Jury Consulting: Leveraging Social Science Expertise for Successful Voir Dire

Transcription

1 August 5, 2008 Jury Consulting: Leveraging Social Science Expertise for Successful Voir Dire 2008 Kroll Ontrack Inc.

2 Slide Materials To download a complimentary copy of today s slide materials, please follow these instructions: Go to Scroll down to the Other Event Materials section. Select today s presentation, Jury Consulting: Leveraging Social Science Expertise for Successful Voir Dire User ID: Password: August webinar

3 Daniel Wolfe, J.D., Ph.D. Dr. Wolfe is the Director for Jury Consulting, KrollOntrack/TrialGraphix Oversees the standards in practice of the trial consulting department nationwide An expert in the fields of witness preparation, voir dire, and jury selection, he is also skilled in providing quantitative and qualitative analyses of venue through focus groups and mock trials Has authored many articles on the subjects of juries, juror perceptions, ethics in trial consulting, and the interrelation of attorney gender and courtroom bias 2

4 Richard G. Stuhan, Esq. Mr. Stuhan is a partner in Jones Day s Cleveland office Extensive experience in jury research techniques and strategies, including the design and conduct of focus group exercises and mock trials, jury selection, and post-verdict debriefing Currently serves as chairman of the Cleveland Bar Association s Jury Service Project Co-authored, Best Practices: Jury Selection in the National Institute for Trial Advocacy Notes in July

5 Discussion Overview Introduction Effective Voir Dire Understanding voir dire and the role of jury consultants Effective voir dire strategies Parting Thoughts 4

6 Introduction 2008 Kroll Ontrack Inc.

7 Who Are Jury Consultants and Why Do I Need One? Jury consultants are social scientists specially trained in jury selection and persuasion Law school doesn t teach the skills and research techniques necessary to effectively select or communicate persuasively with a jury Professional jury consultants can significantly increase your likelihood of success at trial by maximizing the effectiveness of your voir dire and trial presentation 6

8 Who Are Jury Consultants and Why Do I Need One? Jury consultants bring a different perspective to the process The process works best when counsel and the consultant complement each other Selection is based on combined input of consultant and counsel Jury consultants are not a substitute for counsel s experience and instincts, but rather a supplement 7

9 Effective Voir Dire 2008 Kroll Ontrack Inc.

10 Discussion Overview Effective voir dire Understanding voir dire and the role of jury consultants Effective voir dire strategies 9

11 Understanding Voir Dire and The Role of Jury Consultants 2008 Kroll Ontrack Inc.

12 Understanding Voir Dire Originates from Latin oath to tell the truth verum dicere Process of selecting (and rejecting!) potential jurors to hear a case based on their backgrounds and potential biases Process works by allowing each attorney to strike potential jurors either by mounting a challenge for cause or using a finite number of preemptory challenges 11

13 Understanding Voir Dire Goals of voir dire Weed out potential jurors who are biased against your case This is the most important goal Create rapport and trust with future jurors Preview your case themes Voir dire is less a matter of selection than de-selection 12

14 Understanding the Importance of Voir Dire Allowing a loose cannon juror to slip through the jury selection process into the jury box could devastate your case No matter how seasoned one s intuition, empirical data and jury selection research remain the most reliable predictors of jury predispositions A successful jury is instrumental to winning cases No matter how good the evidence or how persuasive the presentations, you cannot win unless the jury is open to your theory of the case 13

15 Understanding the Role of Jury Consultants In Voir Dire Development of jury selection strategy Development of supplemental juror questionnaire Works best if juror profiling research is conducted in advance of trial Development of tailored voir dire questions for counsel and for the court In-court assistance with jury selection Supplemental juror questionnaire evaluation and ranking Must take account of both relevant attitudes and leadership 14

16 Effective Voir Dire Strategies 2008 Kroll Ontrack Inc.

17 Voir Dire Strategy: Choose The Jury, NOT the Juror Consider the makeup of the jury holistically not just individual jurors Anticipate how the group might work together Sometimes you might want to leave bad jurors on the panel in order to preserve good jurors Post-jury selection, a jury consultant will provide insight into how this jury will impact your trial Who will be the leaders of the jury? Who will be the benchwarmers? Who is the likely foreperson? 16

18 Voir Dire Strategy: Guidelines to Build Rapport, NOT Fences Introduce yourself and your client Introduction personalizes you and your client Opportunity to make a positive first impression Let the jurors know what to expect from you Teach, don t preach During voir dire, jurors respond better to lawyers who educate rather than advocate Voir dire is an opportunity to educate about judicial process and your case, and to provide jurors with necessary tools to stay actively involved in the case 17

19 Voir Dire Strategy: Guidelines to Build Rapport, NOT Fences Strategically use the art of self-disclosure to disarm your jury pool Illustrate for the jurors a hypothetical case in which you, the attorney, have a common predisposition that would objectively not make you a good juror Example: A member of PETA would not be a fair juror in the prosecution of animal cruelty This allows the juror to feel more comfortable in admitting that he or she is not the best juror for the case Don t revert to cross-examination style 18

20 Voir Dire Strategy: Guidelines to Build Rapport, NOT Fences Stick to open-ended questions Every juror should be given the opportunity to talk Even jurors who appear good based on their written questionnaire Written questionnaires are off base about 15% of the time in predicting a juror s verdict orientation Keep it brief Succinctness makes you appear more prepared and polished Wasting a juror s time will not be appreciated 19

21 Voir Dire Strategy: Plan Ahead or Pay Later An attorney should have a voir dire strategy before walking into a courtroom Prepare Top 10 question list Aids attorney in remembering important questions without taking notes Makes attorney appear more at ease Also, consider practicing questions to enhance a polished appearance and avoid wasting jurors time 20

22 Voir Dire Strategy: Plan Ahead or Pay Later Use of written questionnaire is a substantial benefit in conducting an effective voir dire Jurors don t have to sit idle while counsel asks the same question of the entire venue Answers to written questions provide a spring board for follow-up questions during real voir dire 21

23 Voir Dire Strategy: Plan Ahead or Pay Later Tactical Scenarios Uncovering good jurors to uproot the bad jurors Risk of uncovering good jurors along with bad jurors always exists It is better to be armed with information even if the opposing counsel also has the information rather than to be ignorant of jurors thoughts, feelings, and biases Best question is one where the predictability of the answer is not obvious 22

24 Voir Dire Strategy: Plan Ahead or Pay Later Tactical Scenarios Playing chicken with opposing counsel Arises when considering exercising preemptory challenge against potential juror, but you have the sense opposing counsel doesn t want the juror either Given that one has a finite number of strikes, you may choose to take a pass on the strike in hopes that opposing counsel will strike for you Risk of playing chicken may be worthwhile if potential juror is only somewhat troublesome, but you should exercise a strike if you could not live with having the person on the jury But, if there is any real chance that opposing counsel may strike a particular juror about whom you are concerned, save your strike for this juror until the end of the process, if that is an option 23

25 Voir Dire Strategy: Consider Using Real-Time Jury Intelligence Real-time jury intelligence is a powerful tool in a jury consultant s toolbox that utilizes cutting-edge technologies to provide timely and actionable background intelligence on prospective jurors Intelligence can be delivered either out of court or electronically while the trial team is conducting voir dire 24

26 Voir Dire Strategy: Consider Using Real-Time Jury Intelligence Intelligence utilizes the expertise of professional investigators who can provide your legal team with important information about prospective jurors, such as: Criminal, civil litigation and bankruptcy history Political and religious affiliations Current and previous occupations Education Family history Property and residency history Media appearances Internet profiles Other customized information 25

27 Parting Thoughts 2008 Kroll Ontrack Inc.

28 Parting Thoughts Selecting the best jury for your client is too important to leave to chance, so utilize the experts! After months even years of preparation for trial, you want the case you have built to be communicated to jurors who will decide your case Jury consultants and strategic demonstrative exhibits will minimize communication barriers and increase the persuasiveness of your case Lawyers can enhance the likelihood of a successful outcome by partnering with professional jury consultants 27

29 Slide Materials To download a complimentary copy of today s slide materials, please follow these instructions: Go to Scroll down to the Other Event Materials section. Select today s presentation, Jury Consulting: Leveraging Social Science Expertise for Successful Voir Dire User ID: Password: August webinar

30 2008 Kroll Ontrack Inc.