Presenting successful arguments at trial can be very difficult without some familiarity with the six or 12 people who will be rendering the verdict. There are a number of ways attorneys can develop knowledge about jurors and how they are likely to make decisions about your case.
Whenever possible, obtain the jury list in advance of trial. By reviewing the list, you can learn about the types of people you might find on your jury. You may observe, for example, that many of those on the list are retired farmers, or nurses, or teachers, as opposed to businesspeople. This knowledge will help you tailor your argument to your listener.
In many jurisdictions, in addition to the limited information available from a jury list, each prospective juror completes standard questionnaires that will provide more details about the person’s background. These questionnaires should be studied not only to determine whom to select for the jury, but also to help guide the presentation of your case.
Never underestimate the value of voir dire, the traditional way to learn about prospective jurors. In many jurisdictions today, courts do not permit lawyers to conduct individual voir dire. Where this is permitted, you should take extensive time to evaluate your case and to determine the types of people you think would be not only best suited for the case but also most harmful. In many instances you may find yourself in the position of “unpicking the jury” (i.e., identifying the two or three worst jurors and seeking to remove them).
Regardless of whether you participate in individual voir dire or the judge asks the questions based on counsels’ written suggestions, consider asking or proposing questions that are indirect and that camouflage your real goal. Asking, “Is any member of the jury panel biased against the police?” may not elicit the same information as asking “Have you or has anyone close to you ever been arrested or charged with a crime?” As your arguments should be tailored to the decision-maker, never take voir dire for granted. From voir dire, you gain information to help you select a jury and to shape your argument.
Conducting skillful voir dire is an art. You must study the subject, practice developing your skill, and never undertake it without careful planning. Unfortunately, many arguments are lost because the wrong juror was selected. You should try to prevent this from occurring by asking the proper voir dire questions to expose and eliminate those with a bias that even the best argument will not be able to overcome.
To conduct effective jury research, you will often need the assistance of a professional jury consultant who is trained to conduct and analyze behavioral research. The cases most appropriate for such research are those involving unusual complexity or high stakes.
Take, for example, a multiple-death case arising from a plane crash in which the defendant manufacturer was alleged to have designed and built a defective light aircraft. In this case, the defense relied on a jury consultant to provide guidance on how best to demonstrate to the jury that the aircraft was airworthy.
Three alternatives were evaluated: a film showing the aircraft; jury inspection of the aircraft at a local airport hangar; and a model of the aircraft. A study performed with three matched groups of mock jurors who were respectively shown the film, the actual plane, or the model indicated, surprisingly, that the model plane was the most helpful of the alternatives. The actual plane produced a negative response because the jurors regarded it as frighteningly insubstantial, and the presence of oil and grease stains on the tarmac heightened their fears. Based on this study, the model was selected for use in court and contributed to a verdict for the defense.
Another effective use of a jury consultant is to help select or strike prospective jurors. A consultant, relying on data developed by surveys, interviews and focus groups, can profile the types of jurors who are likely to be receptive to your argument. The consultant can then assist you at trial in recognizing which prospective jurors best fit the profile.
In some cases, a consultant may recruit a “shadow jury” to watch the actual proceedings as if they were the jury. The consultant can get daily feedback from the shadow jury on issues such as what seemed confusing, what worked well, and what did not. One of the unique benefits of this process is that the shadow jury can indicate what they would like to know about the case when you still have an opportunity to make changes in your presentation.
Another helpful tool to learn how jurors may react to your argument is a mock trial. Here, you present your case before a consultant and a group of private citizens recruited to hear the case, render a verdict, and participate with you and the consultant in a discussion about the case.
Recruits are selected from the community and are likely to match the types of people who will be on the actual jury. When you present the case, colleagues in your office can play opposing counsel, and actors or staff members can be witnesses. If you have the facilities, it is very informative to watch the deliberations through a one-way mirror. If there is no one-way mirror available, put a camera in a corner of the room and videotape the deliberation for later review.
After the verdict, meet with the mock jurors and seek constructive criticism. The consultant can ask questions of the group to help you understand how the jurors reacted and what additional information they might have wanted. You can then reshape your argument for presentation to the actual jury.
Of course, hiring a jury consultant does not guarantee a successful result. There are, in fact, some self-styled jury consultants whose work is not scientific and whose guidance is, in reality, no better than what you might receive from a stranger selected at random.
Sometimes, even well conducted jury research will prove to be of minimal value, such as when the jury that is seated through no fault of the consultant bears little resemblance to the group that was surveyed. Nevertheless, properly conducted, jury research can often provide enlightening information about your audience that will enable you to develop and deliver a more effective presentation.