Best Article I Read This Week: The Science of Jury Selection and the Art of Conversation

By
Theodore O. Prosise Ph.D.

Tsongas Litigation Consulting

The goal of jury “de-selection” is to reveal jurors with attitudes and experiences antithetical to your case themes and messages.  Effectively and thoughtfully observing juror data and reactions, and then interpreting and evaluating communicative expressions, takes experience, expertise, organization, and effort.  Creating, through performance, the environment conducive to such public expression in a court of law is critical.

The courtroom is an intimidating place; especially for potential jurors.  For many, it is their first time in a courtroom. The formality of the process and the unique elements of the communicative environment can impede their comfort in expressing their views.  In addition, they are often unfamiliar with issues that are deeply embedded within a trial team’s experience.  As such, what can roll off a lawyer’s tongue in questioning may take extra time for potential jurors to process, assess, and react to.  Because the lawyers cannot (or at least are not supposed to) discuss their evidence or the law in voir dire, jurors are often asked many abstract questions which they need time to process before considering how they should answer.  But here is the conflict….

Read the full article here:

http://tsongas.com/blog-posts/the-science-of-jury-selection-and-the-art-of-conversation/

Avoid Market Research Mistakes in Your Mock Trial

By Dr. Ken Broda-Bahm:

In a recent piece in Forbes online, Roger Dooley tells his own story of a spectacular market research failure. His company was involved in metal sales and competed in a market with an overall price similarity. Thinking that their product had some quality advantages over the competition, the company wanted to charge a higher price. The market research they did showed that price came in dead last as a concern, with likely customers focused on quality, delivery speed, and customer service instead.

Roger Dooley’s audience for this piece is market researchers, but the critique and the caution applies just as well to those who conduct litigation focus group and mock trial projects. There are definite similarities between the legal pretrial research and the market research fields, since we often use the same recruiters, the same facilities, and have similar goals in testing the public’s reaction to new information.

Read more here:

http://www.persuasivelitigator.com/2013/10/avoid-market-research-mistakes-in-your-mock-trial.html

Show You’re Sorry, Even When You’re Not at Fault

By Dr. Ken Broda-Bahm:

When someone causes you some kind of harm, say they step on your foot, they’ll say “I’m sorry.” When you’ve experienced some kind of misfortune or loss, like a death in the family, people will again say, “I’m sorry.” In that latter example, they aren’t (we presume) admitting that they had anything to do with the death. In the first example, “sorry” means “I wish I hadn’t done that.” In the second example, “sorry” means “I recognize your loss.” Two different acts that just happen to share the same word, “sorry.” As we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?

According to some new research, yes, it does. Calling them “superfluous apologies,”…

Read more here:

http://www.persuasivelitigator.com/2013/10/show-youre-sorry-even-when-youre-not-at-fault.html

Is Hiring a Jury Consultant Really Worth It?

by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant

If you are a trial lawyer, would you prefer to know which jurors are going to reject your case after the trial or before?

Why retain a jury consultant before you are ready to pick a jury?  Because you have no control over who shows up and only a limited number of strikes during the jury selection process.  Besides, certain types of jurors are never going to vote your way, no matter what you do. When they reject you, they will do so vehemently (and, if possible, punitively), and they may even take other jurors along for the ride. The only good jury is one that agrees with you, but to know which jurors are on your side requires waiting until the trial is over. Or does it?

You can reliably discover what types of jurors accept or reject your case (through jury profiling) and why they do so..

Read more here:

http://www.a2lc.com/blog/bid/67513/is-hiring-a-jury-consultant-really-worth-it?source=Blog_Email_%5BIs%20Hiring%20a%20Jury%20Con%5D

17 Tips for Great Preferred Vendor Programs

by Ken Lopez
Founder/CEO
A2L Consulting

Below, I share some of the best practices as they apply to the selection of a litigation consulting firm based on what I have seen from both law firms and in-house departments recently.

1. Get bids based on scenario pricing: A major national insurance firm requested a preferred rate for our jury consulting, litigation graphics and trial technology services. However, instead of focusing on the billable hour, they asked for scenario pricing like “one day mock trial, three panels of 12 jurors.”  I thought this was a smart approach, and we can certainly answer similar questions that specify scenarios such a five-day patent trial over two patents with 30 exhibits in the Southern District of New York and no wired courtroom; or a scenario of trial technology only in a three-week trial in the Eastern District of Texas with 20 video depositions.

Try to obtain discounted blended rates for bundles of services:

Pricing a

mock trial

is very different from pricing of litigation graphics. For a mock, most of the money spent will be on the facility and the jurors. The professional fees are small in comparison. However, it is possible to blend rates for jury consulting, for litigation graphics consulting and for trial technology services. When asked, we will do it for the entire firm’s set of services, although, it is influenced by the scope of the work to be performed.

Read more here:

http://www.a2lc.com/blog/bid/66290/17-tips-for-great-preferred-vendor-programs?source=Blog_Email_%5B17%20Tips%20for%20Great%20Pr%5D

Danger! Peremptory Challenges Under Attack from Washington State Supreme Court Justice

By: Glenn Kuper Ph.D., Theodore O. Prosise Ph.D.

Recently the highest court in Washington seems to have set their sights on the issue of peremptory strikes in the jury selection process.  The article, “Wash. justices decry race bias in jury selection,” discusses an argument made recently by state Supreme Court Justice Steven Gonzalez that the use of peremptory strikes increases the potential for racism to play a role in jury verdicts.  Justice Gonzalez argued that peremptory strikes, a 700 year-old practice, have been used to unfairly eliminate minority jurors from jury panels, and according to Justice Gonzalez, should be eliminated.  However, this is a classic example of “throwing the baby out with the bathwater,” as the proper use of peremptory challenges, when informed by information gathered through robust voir dire and supplemental jury questionnaires, can actually reduce the instances of bias in jury decision-making.

Jury consultants have the opportunity to observe more mock jury trial deliberations and conduct more in-depth post-verdict interviews than virtually anyone else in the judicial system.  And we can tell you a single individual with bias or prejudice against a particular corporation, against management in an employment case, against law enforcement, or against a particular “type” of plaintiff can exert tremendous influence on a jury.

Read more here:

http://tsongas.com/blog-posts/danger-a-concerning-development-in-justices-views-of-jury-selection-practice/

12 Insider Tips for Choosing a Jury Consultant

by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant

1. Ask people you know and trust who have gone to trial with the jury consultant for recommendations. There is no substitute for talking with people who have actually worked with the consultant. Reputation alone is not enough to go on.

2. Test the waters. Provide the candidates with the same set of information and see what suggestions they come up with at an initial meeting. This allows the jury consultants to do what they are hired for – absorb and interpret information and turn it into useful recommendations. This kind of trial run enables counsel to test the waters at no cost or risk.

3. Find a consultant whom you are comfortable with, but not too comfortable.

Read more here:

http://www.a2lc.com/blog/bid/66427/12-insider-tips-for-choosing-a-jury-consultant?source=Blog_Email_%5B12%20Insider%20Tips%20for%20%5D

10 Signs of a Good Jury Questionnaire

by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant

A jury questionnaire is distributed to jurors when they arrive for service. More often than not, this is a highly contested document that all parties want to have a voice in crafting. Knowing what to ask for without overreaching is critical since a judge may revert to a default jury questionnaire.

As in any investigation, answers are only as good as the questions. Accordingly, a jury questionnaire should avoid “garbage in/garbage out” like the plague.  I have seen far more bad questions than good ones on jury questionnaires.  The following is a guide to help avoid questionnaires that ask a lot, but answer little by way of useful information and helpful results.

A good jury questionnaire …

1. Avoids questions that reveal your good jurors.Perhaps the most frequent mistake is asking questions to reveal friends rather than enemies. For example, why should a civil defendant ask, “Do you think there are too many frivolous lawsuits?” or “Do you agree there should be a cap on damages?”  If someone agrees, you have just given your opponent a gift.  You’ve done their job for them and made it easy to target your good jurors for follow-up questions or a strike, whether for cause or a peremptory.

   Instead, target enemies!  For example, better defense questions leave more room to reveal adverse opinions to your side, such as, “Do you believe that if a case gets to court, it must have merit?”

2. Is based on data, not opinion or past experience alone.

Read more helpful hints here:

http://www.a2lc.com/blog/bid/65970/10-Signs-of-a-Good-Jury-Questionnaire?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+a2lc+%28The+Litigation+Consulting+Report+from+A2L+Consulting%29

7 Questions You Must Ask Your Mock Jury About Litigation Graphics

by Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

So, you’ve made the time, effort, and budget commitment to conduct a mock jury exercise to test your case before trial. In my opinion and in the opinion of almost every litigator I’ve worked with, all this time and effort is generally well spent. But if you fail to get the right feedback from your mock jurors, you’ve wasted your time and resources.

What is that “right” feedback and how do you get it?  Your jury consultant should lead the way in this regard (ours has a Ph.D. in psychology and over 30 years’ experience), but the feedback you’re looking for relates primarily to whether the jurors felt they understood your case, accepted your “story,” and trusted your theme – and WHY. If they did and the evidence made sense to them in relation to each of these aspects of your presentation, you’ve likely got a winner, all things being equal.

An important aspect of your case and how it was presented to the mock jurors is your demonstrative evidence and litigation graphics. These will likewise play a key role in your actual trial and its success.  It’s important to test the graphics you intend to use or are considering using at trial with your mock jurors. These graphics will have been carefully, professionally designed to track your mock “clopening” (a contraction of opening and closing) argument and should highlight the important themes, storylines, evidence, and expected testimony of your case.  Here are seven essential questions you must ask your mock jurors about your litigation graphics:

1.  Why Did The Jury Reach The Outcome It Reached?

Full Article here:

http://www.a2lc.com/blog/bid/65558/7-questions-you-must-ask-your-mock-jury-about-litigation-graphics?source=Blog_Email_%5B7%20Questions%20You%20Must%5D

10 Things Every Mock Jury Ever Has Said

by Laurie R. Kuslansky, Ph.D.
Jury Consultant

For decades and in every part of the nation, mock jurors who are presented with various fact patterns and legal issues tend to have the same reactions. Some are helpful and others are harmful, depending on where you stand in the case.  Knowing that these issues recur over and over can help to prevent those which are unfavorable to you:

 

1)     Why did the plaintiff wait so long to sue?

While there may be good reason to delay filing suit, mock and actual jurors often use the delay between the alleged problem and the filing of a claim as a yardstick of its merit.  The longer the gap, the less credible the claim.  If counsel fails to address this issue, it tends to work against the plaintiff. It is especially damaging, for example, when someone claims an issue in the workplace, but waits until they are no longer employed. To many jurors, this signals  that it was the termination, separation, or voluntary departure that was the issue, not the conduct, such as discrimination, that is the subject of the complaint.

 

2)    That doesn’t make sense.

Lawyers don’t always put their case through the basic “smell test” or test of common sense from the…

Read more here:

http://www.a2lc.com/blog/bid/65267/10-Things-Every-Mock-Jury-Ever-Has-Said?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+a2lc+%28The+Litigation+Consulting+Report+from+A2L+Consulting%29