Things That Make You Go Hmmm…March 2010

Unless you’re a superhero masquerading as an attorney, chances are telepathy isn’t among your abilities. Instead, you’re stuck divining jurors’ thoughts by monitoring body language or note-taking – and assuming feverish writing is related to your brilliant cross-examination, rather than a grocery list or screenplay pitch.

Fortunately, more and more courts are allowing jurors to submit written questions to witnesses following the attorneys’ examinations. These questions provide a much better gauge of juror leanings during trial by revealing what made sense to them, what did not, and what else they want to know.

Although some lawyers may prefer the “ignorance is bliss” approach to trial – learning what the jury was thinking only when the verdict is read and not before – we respectfully disagree.

As we have observed during our focus groups and mock trials, the ability to identify and answer questions from the outset prevents the dangerous juror tendency to make up their own answers based on potentially inaccurate, pre-existing knowledge. Pre-trial jury research can help to eliminate and address the majority of likely juror questions, and allowing jurors to submit questions during trial adds another layer of proactive protection from harmful juror assumptions.

During a recent trial, juror questions were eye-opening. After nearly four hours of expert testimony explaining the plaintiff’s causation theory, a high-priced, self-important expert witness received the following query: “So I don’t understand…what exactly is your theory on why the plaintiff was injured?”

With that one question, from arguably the most intelligent juror on the panel, the defense knew the plaintiff’s “star expert” explanation had failed to resonate, and, most importantly, that despite four days of testimony, jurors were still observing the plaintiff’s case with a highly critical eye.

So until your superpowers include mind-reading, encouraging the court to allow juror questions can be a great way to get into jurors’ heads and adjust your case accordingly – before they announce a verdict you don’t want to hear.

-Claire Luna