I’m teaching this week at the Spence Trial College in Wyoming so I only have time for a brief thought. A trial lawyer friend had a bad result and we had an email discussion about why his focus study was inconnsistent with the verdict. Here are my comments to him.
Focus studies are like computers – garbage in and you get garbage out. A true mock jury presentation is probably the most dangerous for getting wrong information because of the rule of impression. Unless you are doing a full David Ball multiple group at once, I have little confidence in a full mock jury study. In my view you are better of with an internet study for rough evaluations or a study where less is more i.e. key issue information without details and simple verdict forms before discussion plus a lot of other factors too involved for an email.
When I say jurors decide based upon unconscious factors do I mean the outcome of the trial is predestined? Well yes, in the sense the values the arrive with, the significant life experiences they arrive with and the primal drive of survival will dictate how they feel on issues. If in conflict with your case issues you lose period, unless you can show your case issues are in fact consistent or at least not in conflict with those values, life experiences or survival drive. And, worse then that, it is likely they will not share these with you truthfully. sometimes because they don’t know what makes them think as they do. Sometimes because they have an axe to grind. Sometimes because they want to be on the jury or simply because they are reluctant to say it in front of others. The truth is that once you have picked your jury, your case is with some rare exception already over as to what they will do. You can revise the numbers perhaps, but your are unlikely to change who wins. And that’s before they hear the evidence. Reptile is too over promoted as some kind of key where all you have to do is utter some words and you win.
How do you pick a jury? Well, my view is that first of all the objective is not to convince people your case should prevail. Nor to educate or influence them. The goal is get them talking and hopefully among themselves so you can listen to ascertain values, discover life experiences and find the evil bastards that you must get rid of, but hopefully bond the rest while establishing your credibility as being non judgmental and dedicated to your client. That’s part of my talk to the students at the Spence College next week, but it’s not original with me. Rather a refinement of Spence ideas, Ball concepts and experience. The real problem is the judges don’t believe in voir dire and think their job is to be time efficient. As a result they take all the time they want with silly an inept questions and give the lawyers inadequate time for this key part of the trial. Result, we are likely to make mistakes in our jury selection because we didn’t have enough time to do it right.