They Can’t All Be LeBron: Reluctant Jurors Could Make or Break Your Case

The Internet was abuzz recently with stories about basketball superstar LeBron James and Sen. John McCain reporting for jury duty in their hometowns.  Both men said they were glad to do their civic duty (though neither was selected for a trial).

Unfortunately, the odds are any jury pool you face will have members who are not as civic-minded as LeBron and Sen. McCain – and some might be downright resentful about being there.  How you handle these reluctant jurors during jury selection and trial (if they’re seated) could have a significant impact on whether you win or lose.

The numbers confirm what you already know – many potential jurors just don’t want to be there.  A nationwide survey we conducted recently found that 54 percent of respondents said they would be happy to serve on a jury, 36 percent said they would fulfill their obligation only grudgingly and the remaining 10 percent would refuse to serve. 

That means between one-third and one-half of your empaneled jury might be unhappy to be selected.  A Pennsylvania woman recently was so angry upon getting selected that she cursed as she was walking to the jury box – and was promptly dismissed and fined $500 by the judge.  Just last week, when we were assisting with jury selection in a case that ended up settling at the last minute, a woman refused to mail her questionnaire and instead sent an angry letter – and a copy of her Xanax prescription – accusing the court system of causing her anxiety levels to shoot through the roof.

There is even a whole article on the web site WikiHow about how to get out of jury duty, ranging from the routine (claim financial hardship) to the novel (refuse to take the oath to decide the case based only on the facts presented in court).

So what’s a lawyer to do?  Through our years of helping choose juries and monitoring trials, we’ve assembled the following recommendations for dealing with reluctant or hostile jurors:

• An angry juror is nobody’s friend – Jurors who are angry about being selected are unpredictable, and their attitude could poison the panel.  Even if you think that juror might be likely to support your side, we recommend letting the juror go if you can.
• Don’t be the one the angry juror blames – Reluctant jurors usually say things they hope will get them excused, such as professing bias.  You may be tempted to rehabilitate a juror you think would likely support you, but that juror will likely blame you – and your client – for his inconvenience.  If a juror is sending clear signs of a bad attitude, just let him go.
• Don’t waste jurors’ time – Let jurors know you want to be respectful of their time.  Don’t use an hour for your opening if 40 minutes will do.  Don’t waste time with jokes or small talk with witnesses.  Don’t object ad nauseum just because you can.
• Shorten your case if you can – Attorneys often feel the need to have as many experts testify at trial as the opposition, but we encourage you to use as only many as you need and avoid repetitive testimony.  More is not always better.

A final note – beware as well of potential jurors jumping out of their seats with eagerness to serve.  A juror who really wants to be on your jury might really have a secret axe to grind, so it’s worth looking deeper into their motivations.

If you’d like our advice on what jurors might be best for your case and how to streamline your courtroom presentation, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net. 

Jurors Expect High-Tech Perfection in This Age of Technology Marvels

A person’s entire criminal history available at the touch of a button.  Surveillance video footage recorded around the clock – and kept for perpetuity.  Medical records from multiple facilities in multiple states consolidated into one easy-to-review chart accessible by any caregiver who treats that patient.

These are the kinds of unrealistic expectations jurors have in this era of James Bond, smartphones and Mission Impossible, and trying to normalize whatever technology is available at your facility can further antagonize jurors who insist the failure to implement whatever key system they think you should have is negligence in itself. 

During focus groups for a recent case, jurors faulted a company because its background check on a potential employee – who later committed a crime at the workplace – failed to uncover previous arrests that jurors believed were a “red flag.”  Nearly all jurors agreed an adequate background check “should have” discovered this information, despite the fact many arrests don’t lead to convictions and aren’t reported to the databases used for background checks. 

Similarly, jurors in a medical malpractice case faulted a hospital for not knowing about a patient’s previous medical condition (even though the patient and his family failed to disclose it to caregivers).  These jurors erroneously believed caregivers could have used some mythical centralized database to access all of the patient’s medical records throughout his entire lifetime.

In both of these cases, jurors’ unrealistic expectations of information technology led them to believe defendants could and should have known things they had no way of knowing. 

In other cases, these high expectations can help the defense.  In one recent case, jurors faulted a parent for not bringing her child to the hospital soon enough when she started displaying symptoms they believed the mother should have recognized as dangerous – if she had “just Googled it.”  In an era when there is so much information at our fingertips, jurors often expect plaintiffs to take the step of looking something up on the Internet or even emailing their doctor to ask a question. 

Whether you’re representing a plaintiff or defendant, we believe it is important to address with the jury the capabilities and limitations of information technology.  You may even need to rely on experts to educate jurors about how systems work and what they are and are not capable of.  Whatever you do, you can’t assume jurors’ expectations are grounded in reality – not when movies and television are establishing the technology baseline, and those expectations are being reinforced by how much information actually is available at their fingertips.

If you’d like our perspective on how to manage juror expectations in your case, we’d be happy to help.  Contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

We want to hear from you

All of our observations about jurors and trials come while working side by side with our clients.  Now, we’d like to open this space up to you.  Have a question you’d like our take on?  Fire away, and we’ll print the question (anonymously if you wish) and our answer in an issue of this newsletter.  Have you run across an interesting issue or made an observation you think your colleagues might like to hear about?  Send it along and we’ll share it with our readers.  Don’t be shy – we want to hear from you!  Email us at cluna@juryimpact.net.

During Trial, You’re Never Off Stage

We heard a funny story recently about a personal-injury plaintiff who lost his case because a juror saw him running across the street in the morning before court when he supposedly could only walk with a cane.  It’s the kind of courtroom gold lawyers hope to find when they hire a private detective to tail someone from the other side. 

But it’s worth remembering these revelations can go both ways, and jurors are watching the lawyers during trial as closely as they’re watching the parties.  Once you leave your house to head to the courtroom that first day of trial, you’re never off stage.

Case in point: One of the best trial lawyers we know told us about the time he tried a case out of state against local counsel and brought his suitcase into the courtroom because he had a flight to catch.  Opposing counsel spotted the offending luggage and later accused him of being a carpetbagger right in front of the jury.  Our friend won that trial, but he hasn’t brought his luggage to court since.

Of course, every lawyer worth his salt knows all eyes are on him once he sets foot in the courtroom, or even in the hallway outside.  But what about in the parking lot?  You might want to think twice about cutting someone off for a parking space in the courthouse lot, because that person could be your foreman.  And it would be a good idea to lay off the gas pedal since it could be a juror you’re tailgating.

These days, you’ve got the virtual world to worry about as well.  A survey we conducted last year found 72 percent of jury-eligible Americans believe it is acceptable for empaneled jurors to do Internet research related to a case they are hearing, and you and your associates’ Facebook profiles could very well be among their destinations. 

You’ve likely counseled the younger lawyers in your office not to post pictures of themselves partying or behaving poorly to the public part of their Facebook profiles – and if you haven’t, you should – but have you thought about the impression jurors could take away from a photo of you and your brand-new sailboat on vacation in the Bahamas?  If you’ve made a lot of money through your work, good for you – but jurors don’t need to know that.  Your best bet is to set your profile (including your profile photos!) to “private” so inquisitive jurors have nothing to find.

The same goes for your clients – tell them to make sure their Facebook profiles and other social media are set to “private,” and ask them to drive the family minivan to court rather than the Tesla.  You never know who’s watching and what their biases are.

You may not even realize what information about you and your clients is there for the world – and jurors – to see.  If you’d like us to conduct a social media audit and help you put your best foot forward ahead of your next trial, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

Define the Narrative – Before Jurors Do it For You

During a recent focus group session, plaintiff-leaning participants explained their verdicts by citing three primary arguments – each concise, clear and based on nearly bulletproof logic.  The problem?  The plaintiffs themselves weren’t actually making any of these arguments.

Despite repeatedly pointing this out to jurors, we saw the same arguments surface throughout the three-hour exercise.  Because jurors viewed the plaintiff’s causation theory as complicated and somewhat disjointed, those intent on giving money to the severely injured child quickly came up with their own criticisms that better fit within the narrative they believed the plaintiff’s case should be.

Without revealing case specifics, jurors viewed the situation as a classic “missed diagnosis” case with doctors who failed to “dig deeper” to uncover a rare, underlying disease in time to prevent injury.  The problem is, the plaintiff’s experts weren’t arguing that the defendant doctors should have diagnosed this incredibly rare disorder – they were only arguing that these caregivers should have “followed up more” with the patient’s primary care doctors regarding additional testing – an argument many jurors found tenuous at best.  

During many research sessions on an array of cases, we have observed this same juror tendency to come up with their own narrative – especially when the actual criticisms and/or defense storylines are unclear or vague – highlighting the importance of establishing from early on not only what a case is about, but also what is isn’t about.

In this case, based on the research findings from Group One, from the outset of the second session we laid out the basic plaintiff and defense arguments for jurors, and also established the issues neither side was arguing, leading to a more streamlined discussion and, ultimately, a more defense-oriented group.

Regardless of the type of case, before heading to trial it’s crucial to first understand how jurors view the case on its face, and what kind of narrative they naturally gravitate toward.  That way, your team has the opportunity to explain to trial jurors what the case is not about, what it is actually about and the specific arguments being made, and what jurors are truly there to decide.  If you’d like our advice on how best to develop your specific trial message, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.