ALL THINGS JURY: Jury selection insights, Part One

In my previous article for The West Virginia Record, I wrote about determining key questions for the voir dire process. Beneficial voir dire questions originate from well-thought through research efforts. They are typically attitudinal, lifestyle questions and are not demographic based. Effective voir dire questions begin with hypotheses that are first explored during qualitative research such as mock jury focus groups and mock trials. Key questions are identified by examining juror tendencies in their assessment of the case and comparing these tendencies to their answers to attitudinal, lifestyle questions. Once key questions are determined to have potential value as predictive of behavior for the direction jurors may lean regarding specific case issues, they are then tested in a quantitative format ... the jury selection survey. This research tool provides enough data to determine the relative effectiveness of potential voir dire questions. A colleague of mine has suggested many times that I provide "real life" examples of the issues that I write about in this column. I have resisted this advice for three reasons. First, the complexities of jury research are such that they cannot be readily explained in a short column format. I worry that I may mislead readers into jumping to conclusions based on a brief introduction to a profession that is both science and art. Secondly, I have never viewed this column as a vehicle to "teach" jury consulting. Rather, I write it in the hope that litigators and others may be briefly introduced to research methodologies that may be helpful to their efforts to win trials. Examples of actual voir dire questions, for example, may grossly mislead these practitioners. Lastly, and most importantly, the work of jury consultants is confidential and proprietary. Clients make serious monetary investments in trial research. The results are the property of the party that paid for the research. A jury consultant who breaches his, or her, legal and ethical responsibility in this way would not last in the profession. Having said that, I'm going to break my rule and provide an example of a voir dire question that has worked in well known trial situations. I, or my firm, have NOT been involved in this work. In fact, I don't remember where I heard or read this information. However, it is a common example that has been much discussed in litigation circles. This example may seem to be obvious to you now, but it was arrived at through major research efforts. I'll introduce the example with a question. Which of the following groups do you believe would be most favorable to a tobacco company's position for product liability trials ... current smokers, former smokers or those who were never smokers. I will answer this question and provide an understanding of the underlying psychology for this behavior in my next column. Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He 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.

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