a mock trial, I often see lawyers mired in their exhibit lists, unable to see which of the scores of documents they've listed might perhaps be left out.  When you need to give a short presentation to a roomful of strangers in a couple of days, the ten best documents and four best deposition quotes have a way of standing out from the rest.

I believe in mock trials.  That's why I keep explaining that mock trials don't do what everybody thinks they're supposed to.

(Photo by Amanda Wray at http://www.flickr.com/photos/livinginmonrovia/92991157/; license details there.)