Judges: The Fix Is In

If the jury doesn’t get it right, the judge will fix it.  That seems to be the mentality behind some of the grossly inflated jury awards we have observed through the years, that there is a mechanism in place to "correct" inappropriate verdicts and keep jurors in check.  It’s not an illogical assumption, since judges can and do overturn or throw out verdicts.  Earlier this month, a judge struck down a $7.1 million discrimination verdict against former Los Angeles Times sports columnist T.J. Simers, ruling there was insufficient evidence to support his claims.  Given this seems to be a finding for the jury to make, especially if the case was able to get past the summary judgment stage, coverage of the judge’s ability to make this ruling will likely feed the public’s misconception that judges can overrule an erroneous jury award. Just two years ago, one of our own national surveys showed 78 percent of jury-eligible respondents throughout the country believe that if the case makes it to trial, they would assume the plaintiff’s side of the case has at least some merit.  We have explored this in more detail during our focus groups and learned many jurors believe there is some sort of legal body or process that evaluates cases prior to trial, and if a lawsuit gets to the courtroom, someone somewhere has determined it’s probably worth something. During voir dire, it is crucial to learn which of your potential jurors share these beliefs in order to even the playing field.  Otherwise, the plaintiff is clearly going to enjoy some advantages going in to the process.  Further, jurors need to understand there is no "checks and balances" process that will automatically reverse or alter their verdict if it’s not the "right" one, and thus their decision should be based on reason. If you are interested in evaluating how these fallacies can be more thoroughly explored during voir dire, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

"Making a Murderer" and Your Jury

Following on the heels of last year’s hit real-crime podcast Serial, Netflix appears to have a home run with its documentary series Making a Murderer.  For those who haven’t binge-watched the 10-hour series, it focuses on a Wisconsin man falsely convicted of rape who served 18 years in prison and was exonerated and released – then was charged with murder two years later under what many would call questionable circumstances. It’s addictive television.  But it also taps into what is emerging as part of our cultural zeitgeist: mistrust of police and other institutions. In the wake of highly publicized police shootings in Ferguson, Staten Island and North Charleston, among other places, a Gallup poll in June found only 52 percent of Americans expressed "a great deal" or "quite a lot" of confidence in police – the lowest percentage during the 22 years Gallup has been asking the question.  Only 23 percent of respondents have "a great deal" or "quite a lot" of confidence in the criminal justice system, only slightly higher than the percentage that trust TV news. In the litigation world, the implications for civil rights cases are clear.  With public trust in police and the criminal justice system on the decline, we have found during our focus group research that many jurors – even those we would otherwise consider conservative – are quick to believe plaintiff claims of being mistreated or railroaded by police and prosecutors.  When even Fox News spends valuable screen time debating Making a Murderer and covering police shootings, it should come as no surprise that many laypeople have begun to question the infallibility of law enforcement. From our perspective, the litigation ramifications go beyond civil rights cases.  Gallup has documented that trust in most institutions, including big business and medical systems, has declined in recent years, which may make jurors more receptive to claims against "institutions" including hospitals and Fortune 500 companies.   So what’s a lawyer to do?  There’s no changing the climate of the times, but you can try to identify during voir dire those jurors most likely to be suspicious of and hostile to institutions.  The Gallup poll found Democrats and racial minorities were most likely to hold such views, but – as noted earlier – these attitudes can cross political and racial lines.  Asking jurors about their views of institutions such as the criminal justice system, big business, the media and healthcare companies can help identify those who might be most hostile to your client. And perhaps it goes without saying, but you’d be wise to take a critical look at potential jurors who have recently viewed Making a Murderer. If you have a case where you think anti-institutional bias might come into play, we can help you figure out how best to mitigate that issue.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Thoughts On Jury Duty

From Todd Fairbanks, Vice President of Research

I was recently called to federal jury duty in downtown Los Angeles, and after two postponements due to a busy travel schedule, I showed up in person to explain why a pre-planned business trip to the Midwest would once again preclude me from serving.  (Yes, even jury consultants get called for jury duty, and no, we don’t automatically get stricken for cause.)

Since federal cases typically summon jurors from a much wider geographic area, some in the venire drove from as far as 80 miles away (in L.A. traffic, that one-way trip takes approximately five weeks).  To top things off, El Niño had started with a vengeance, lengthening commutes and explaining the haggard, exasperated faces all around me.  The mood was tense.

This general malaise is something we and our clients often encounter during jury selection.  Based on this, the conventional wisdom states people in your venire don’t want to be there and think jury service is an inconvenient waste of time, which makes for indifferent, detached and even hostile jury panels.  And having helped select juries for trials across the country, and having heard the ridiculous excuses employed to try to get out of jury service, I can see why that is a common perception. 

Furthermore, poor show rates for jury duty seem to back this up.  For example, according to a 2015 San Francisco Chronicle article, “About one-fifth of Californians in the state’s most populous counties fail to respond to a summons for jury service…”.  The article goes on to say things are particularly bad in Ventura County, where the no-show rate is an alarming 45 percent.

However, the article doesn’t focus on the jurors who do actually show up, and their level of engagement and willingness to participate in this fundamental aspect of being a U.S. citizen.  Although it’s true most jurors could think of something they would rather be doing than serving on a three-week trial, another way to look at it is that most of the jurors who brave traffic, weather and inconvenience to arrive at the courtroom do want to be there, which can provide an advantage to the side that taps into this fundamental desire. 

Along these lines, we always recommend that prior to jury selection our clients specifically address the inconvenience of jury duty and how you and your trial team will respect jurors’ time and service by making things as concise as possible while ensuring they have all the information they need to make an informed decision.  Of course, it’s incumbent on counsel to do everything possible to follow through on that promise.

However, just because someone shows up to the courtroom (whether by fear of fine or imprisonment, or a genuine sense of civic duty), that doesn’t automatically mean they will be receptive to your story.  This stresses the importance of conducting pre-trial Internet and social media audits of your venire once the juror list becomes available to look for telltale signs of favorable and unfavorable jurors.  Even if the list is made available only moments before jury selection begins, our team is able to conduct online research and send pertinent findings to your trial team in real time.  This type of research is vitally important because it can uncover viewpoints, biases and negative experiences that might not otherwise surface during voir dire. We talk to more than a hundred jurors each and every month and have helped research and select jurors for dozens of trials, which gives us a unique sense of the qualities that make favorable and non-favorable jurors.  If you and your trial team could benefit from a fresh perspective when selecting a jury, please contact Senior Vice President Claire Luna (who has actually served on a jury, in Ventura County of all places) at 714.754.1010 or cluna@juryimpact.net.

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 cluna@juryimpact.net 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.

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 cluna@juryimpact.net.

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.

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 cluna@juryimpact.net 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.

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 cluna@juryimpact.net