CAN JURY CONSULTANTS MAKE THE DIFFERENCE? A Plaintiff s Perspective By: Kathryn Burkett Dickson

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1 CAN JURY CONSULTANTS MAKE THE DIFFERENCE? A Plaintiff s Perspective By: Kathryn Burkett Dickson Dickson Levy LLP 180 Grand Ave., Suite 1300 Oakland, CA I. Introduction. Although the trial budgets for plaintiffs employment lawyers are generally significantly more constrained than well-funded defense counsel s, in many cases plaintiffs lawyers should seriously consider using jury consultants at some stage in the case. Jury consultants provide a range of valuable services, beyond the widely-known voir dire and jury selection assistance. It has been my practice to consult with a jury consultant at some point in approximately one-third of my cases or more. While this may seem a higher than average number for plaintiffs counsel, I would encourage greater use of reputable jury consultants in our cases, as described below. II. Range of services. The following list identifies the types of jury services many jury consultants offer. One caveat about hiring a jury consultant should be kept in mind. No standards or regulations govern who can market their services as a jury consultant. The training, experience, and expertise of those who use this moniker varies widely. Be sure if you are spending money and time on such a consultant that you have thoroughly researched their background first, and are hiring someone with true expertise. Case analysis & theme development Choice of venue - demographic comparisons, venue evaluation research, social media studies Community attitude surveys 1

2 Jury research & analysis - focus groups, mock trials Motion practice, e.g., class cert motions, timelines for summary judgment Voir dire preparation & jury selection Witness assessment & preparation Opening statements & closing arguments Shadow juries during trial Courtroom graphics and other visual aids Post-trial juror interviews III. Benefits for plaintiffs counsel A. Case analysis & theme development This is one of the most useful services a jury consultant can provide for plaintiff s counsel. Unfortunately, many cases proceed all the way to (and through) trial without a coherent, understandable, and persuasive theme. Lawyers are notoriously incapable of capturing the gist of a case in a few, simple, memorable words or phrases. Good jury consultants, on the other hand, are well aware of the themes and short-hand phrases that resonate with jurors in their geographical areas. It is particularly useful to consult with a jury specialist early in a case to develop one or more possible themes that capture the essence of the case from plaintiff s perspective. Counsel can then use and develop the themes repeatedly throughout trial preparation, including written discovery, depositions, motion practice, voir dire, opening statements, direct and cross examinations, and closing. B. Choice of venue - demographic comparisons, venue evaluation research, social media studies From the plaintiff s perspective, demographic research or attitude surveys can aid in deciding which of the available venues might be most appropriate for a particular case especially one raising issues likely to be sensitive to many potential jurors. Examples might include a sexual orientation discrimination claim, or a case involving immigration issues or foreign national workers. In addition, jury consultants can be quite instrumental in assisting counsel either 2

3 in opposing a change of venue motion, or in proposing an alternative venue in such a motion. They can collect and analyze media reports, can compile attitude surveys, and often have connections with expert sociologists or social psychologists who can provide expert declarations. C. Community attitude surveys Jury consultants can develop, implement, and analyze community attitude surveys that can be useful in high-profile or particularly sensitive cases. As noted above, this kind of research can be helpful in choice of venue, or change of venue motions. It can also help in trial preparation, development of appropriate themes, drafting juror questionnaires, and in preparing for effective voir dire. D. Jury research & analysis - focus groups, mock trials Plaintiffs counsel commonly hire jury consultants to put together focus groups or to help with a mock trial. For the novice, it is important to emphasize that focus groups and mock trials are not particularly predictive of the likely outcome at trial. Instead, their value lies in the ability to test key issues and explore potential jurors' interpretations, reactions and attitudes toward the case, witnesses, themes, etc. Generally, a focus group or a mock trial involves a carefully selected panel of jury-eligible participants who match the characteristics of the actual jury pool in the venue in question. If the case merits it and the budget allows, it is quite useful to seat two separate panels of mock jurors, and have them deliberate separately. In most mock trials, two lawyers present what is generally 45-minute to one-hour clopenings, one for each side of the case that is, a combination of an opening statement and closing argument providing the mock jurors with the most significant facts and issues in the case. It is critical in conducting a mock trial or focus group that the opposing side be fully developed and presented with great skill. Counsel can learn more from actually losing the mock trial, by discerning those issues, themes, and evidence that resonate with jurors, in order to better counter those at trial. Of course, this should be carefully explained to one s client well in advance of the mock trial. In general, it has been my practice and that of my colleagues not to have the client present for the mock 3

4 trial or focus group. Typically, feedback is obtained from individual mock jurors through written questionnaires, group discussion led by trained jury consultants, or through a combination of both methods. Often, the jury consultant s facilities will permit observation of the jury deliberations through a one-way viewing window. In addition, jury deliberations or discussions are sometimes videotaped for later analysis. It is always amazing how little video cameras or jurors knowledge that they are being observed, affect the discussion. After a few moments, most jurors engage pretty vigorously. After the mock trial or focus group is completed, the jury consultants analyze the data and key findings and make recommendations to counsel in their preparation for further discovery, voir dire, jury selection, and the trial. Such information is also useful in decisions about potential motions in limine, or whether to retain or dismiss individual defendants, for example. The potential jurors reactions to specific testimony can be tested to determine whether counsel should make efforts to have such evidence excluded. Finally, the results of a well-done focus group or mock trial can be helpful in mediation or settlement negotiations. These extremely valuable sessions can be arranged to meet most budgets in significant cases, and can be done over a few hours to as long as two days. One example of their utility occurred in one of our cases, in which we represented a foreign national working in the San Francisco Bay Area on an H1-B visa. We were in a fairly conservative county and were interested in the potential reaction of jurors to the immigration issues in the case. We conducted a two-jury mock trial to test potential animosity toward foreign nationals employed in the area (particularly, the software and high-tech industry, major employers in our venue). One jury included potential jurors with the same or a similar ethnic background to the plaintiff. The second jury panel expressly excluded such individuals, as we thought their absence might embolden jurors to reveal potential biases. The results of this jury research project was very useful in voir dire, jury selection, and our ultimately successful presentation at trial in the case. 4

5 E. Motion practice, e.g., class cert motions, timelines for summary judgment Use of jury consultants to assist in motion practice (other than change of venue motions) seems to be more a practice of defense counsel than plaintiffs counsel, at least in my experience. F. Voir dire Preparation & jury selection This is another area in which plaintiffs counsel most frequently retain jury consultants. Prior to trial, the jury consultant generally will assist counsel in drafting a case-specific written juror questionnaire, and may be able to provide information that will aid in persuading a court to allow such a questionnaire. The consultant can then assist in review and evaluation of the individual questionnaire responses, including suggestions for follow-up live voir dire questions for specific potential jurors. For voir dire, whether written questionnaires are used or not, the consultant can design a system for evaluating prospective jurors as they are questioned. In addition, the consultant can aid in discussing an overall selection (or de-selection ) strategy. In most courts, the jury consultant is able to sit at counsel table to directly assist counsel in conducting the voir dire (particularly suggesting follow-up questions), and then assisting in proposed strikes for cause and peremptory challenges. G. Witness assessment & preparation Jury consultants can provide a reality check on various witnesses counsel intends to present at trial. Here, videotaped depositions are invaluable, as the consultant can provide a much more detailed assessment of the witnesses mannerisms, credibility, likeability, etc. after reviewing excerpts of their testimony. The consultant can also work with counsel and witnesses to improve their ability to communicate in the courtroom. H. Opening statements & closing arguments Because experienced jury consultants have an understanding of the likely reaction of jurors to certain arguments and specific language, they can be of great assistance in critiquing counsel s proposed opening statements and closing arguments. Often, they are 5

6 likely to suggest much more persuasive themes or language that can be employed to persuade the group of jurors that have been selected to decide the case. This is particularly the case where the consultant was directly involved in voir dire and jury selection. I. Shadow juries or jury monitoring during trial Jury consultants can either sit in the audience themselves, monitoring the progress of the trial, or can hire and de-brief shadow jurors hired to observe the trial and comment on its progress. Because of the expense involved, this is also a service that plaintiffs counsel rarely employs in employment litigation. I have observed defendants who have made such expenditures to increase their chances of prevailing. J. Courtroom graphics and other visual aids If a jury consultant has been involved in developing themes for trial, or in aiding with opening statements and closing arguments, it is also useful to have them critique the courtroom graphics or other visual aids counsel intends to present to the jury. Once again, someone trained and highly attuned to jurors will be invaluable in providing a reaction to the proposed visuals, to ensure that they are clear, understandable, tied in with the theme, and are ultimately persuasive. K. Post-Trial Juror Interviews After trial, a consultant can conduct post-trial interviews with jurors to gain insights into their deliberations and reasoning processes. This information can be valuable to fend off challenges of juror misconduct, if any such charge is made. It can also aid in the appeal. Finally, such information is extraordinarily useful in learning lessons from one case that can be applied to future cases and trials. 6

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