Gaining an Edge in Jury Trials

The key to success in any trial is preparation. Over the years this focus on preparation increasingly has taken advantage of techniques designed to bring "jurors" into the process. In this issue we will consider two research techniques, small group research and juror profile surveys, and the application of knowledge designed to help attorneys be more successful at trial.

Small Group Research

Small group research is designed to pretest the case before trial by providing answers to key questions: What are likely verdicts? What do jurors think are the strengths and weaknesses of the case? How do jurors respond to the parties and their arguments? Juror feedback through small group research can provide answers to these and many other questions. As the name implies, small group research brings together small numbers or groups of jury-qualified residents from the trial jurisdiction. In general, these "juries" are presented with information concerning the case. Based on this information, jurors provide feedback in terms of verdicts, deliberation comments, and responses to a structured group interview.

Types

There are two basic approaches to small group research; focus groups and trial simulations. These approaches generally differ in terms of the information presented and the procedures employed. Focus groups tend to be discussion groups that receive summary information on the case, provide verdicts, and participate in a structured group interview. Trial simulations, on the other hand, attempt to more closely approximate what jurors experience in an actual trial. Thus, trial simulations usually provide a greater amount of information which is presented in a trial format. Underlying each approach is the goal of discovering how jurors view the case. The following are a few examples of the use of small group research.

Examples

"The Victim Defense." Suppose you could make two different arguments to a jury given the same set of facts. The question naturally arises, which argument would be most effective? That's exactly the position we faced in a case where an individual defendant was being tried along with his employer on criminal charges. We were interested in examining whether the individual defendant stood a better chance of acquittal if he presented a unified defense argument (i.e., the corporate defendant and the individual defendant did nothing wrong) or if he presented a victim defense argument (i.e., the corporate defendant was trying to unfairly blame its employee for breaking the law).

To test these arguments, we presented jurors with two versions of the same case. Both versions contained exactly the same facts. However, in the victim-defense version, the defense argued that the individual defendant was a "victim" of the corporation's attempt to avoid responsibility. The results of this study were dramatic. As shown in Figure 1, acquittal rates for the individual defendant almost doubled when he made the victim argument (74% v. 39% for the victim and unified defense arguments, respectively).

Multiple defendants. Often our clients face situations where they represent or are working closely with multiple defendants in the same case. The question arises: "Will jurors lump the defendants together or will jurors make distinctions between them?" The implications of the answer to this question are great. In many cases, the "pointing fingers" defense approach can be disastrous. However, as we saw above, presenting a unified defense can be detrimental to one or more of the defendants. Often our small group research indicates that jurors view different defendants as being differentially responsible for what happened.

For example, take the actions of two doctors who are defendants in a medical negligence case. Do jurors view both the defendants as being equally negligent? In a case with this issue, we presented groups of jurors with summaries of the case which contained separate arguments for the two defendants which highlighted their respective actions. In this case, jurors did not view the actions of the defendants as being equally negligent. Figure 2 shows that one defendant fared very well with jurors while the other defendant did not fare as well. Dr. Smith was found negligent by only 32% of the jurors while Dr. Jones was found negligent by 59% of the jurors.

Additional considerations

A few final points should be made concerning small group research. First, studies should include a number of groups or juries. Employing one or two groups can lead to an inaccurate picture of how juries would view the case, particularly when the evidence is close. Second, where possible, presentations should be made on videotape. This method offers greater control over what information jurors receive as compared to live presentations. This is a crucial consideration when the presentation is being made at different times. Finally, do not wait until the last minute to conduct these studies. Not only does the trial team benefit from knowing the results as early as possible but early testing also allows for the opportunity to retest the impact of changes in the case or arguments.

Juror Profile Survey

Small group research is useful in pretesting a case, but because of its usually limited sample size, it is often less useful in identifying which jurors might be better or worse for the client. A very useful approach to the issue of jury selection is available through another method, opinion surveys. Large-scale opinion surveys, often called "juror profile surveys," capitalize on the use of larger sample sizes to determine who would make favorable and unfavorable jurors.

Developing juror profiles

Juror profile surveys draw on the opinions of 500 to 1,000 or more jury-qualified residents of the trial jurisdiction. "Jurors" are asked for, among other information, (a) their views on relevant general opinions, (b) their views on the actual case or a relevant hypothetical case, and (c) information on their backgrounds. The information gathered is analyzed to determine what characteristics of jurors predict their views on the case (or certain critical issues). Armed with this information, attorneys can more effectively use their peremptory challenges during jury selection.

Example

An example of this approach comes from a breach-of-contract case in which we addressed the jurors' opinions concerning contract issues, their willingness to support either party in a hypothetical case description that mirrored the case, and detailed information concerning the jurors' backgrounds. We discovered that we only needed to know four characteristics of jurors to predict how favorable they would be to our client. These characteristics would be accessible during voir dire. However, we didn't stop there.

We tested these profiles by comparing what the survey profiles indicated would be good or bad jurors to what jurors actually did in a trial simulation. We found that the profiles were accurate. Figure 3 reveals that those who were predicted by the survey to be pro-plaintiff rendered the most verdicts favoring the plaintiff (71% plaintiff's verdicts). Those predicted to not favor either side split their verdicts between the two parties (40% v. 60% for the plaintiff and defendant, respectively). Those jurors predicted by the profiles to favor the defense indeed did so. Of these jurors, 86% rendered verdicts favoring the defense while only 14% favored the plaintiff.

Additional considerations

Juror profile surveys also provide additional benefits. First, with the variety of opinions sampled in such surveys, the relative power of potential themes can be examined. Discovering in advance that the jurors do not strongly endorse a potential theme enables attorneys to drop consideration of ineffective themes. Second, these surveys also provide a general view of the impact of certain facts and issues in the case. Jurors' reactions to the facts and issues presented in the case description can serve as a basis for tailoring a more effective case, particularly in the absence of the more detailed information provided through small group research.

Other Preparation Assistance

Clearly, small group research and juror profile surveys help take some of the guesswork out of case evaluation and jury selection. However, what about those situations where limited budgets prevent their use? In these circumstances, attorneys can draw on the extensive experience many jury consultants have in a wide variety of cases and jurisdictions. Let us consider two important areas; voir dire questions and opening statement review.

Voir dire questions

Whether it involves questions for use in voir dire or a juror questionnaire, it is important that these questions maximize their potential benefit. Questions must be considered not only in terms of their content but their phrasing as well. Varying the phrasing of questions can produce dramatic differences in responses. Asking jurors, "Would you be able to render a fair and impartial decision?" rarely achieves its goal of uncovering bias. Changing the question to a more concrete and less judgmental form increases its effectiveness. For example, questions such as "Would you have any reservations in voting to convict/acquit the defendant?", "Would you have any reservations in awarding the plaintiff $15 million?", or "Would you have any reservations in returning a verdict of no money damages for the plaintiff?" will produce much more candid answers from jurors. Jury consultants with years of experience can maximize the impact of such questions at relatively minimal cost.

Opening statement review

Opening statements play a critical role in being successful at trial. While published research does not support the oft-quoted notion that 80% of jurors make up their minds by the end of opening statements, research and theory do support the importance of delivering a powerful (and accurate) opening statement. Presenting a clear, cogent, and emotionally appealing theme of the case is an important first step in developing a powerful opening statement. Jury consultants can play a vital role in capitalizing on techniques that help jurors retain what you say and understand your "story," and in helping you anticipate and attack your opponent's arguments.

Conclusion

Techniques that bring "jurors" into the process can yield substantial benefits in your preparation of a solid case for trial. Small group research (e.g., focus groups and trial simulations) enables you to pretest your case to understand how jurors would react to it. Juror profile surveys provide an empirical basis for considering which potential jurors would be relatively favorable or unfavorable. Finally, capitalizing on the assistance available from jury consultants in other areas of trial preparation, e.g., voir dire questions and opening statement review, serves to further increase the effectiveness of the trial preparation process.