ALL THINGS JURY: Jury selection insights, Part Two

By R. Robert Samples | Feb 18, 2009

CHARLESTON -- In my previous two columns I wrote about research techniques that are utilized to assist litigators with the jury selection process. When professionally conducted, jury research can reveal attitudinal and lifestyle questions that may be utilized during the voir dire process.

These psychographic questions are much more effective in predicting juror behavior than demographic profiles. By its very nature, psychographic insight to human behavior can be correlated to particular tendencies of jurors regarding key issues in a trial setting. This insight is uncovered during the research process by developing, and testing, various hypotheses related to the themes of the trial.

As an example, I posed a question in my last column. I invited readers to consider which of the following profiles would be more sympathetic to a tobacco company's position during a product liability case -- a former smoker, someone who has never smoked or a current smoker. If you identified a former smoker as the answer, you are correct.

Former smokers are genuinely proud of their success in kicking the nicotine habit. For the vast majority of them, the effort to quit smoking was a serious exercise in self-discipline. One of the touchstones for most of them was the ability to thoroughly convince themselves that smoking is a very personal health hazard.

Once armed with a strong realization of this fact, former smokers tend to lose their tolerance of those who continue to smoke.

Further, this intolerance may manifest itself in less tolerance of individuals who seek damages from a tobacco company. After all, tobacco companies are required to warn users about the health hazards of smoking. The former smoker headed the warnings, right?

Why, then, should someone who is injured by using the product be compensated for not doing what the former smoker was able to do?

By now you may be thinking how obvious this sounds. However, this is only part of the story. Other attitudinal and lifestyle variables can also be correlated to potential jurors as a means to further determine their tendencies and leanings in a case. When used in combination, these variables can greatly improve a litigator's ability to select, or deselect, particular jurors.

As I also mentioned in my previous column, I am reluctant to utilize "real-life" examples of jury research techniques for many reasons. The primary reason is that the findings of professional jury research are confidential and privileged information paid for by a particular client. However, as I also mentioned, my firm has never worked on any tobacco cases. The example that I shared has been discussed many times within the jury research community to the point that it is literally common knowledge. By using this one small example, I hope I have provided you with a better understanding of the art and science of jury selection.

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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