As trial lawyers we know the potential for a “stealth” juror on our panels. By that, we mean a person who has a secret agenda, an axe to grind which they conceal in order to get on the jury. See for example Molly McDonough’s article in the ABA Journal Law News entitled “Rogue Jurors” http://www.abajournal.com/magazine/article/rogue_jurors/ in which she cites actual trials where such jurors were discovered. Well known plaintiff lawyers Gregory Cusimano and David Wenner have written an article entitled “Starting the Search for the Right Jury” in Lawyers USA http://www.winningworks.com/files/startingthesearchfortherightjury.pdf. They state that outside research indicates that between 15 and18 percent of potential jurors would be fatal to one side or the other, usually the plaintiff. The research also shows that these stealth jurors want to make a statement or influence the outcome of the case in a biased way.
Trent Hammerstein has even published a book sold by Barnes & Noble titled “Stealth Juror: The Ultimate Defense against Bad Laws and Government Tyranny. He describes a stealth juror as “an ordinary citizen” who is not afraid “to exercise his right to judge not only the evidence in the case, but the very law” upon which it is based. While this is jury nullification, there is the same underlying kind of agenda for jurors who have an agenda of their own.
So, how do you discover people like this on your jury panel? Dr. Ken Broda-Bahm has written an article “Know a Stealth Juror When You See One.” (http://www.persuasivelitigator.com/2013/06/know-a-stealth-juror-when-you-see-one.html.) He discusses the problem in the George Zimmerman case in Florida where a potential juror said he had little knowledge of the case. However, he was confronted with a Facebook post in which he wrote about the case, “I CAN tell you THIS. ‘Justice’…IS Coming.” This author has several recommendations for identifying people like this. These include the juror who isn’t contributing and isn’t saying much. They may be just keeping their heads down in order to escape notice. He also suggests not spotlighting the correct answer, but instead offering a choice of reasonable sounding options as a test. He advises a “realty check” question which invites an exaggerated agreement indicating someone who is trying too hard to get on the jury. Most important, he recommends a complete check on social media for the jurors when possible.
Dr. Jeff Frederick wrote an article “Stealth Jurors” for the American Bar Association in September of 2012. He points out that since the goal of such a person is to get on the jury the most common strategies are (a) say as little as possible about their opinions, backgrounds and experiences (b) avoid making any extreme statements and (c) steadfastly insist they would be fair and impartial. One type of person use “technicalities” to avoid detection by not answering any question they don’t have to and providing answers that are correct but misleading. Another type of person is willing to lie or conceal. He suggests some of the ways to identify these jurors include:
- Answering in an unduly precise and restrictive manner
- Answers inconsistent with appearance, nonverbal characteristics or other answers
- Answers inconsistent with their own interests
Dr. George R. Speckart wrote an article in the National Law Journal entitled “To Down a Stealth Juror, Strike First.” http://www.courtroomsciences.com/LitigationConsulting/TrialConsulting.aspx. He recommends a jury questionnaire for detecting such jurors. He says there are three principle methods for detecting stealth jurors: (a) analyzing nonverbal behavior associated with deception (b) identifying discrepancies between written answers and oral voir dire answers and (c) determining bias through indications of bias.
Dr. Jo-Ellan Dimitrius suggested in an article “Spotting the Stealth Juror” suggested some of the following questions to a prospective juror:
- Have you followed in the media any cases similar to this case?
- What did you think of the outcome of those cases
- Have you written a letter to the editor? About what subject
- Have you ever called a radio talk show? What station and what subject
- Do you blog? What is the subject?
In summary, some of the techniques one should consider include the following:
- Ask about significant experiences which can lead to the discovery of bias.
- Ask silent jurors why they have been quiet.
- Use “reality check” questions to see if the answers show an exaggerated need to be on the jury
- Ask questions that give choices for answers to help gauge sincerity
- Be cautious of jurors who avoid a direct answer with “it all depends.”
- Have your co-counsel and paralegal monitor the other jurors while one juror is being questioned for tell-tell non-verbal reactions.
- Watch for the signs of such a jury which include (a) unduly precise and restrictive answers (b) answers which are inconsistent with appearance, nonverbal behavior or other answers and (c) answers which are inconsistent with their own self interest
- Evaluate written answers to jury questionnaires and verbal responses and behavior
NOTE: My wife and I leave for Botswana Africa this week and I will not be posting anything for several weeks. Thanks for checking back later
We all know the value of focus studies. The problem is there are so many ways of conducting focus studies that they can lead to incorrect conclusions. My own view is that mock trial studies, that is presenting a mini trial with plaintiff and defense evidence and argument is fraught with the danger of invalid conclusions. Even with professional help so much depends upon who presents the material, what is presented and how it is presented that there is a large danger of drawing invalid conclusions because a trial is battle of impression. The impression can vary greatly depending upon the previous factors. You can draw conclusions about issues, evidence and specific matters as well as gain insight about issues and even some information about jury profile. However, any broad conclusions about winning or losing and verdict amounts is very suspect.
Extensive focus studies done by professionals can be very expensive and often exceed $20,000 depending upon how they are conducted. I understand why many lawyers feel this is a bargain, but my own view is that informal focus studies are more beneficial for me, although having a professional consultant is always a good idea if you can do it.
My approach is the less that is provided by way of facts the greater the value of what you learn. I also believe focus groups can be very helpful regarding evaluation of clips of deposition testimony, exhibits you plan to use, voir dire and other case issues. I also think multiple focus groups are helpful and they do not have to be an elaborate affair.
If one conducts a mock trial focus study or a more complicated study, the question is what do you ask the jurors after it is over? I am not endorsing the procedure or the following questions, but here is a general outline of specific questions one might consider. This is not an approach I use, but I present it as a resource. The questions are no original with me, but gathered from a lot of sources I no longer recall.
- What are the two most important things you have heard so far about this case?
- What are the two most important things you have heard so far that help the injured plaintiff case? (Please answer this no matter which way you’re leaning)
- What are the two most important things you have heard so far that hurt her cases? (Please answer this no matter which way you’re leaning
- Wat are the two most important things you have heard so far that help the defendant case?
- What are the two most important things you have heard so far that hurt the case?
- If this case goes to trial in a courtroom, some jurors might decide that the plaintiffs should win this case. What do you think would be the two most important reasons they would do that?
- If this case goes to trial in a courtroom, some jurors might decide that the plaintiffs should lose this case. What do you think would be the two most important reasons they would do that?
- What could have been done to prevent this from happening?
- If this case goes in front of a courtroom jury, what will be the three most important things for the plaintiffs’ attorney to tell the jury?
- If this case goes in front of a courtroom jury, what will be the three most important things for the attorney for the defendants to tell the jury?
- Was the defendant negligent? __ Absolutely yes___ Probably yes___ Probably not___ Absolutely not
- Please explain why you feel that way:
- A defendant can be negligent and still not be a cause of the harm. With that in mind. Was any negligence of defendant a cause of the harm to plaintiff?___ Absolutely yes___ Probably yes___ Probably not___ Absolutely not
- Please explain why you feel that way
- How much money should the defendant pay to plaintiff?___ nothing___ A very small amount___ More than a small amount but less than his lawyers are asking for___ About what his lawyers are asking for___ More than his lawyers are asking for
- What else would you like to know in deciding the money?
- What helped you decide how much money was the right amount in compensation?
- What facts or arguments made it hard for you to decide about money?
- If other jurors decide on amounts of money higher than you did, why do you think they would do that?
- If other jurors decide on amounts of money lower than you did, why do you think they would do that?
- What would you like to say to anyone involved in this case?
- What would you like to see happen as a result of your decision-making in this case?
- How do you think cases like this one might best be resolved?
- What would you like to say to anyone involved in this case?
Most lawyers are convinced that focus studies are an invaluable method of getting helpful feedback regarding cases. There are a variety of ways of conducting these studies. One can use a telephone survey like the calls you get when there is a pending election. One can also conduct a case study with a group at a meeting place. This technique can involve numerous approaches from a full mock trial to simply showing documents to the group for a spontaneous reaction. Focus studies with groups have been done when the only evidence presented was a time line of events and they were left to deliberate. Other groups have been used for a reaction to proposed exhibits. Lawyers have experimented with proposed voir dire or opening statements and arguments. A single issue might be presented or a presentation where a party is a defendant and one where the party is not. Issues regarding the impact of admitting liability can also be tested. The variety of methods is really limitless.
The benefits of these studies is assistance in determining a value range and can be helpful with your client or even your opponent. It assists in finding the facts to emphasize as well in developing case themes. One can discovery general attitudes and create juror profiles. The benefits justify the expense as a general rule.
The studies do not have to be expensive. One procedure lawyers often overlook is focus studies done on the Internet. Instead of gathering a group to meet and discuss, the information is given over the Internet and the individual responds on the Internet. There are several providers offering this service. Here are some. www.virtualjury.com is an online focus group. Case materials can include text documents, video, auto and exhibits along with the facts of the case. www.trialjuries.com involves a similar procedure where the attorney provides the case information. The case is sent to a panel of people for review who log in, review the case and submit their reactions. www.ejury.com is a similar service where the attorney provides the information and the participants log in for review and evaluation. This service submits the material to participants in the area where the trial will occur. When a minimum number of responses (usually fifty) are received, the company analyzes the results. The results are printed and provided in a booklet to the attorney.
I recommend your exploring one of the online focus study sites for possible use in your cases.