The longer I practice in the jury research arena, the more I appreciate that psychology and sociology are as much art as science. I have also come to realize how little we really understand about predicting human behavior. Having said that, there are some axioms that are, at least, general guideposts in the practice of understanding jury, and juror, behavior.
"People are sheep." I truly do not say this with any level of condescension. Yes, individuals often follow the crowd. After all, its an easy route. It is also usually viewed as a safe path. But often, this is a formula for disaster for a litigator making his or her case.
Additionally, a common negative takeaway is a condemnation of group behavior as a "herd" mentality. However, I believe an opposite view is much more enlightened when studying jury behavior. And that is, in the absence of knowledge, an individual relies on the information at hand. In fact, any information at hand. In terms of jury behavior, this most often leads to a reliance on "perceived expertise". I have observed an individual evolve into a group leader on a particular subject during deliberations who has an absolute minimal knowledge of the subject being considered. The "knowledge", in fact, usually originated from dubious sources at best.
The lesson learned is to identify and understand as many specifics about this lack of knowledge as possible. For this reason, good jury consultants insist on focusing a significant amount of research efforts on either 1) information mock jurors really didn't understand or 2) information that wasn't presented that mock jurors believe would assist them in making a more informed decision regarding specific trial issues. Armed with a working understanding of this lack of knowledge, the litigator can make every effort to provide appropriate background for an improved case analysis during the deliberation process.
Additionally, it is vitally important to attempt to understand "who" (demographically and psychographically) may be perceived as a subject expert during deliberations in order to apply a demographic and psychographic strategy to the jury selection process. These efforts, however, are fraught with serious challenges.
First, the rudimentary jury panel demographics provided by the court provide precious little insight to useful jury selection criteria. Lifestyle characteristics, opinions, and personal values are the true keys to understanding, and predicting, behavior. Secondly, the opportunity to elicit this information through juror questionnaires and the voir dire process are normally very limited.
Therefore, it becomes increasingly important for the litigation team to develop both "knowledge" and jury selection strategies via trial research. Yes, it is as much art as science. Yes, it requires effort to justify the costs versus benefits. But, the benefits of jury research are a tried and true method of developing a winning trial strategy.
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.