ALL THINGS JURY: There's no substitute for research-based jury selection
R. Robert Samples Jul. 31, 2008, 6:45am
Yes, you are a skilled litigator. Yes, you are an experienced communicator. Yes, you can gain the trust and confidence of jurors.
However, you may still be at a severe disadvantage with a jury panel when presenting your case. Additionally, any disadvantage probably has nothing to do with any fault of yours.
"Jury think" is deep-rooted. People make judgments and decisions utilizing long-held beliefs and attitudes. Individuals are full of biases, both positive and negative. So, when you present your case, many times your words fall on deaf ears or, worse, jurors who are predisposed against your client and the actions which resulted in a lawsuit.
Therefore, no amount of persuasive argument, or even logic, can help you win the day. But, there is help. Identifying the biases and opinions that are favorable to your client's position can provide valuable assistance for the jury selection process.
How is this accomplished? Utilizing qualitative and quantitative jury selection research, trial consultants can identify best/worst case jurors and those in-between. Telephone surveys, mock jury focus groups, mock trials, and pre-trial juror questionnaires (when allowed by the judge) are the preferred researcher tools for scientific jury selection.
Attitudinal and lifestyle questions are the principal method used by researchers to profile potential jurors. These lifestyle questions are then correlated with case-specific questions to complete the profile.
Once the data is finalized, the litigator is provided with key voir dire and pre-trial questionnaire input that will identify best/worst jurors WITHOUT giving anything away to opposing counsel.
This is a key issue. Direct questions that reveal biases expose the potential juror not only to your legal team, but also to opposing counsel and the bench. The "secret" is to utilize surrogate questions from the research effort that serve the same purpose without exposing information to other parties to the case.
Of course, in jury trials there are no sure things. But, scientific jury selection can certainly provide assistance for your client's position. And, if you believe jurors in a specific venue are predisposed against your client, jury selection research may make a tremendous difference to a trial outcome. As a client once told me, "Give me ONE more juror that can be fair and impartial and it may mean the difference in this case." After all, you never know when that juror may be the formal, or informal, leader of the jury panel.
Samples is president of RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.