ALL THINGS JURY: The jury selection process: Science on your side

By R. Robert Samples | Dec 19, 2007

Samples There are many lawyers who feel that picking a jury is half the battle in winning a trial. Identifying and selecting jurors who will be sympathetic to your client's case can certainly have a major impact on the outcome.

Samples

There are many lawyers who feel that picking a jury is half the battle in winning a trial. Identifying and selecting jurors who will be sympathetic to your client's case can certainly have a major impact on the outcome.

But most cases do not have issues that are "cut and dried" that provide an easy opportunity to classify "best/worst" case jurors. So, how do you identify the demographics or personality traits that will be more favorable to your client? Some lawyers base their decisions on the mannerisms of potential jurors and/or the way jurors are dressed. Or they rely on past experience and "common sense" convictions to pick jurors. For instance, women are said to be more "soft-hearted", while men are perceived as more analytical.

While past experience, "hunches", and "gut feelings" sometimes have merit, there is a much more reliable way to identify favorable and unfavorable juror profiles. The Jury Selection Survey is a large scale survey that quantifies opinions about the case and cross-tabulates these opinions against the demographics and lifestyle attributes of the respondents.

The survey is typically conducted by telephone in the venue where the trial will be held. As with any quantitative survey, the reliability of the results increases as the number of interviews increases. A minimum of 400 interviews is recommended; a larger sample size would be advisable if the venue is heavily populated with a diverse (socio-economically, religious foundation, racially, etc.) population.

It is important to screen out any respondent who is on the current jury pool (to avoid charges of jury tampering). Relatives or close acquaintances of the principal parties involved in the case should also be screened out.

The questionnaire (approximately ten to fifteen minutes in length) begins by asking general questions about the case, such as awareness/opinions of the principal parties involved. After these general questions, the key "litmus test" question is presented: a brief and balanced description of the case is read, and the respondents are asked which side they favor, why they feel this way, and how strongly they feel about their opinion. Additional information about the case is gathered by asking a series of questions that quantify juror reaction to key arguments on both the defense and plaintiff side. The survey concludes by asking several demographic and lifestyle (sometimes called psychographic) questions about each respondent.

Opinions about the case (utilizing the "litmus test" question as the key variable) are then cross-tabulated against the demographic and lifestyle variables to gain insight into which juror profiles would be more likely to be favorable (or unfavorable) toward your case. This information is then used during the voir dire process to "rank" the potential jurors and prioritize "keepers" and "strikes."

The background of the persons in the actual jury pool can be determined by analyzing the juror questionnaires completed by each juror. These questionnaires collect demographic information, but petitioning the court to include a few lifestyle questions if these questions turned out to be strong predictors in the Jury Selection Survey is highly recommended. However, take care not to "go overboard" as many judges are leery of litigation research and "touchy-feely" questions. Also, great care must be taken in asking the actual jurors any question that could benefit the other side. For instance, finding out that certain jurors are very favorable toward your client helps your selection process, but can also tip off the other side if questions are not chosen and worded wisely.

In key jury trials, consider the use of a Jury Selection Survey to quantify your "hunches" and gain a clearer understanding of the juror profiles that are most attractive, and which ones are less attractive.

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.

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