West Virginia Record

Monday, December 9, 2019

ALL THINGS JURY: Beware the jury foreperson

By R. Robert Samples | Oct 15, 2008

CHARLESTON -- I have often written about the danger of using jury research as a means to assess financial risk for jury trials.

I must continue to remind litigators and their clients that the best use of jury research is for testing themes and messages and refining case strategy.

However, clients push very hard to utilize jury research to test their potential liability and resulting financial exposure.

While this is a secondary benefit of mock jury research, it is NOT the best use of these qualitative methodologies. In fact, it can be wrought with problems.

The caveats for this rationale are many. Truncated presentations, lack of exposure to key witnesses, limited jury instructions and anomalies with mock jury panels are just the beginning of the limitations for utilizing mock jury research as a predictive trial research technique.

I've also written a lot about the "perceived expert" mock juror that becomes the functional small group leader during deliberations, and therefore, introduces significant bias to deliberations and the resulting verdict. Many times, the functional small group leader is also appointed as the mock jury's foreperson. Ouch! This is double indemnity.

The psychology of small group dynamics is extremely difficult to analyze and predict, let alone project to a much larger scenario like an actual jury trial. And one of the MOST difficult issues to deal with in terms of viewing jury research as a predictive research technique is the functional, and/or formal, small group leader.

Just as with "real" juries, the foreperson, or informal small group leader, can absolutely lead the deliberations in a range from effectively evaluating the facts to insisting on discussing aspects of a mock trial that have no significant bearing to the jury instructions.

From exit interviews with actual jurors over the years, I have come to fully appreciate that mock jury research is a wonderful surrogate for learning so much about how facts, issues, witnesses, themes, etc. are evaluated by real juries. However, my ultimate caveat remains the same: don't prioritize risk analysis as a primary reason to conduct jury research!

Litigators, please work with your clients and trial research consultants in order to evaluate your case and refine your strategy. Make sure trial consultants use multiple mock jury panels to prevent anomalies. Make sure they utilize INDIVIDUAL evaluative tools to determine the true opinions of mock jurors.

Make sure that a trained moderator can "cut through" the bias of a small group leader to truly evaluate the predictability of mock jury panels. Utilize a trial consultant that can truly assist you with your case, and help manage your client's expectations.

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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