Wednesday, November 18, 2015

Big Changes Coming for Jury Selection?

Regardless of what the U.S. Supreme Court said in Batson v. Kentucky, everyone involved in litigation knows race plays an outsized role in jury selection.  Studies have shown that during criminal trials, prosecutors strike black jurors at a higher rate than whites, and in civil trials defense attorneys often do the same.

When a Batson challenge occurs, attorneys have been able to rest comfortably knowing most judges will accept even the flimsiest race-neutral reasons

But that might change soon.  On November 2, the Supreme Court will hear arguments in a case that could upend the way peremptory challenges are used and how lawyers must justify whom they choose to dismiss. 

The case revolves around the 1987 murder trial of a black man in Georgia.  Consistent with studies, the prosecutors used their peremptory challenges to strike black jurors and defense attorneys used theirs on whites.  The result was an all-white jury that convicted the defendant and sentenced him to death.

In 2006, the convicted man’s appellate lawyers obtained prosecutors’ jury selection notes under Georgia’s Open Records Act, and these notes contained information indicating the role of race in their decision-making process.  Prosecutors wrote “B” next to all the black jurors’ names and made a list of the black jurors they could accept versus those they felt they had to strike. 

There’s no telling how the Court will decide this case, but there are still lessons to be learned here.  It’s entirely possible some judges may be emboldened by the fact the Court is hearing this case at all and start demanding more substantial race-neutral reasons for striking jurors.  Here are a few suggestions for how to strengthen your jury selection process, no matter how the Court decides: 
  • Look beyond race.  Striking jurors based on race is often the lazy way out– whether it’s done by plaintiff attorneys or the defense.  We believe personal experiences and attitudes are the most important factors to consider when evaluating potential jurors.  Instead of race, focus on truly race-neutral factors, such as education, relevant life experiences and jurors’ opinions about personal responsibility.  Also, there are some cases where minority jurors might be more favorable to the defense – we can help you identify those cases.
  • Beef up your reasons.  You shouldn’t feel comfortable offering a judge feeble excuses for striking a juror, such as, “I didn’t like the way he looked at me.”  As mentioned above, there are always better reasons to support your gut feeling than someone’s race, and it’s your job to find them.  If necessary, spend extra time questioning those jurors you think you’re likely to strike.
  • Note the race of ALL jurors.  It’s unlikely you’ll ever be compelled to turn over your jury selection notes, but it’s possible you could misplace a page or inadvertently give opposing counsel some other way to catch a peek.  If you’re going to note the race of potential jurors, do it for all jurors, not just the minorities.  We typically use a spreadsheet with a column for race to make sure everyone is recorded.
  • Keep control of your notes.  It probably goes without saying, but you should keep close control of all your notes.  Don’t leave them lying around during the lunch break, and don’t throw them away in the courtroom trashcan.  Treat them as the privileged documents they are.
  • Appoint a Batson assistant.  If you have an associate or second chair helping you with the case, assign them to listen for and keep track of race-neutral reasons for excusing jurors.  You’ve got enough on your plate, and it’s always possible you’ll miss something important.
  • Go on the offensive.  Although it’s less common, we have observed attorneys use Batson to challenge strikes used against white jurors when it appears an attorney is systematically trying to load the jury with minorities.  At the very least, this can show plaintiff attorneys the race issue is a two-way street. 
We’ve helped attorneys select juries for hundreds of cases, and we are particularly adept at preparing for and navigating Batson challenges.  If you’d like our help choosing your next jury, contact Senior Vice President Claire Luna at or 714.754.1010.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Thursday, November 12, 2015

Juror Passions Can Foretell Leanings

Education, employment, marital status – all important data to know about your potential jurors, but it doesn’t necessarily tell you what they really care about.  We recently sat through a trial where one attorney mixed up the routine voir dire questions by asking jurors to talk about their passions.  The answers were fascinating, and ended up predicting juror leanings and leadership potential far better than a dry recitation of hard facts.

For example, the woman who meets weekly with her Jaguar car club had a significant amount of disposable income, and her conservative nature mixed with a fun, outgoing personality made her an easy choice for foreperson.  The marathon enthusiast was a strong believer in personal responsibility, so the plaintiff’s claims in this specific case annoyed him from the start.  The woman who volunteers at a battered women’s shelter had an empathetic personality, but also was less sympathetic to the plaintiff because her problems did not seem particularly troubling when compared to those of the women this juror typically sees.

In addition to learning about these jurors’ hobbies, it was also instructional to observe them as they discussed their passions.  When someone is engaged, you can often see a different side of their personality.  We could immediately sense who was going to be a leader and who would follow the group, as well as get an idea for what personalities might click with or grate on each other.

We understand not all judges will allow questions that go beyond the basics.  But if you can, we highly suggest digging deeper than straightforward demographic queries to learn more about what makes your jurors tick.  Because oftentimes, these things can provide helpful clues as to which way they will side on your case.

For more suggestions on beyond-the-basics voir dire questions, contact Senior Vice President Claire Luna at 714.754.1010 or

We’re excited to announce Jury Impact has moved offices. If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Wednesday, November 4, 2015

Low Income Could Mean High Awards

One of the major hot-button issues during this year’s presidential race is the perceived vast income inequality in the U.S.  Bernie Sanders’ platform is in large part based on his socialist ideals, while Democrats and Republicans debate whether there should be a flat tax versus a higher tax for the wealthy.  This debate splits voters right down the middle, and we’ve noticed how differences between those at the top income bracket and those at the bottom can directly shape opinions in the courtroom.

We’ve worked with more than 7,000 participants during our 12 years of experience conducting focus groups and found jurors whose annual household income is less than $25,000 are 1.3 times more likely to find in favor of the plaintiff than those whose annual household income is $75,000 or more.  We’ve also observed these plaintiff-oriented jurors are more willing to spike damages, including some outliers who award incomprehensible amounts.  On more than one occasion, we’ve heard jurors recommend awarding plaintiffs an eye-popping $1 billion. 

Although a small number of jurors treat awards like “monopoly money,” the majority of low-income jurors’ decisions to award damages are rooted in their plaintiff-friendly ideals.  For instance, our data shows those whose annual household income is less than $25,000 are more likely to believe corporations should be punished more harshly than individuals.  Low-income individuals are also more willing to take lawyer’s fees into account when deciding how much to award and are more likely to award extra money to “take care of” an injured plaintiff “just in case.”

These facts can add up to troublesome awards from a defense perspective, but the perception of “fairness” can work in your favor.  Low-income jurors are also more likely to decide a case based on what’s fair rather than the letter of the law.  Therefore, it is important to ensure you counter the plaintiff’s award in terms of fairness.  Clearly explain the reasons behind your damages number so jurors have an understanding that the defense isn’t “lowballing” – it’s suggesting fair and reasonable compensation based on facts about life expectancy and previous medical costs.

Although replicating the sympathy factor present at trial during focus groups can be tough and there’s no way to definitively predict how anyone – including low-income jurors – will respond in the courtroom, examining the reasoning behind jurors’ awards can help.  Please contact Senior Vice President Claire Luna at 714.754.1010 or if you’d like assistance learning what factors jurors in your jurisdiction believe are important.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Wednesday, October 28, 2015

Make A Point Everyone Understands

A picture may be worth a thousand words, but it’s only effective if it uses the right words.  As we have said before in this space, visual aids can be a key way to communicate information at trial.  But an infographic or visual that you think clearly communicates with jurors may not be as comprehensible as you think.

Pew Research recently conducted a survey asking respondents about their knowledge on several science questions.  The list included a scatterplot graph showing the correlation between sugar consumption and decayed teeth.   Only 63 percent of Americans could read the graph correctly.  This issue became even more apparent when the data was broken down by education – only half of those with a high school education or less understood the graph. 

Having a visual aid is only helpful if the jury understands it.  The majority of your jury pool isn’t likely to be composed of college graduates (where eight out of 10 could decipher the scatterplot correctly), increasing the chance your visual will fly right over their heads.  We’ve outlined some helpful tips to ensure your graphics are effective and simple to understand for all your jurors:

Simplicity is Key – Limit the amount of information you include on a visual aid.  You don’t want to overwhelm your jurors with 10 different points of information on a graph where important information can get lost in the shuffle.  Instead, use just a handful of bullet points.  If you’re using a graph to illustrate a relationship, limit it to a relationship between two or three points.  

Highlight the Main Point of the Graphic – Outlining a specific bar in a bar chart or using a different color for a particular point in a timeline will help to place your point in the context of the whole story, allowing jurors to focus on your message.

Explain Your Visual Aid – It may seem obvious to some, but you’d be surprised at the presentations we’ve seen where speakers leave their chart open to interpretation.  Clearly explain what each aspect of the visual aid means and how it relates to your overall story.

Plan Your Presentation Without Graphics – Not only is this helpful in case technology goes awry in the courtroom, but it also sets the precedent that your visual aids are there to enhance your message, not tell it for you.  Write your presentation without the use of the graphic and see if it still makes sense.

Getting a message across during trial can seem difficult, but the use of effective visual aids can help, especially if everyone on your jury can understand them.  If you would like help developing clear and effective trial demonstratives, please contact Senior Vice President Claire Luna and 714.754.1010 or

Wednesday, October 21, 2015

Crafting an Effective Story

This holiday movie season brings with it some of our favorite franchise stories and characters of all time.  Batman faces off against Superman to protect the world in Dawn of Justice.  Katniss Everdeen prepares for the final battle against President Snow and the Capitol in Mockingjay Part 2.  And Luke, Leia and Han reunite 30 years after the Battle of Endor in The Force Awakens.  These stories endure because people care deeply for the characters and long to see what happens in the classic battle between good and evil.

As trial attorneys, you certainly wish jurors would enter the courtroom with the same enthusiasm they have when they enter the theater showing the latest blockbuster.  Here are some tips to help you develop an interesting story to keep your jurors interested and invested in your client’s story:

Characters – Good stories start with good characters.  In your story, your main characters are the plaintiff and defendant, and your supporting cast members are your witnesses.  Your job is to bring your characters to life so the jury can better understand their motivations.  It’s your job to explain who they are, where they came from, why they made the decisions they made and why your jurors should trust them (or not).

Setting – Setting provides the anchor for your story by giving jurors context.  If your story has many significant dates and times, your jurors will thank you for creating a timeline to help them organize the information.  Additionally, we all love picture books, and if it makes sense to include pictures of the setting, doing so will help jurors visualize the story.  Both of these small acts will also help you establish credibility.

Plot – The plot is the driving force behind your story.  Skilled writers start with a good theme and weave their facts around it.  Instead of seeking to change your jurors’ core values, you should develop a theme that fits within their preconceived definitions of fairness and justice.  Remember to keep your plot points simple and well organized without immersing your jurors in too much detail – your job is to try the case, not your jurors’ patience.  Revisit your theme when you question witnesses and introduce new facts.  Repetition will keep your message fresh in jurors' minds.
Conflict – You should address the conflict of your story as early as possible by telling jurors the claims against your client and how you intend to prove he or she acted reasonably.  We suggest using opening statements as an opportunity to precondition jurors to the unfavorable points in your case.  Owning the conflict in your story shows jurors you’re confident you will overcome it.

Resolution of conflict – It is important for jurors to know how they can make your story right.  Think of this as the “Choose Your Own Adventure” aspect of the story, in that jurors can choose how justice will be carried out.  Once again, you should reinforce your theme and advise jurors that a ruling in your favor is the only way traditional notions of justice can be reached.

Storytelling is an art form, and we understand the challenges of telling the right story.  If you need help developing or telling your story, contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, October 14, 2015

With Witnesses, Focus on the Big Picture First

We’ve found that when prepping a witness for trial or deposition, many attorneys jump right into the medical records, corporate documents, employment files or other minutiae.

It’s understandable, because these are the documents you use to build your case – but we believe it’s misguided.  We believe it’s first necessary to focus on the big-picture themes that form the bedrock of your case, and only delve into the details when the witness has internalized the bigger ideas.

From our perspective, the first and most important goal of a prep session should be to formulate the witness’ message safeground – an idea (or two or three) that encapsulates the witness’ message to the jury and serves as a lens through which the witness can view the details.  Keeping the message safeground in mind allows the witness to see how the details fit into the bigger theme of the case.

What the message safeground is not is a rote statement for the witness to repeat ad nauseum.  Instead, a witness should keep the message safeground in the back of his or her mind and consider how each detail to be covered during testimony relates to that theme.  This results in testimony that is both consistent and supports your broader theme of the case.

We’ve prepped hundreds of witnesses of all types through the years, and the message safeground is just one aspect of the successful process we’ve developed.  If you have a witness that could use our help, contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, October 7, 2015

Get to Know Your Jurisdiction

We have long believed learning as much as possible about your trial jurisdiction is an important but often overlooked part of the trial preparation process.  This may seem obvious if the jurisdiction is a county or state that is unfamiliar to you, but we believe it is equally true even if you’re in your home jurisdiction where you’ve tried dozens of cases.

Just because we live and work in a place doesn’t mean we always know everything about it. People tend to associate with others like themselves, so we may not be exposed to those in our own communities who see the world differently than we do.  These disparate worldviews can and often do affect how jurors will see a case.

It is also true that times change, and any given jurisdiction may not be the same as it was 20, 10 or even five years ago.  For example, a gay plaintiff might have had a hard time getting a fair shake in some jurisdictions a decade or two ago, but that might not be true any more for many of those same jurisdictions.

Similarly, demographic trends – such as an increasing number of Hispanics in many parts of the country or young, affluent people flocking to inner cities – can impact the composition and attitudes of a potential jury pool.

There are also case-specific factors you should consider as you assess your jurisdiction.  For example, we’ve noticed that even extremely conservative, predominantly white jurisdictions have become more receptive to police brutality and wrongful conviction lawsuits as these issues have been front and center in the news during the past couple of years.  Similarly, media attention to the issue of “pill mills” and prescription drug abuse has affected how many people see the use of narcotics in medicine, and these perceptions and attitudes can impact how jurors assess a doctor’s care.

The point is, there are myriad demographic and sociographic factors at play in any given jurisdiction and for any given case.  No matter how much experience you have in a place, we believe it is worth exploring the attitudes in your jurisdiction and how they might affect perspectives on your case.

There are many ways to do this, of course, but one way is through Jury Impact’s community surveys.  We work with the client to craft a customized survey and then field it to a representative sample of your jurisdiction using proprietary technology developed by our sister company, MFour Mobile Research

Through a community survey, we can explore attitudes about everything from the reputation of a hospital or company to thoughts about a relevant hot-button issue.  It can provide an incredible amount of intel – useful during voir dire during every trial in a jurisdiction – for a relatively modest investment.

We’d be happy to walk you through our community surveys and what they can offer you. To find out more, contact Senior Vice President Claire Luna at or 714.754.1010.