CHARLESTON -- You've done the research and you know how to communicate your message. You've practiced and planned for every type of juror. The surveys have been completed, and you know exactly what type of juror you want on your panel. You have told your story in focus groups and mock trials.
After months of preparation, the trial begins. You look at your jurors as opening statements are presented. The man on the left looks a little dazed and confused. The woman in the second row is paying very close attention and nodding. Several jurors are taking notes. One is staring at her watch. You cannot look at these jurors and know what they are thinking. Or can you?
In many cases, an attorney would find it helpful to get a play-by-play as to how a jury panel perceives different themes, messages, and points of a trial. One method of getting a juror's perspective is to have a "shadow" jury in the courtroom during the trial to listen to every argument and witness. The shadow jury hears and sees what the real jury hears and sees. After each session, shadow jury members are interviewed and debriefed, giving feedback to the research team. An attorney can adjust his or her case "on the fly," as it were.
A shadow jury can consist of any number of people. To protect the shadow jury from bias, the members of the shadow jury cannot be allowed to know which side brought them in to give their opinions and feedback. Therefore, the research team conducts daily interviews and compiles the information for the attorneys handling the case.
Another way to find out exactly what a jury thought during a trial is to ask them. Of course, this will have to wait until the trial is complete and permission is granted by the court to interview jurors who have completed their jury service. After that, exit interviews with jurors will give an attorney real insight on how case facts were received, how jurors processed themes and messages, and what made an impact on how the jury reached a verdict.
It may seem a little too "hindsight is 20-20" to conduct exit interviews with the jury panel -– what's done is done. However, attorneys often work with the same client again. Attorneys often have cases that are very similar: vehicle accidents, workplace injuries, sexual harassment, fraud, etc. Mass tort cases are certainly ripe ground for exit interviews. Exit interviews give attorneys awareness of how preconceived ideas can influence any case. Jurors can be swayed by others in the group, especially during deliberation. Even case elements can be scrutinized to determine strong and weak aspects of your case. An attorney may find that a star witness was not as credible as originally believed.
Another way to have an idea of how your jury might be thinking is to analyze trends in a venue. Venue analysis and verdict analysis for similar cases can give an attorney a clue as to how friendly or unfriendly a community might be toward his or her case. Through thorough analysis of past jury panels, verdicts, and bench rulings, an attorney can begin to form a picture of some of the challenges he or she may be facing.
All of these methods of litigation research work together with other pre-trial preparation -- from Community Attitude Surveys to Focus Groups to Mock Trials –- to give an attorney every edge in fighting for his or her clients.
As the world becomes more competitive, attorneys need to be at the top of their game and have the best team on their side. Being forearmed with information that allows an attorney to present the best case he or she can is the best way to serve clients.
Blankenship is a senior vice president with RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has executed extensive public relations plans and litigation research projects for clients throughout the nation during the last 20 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.