Trial lawyers often rely on their instincts and experience to determine which potential jurors might be good or bad for their case. However, research and post-trial jury interviews have shown that these instincts can often be misguided and false. Many attorneys have shared stories of jurors who turned out to be unexpectedly favorable or unfavorable to their case, proving that preconceived impressions about jurors can be unreliable.
For example, in one case, a male juror appeared to be supportive of a defense attorney throughout the trial, but ended up being the single holdout against her client during deliberations. In another case, a Hell's Angels biker with an eye patch ended up championing a chemical manufacturer's claim for payment from its insurer. These instances were not random occurrences, but rather the result of a logical theory about the case and the types of jurors who would accept or reject the trial team's reasoning.
To determine the potential biases of jurors, trial teams often conduct pretrial jury research with surrogate jurors. This research helps identify counterintuitive factors that may influence juror attitudes. For example, in a case involving injury from riding double on an ATV, jurors who admitted to doing the same thing were most critical of the plaintiffs, not the manufacturer defendant. They claimed that while they understood the risks, they still engaged in the behavior.
Different venues and fact patterns can yield opposite results, further emphasizing the need for research. In a patent infringement case, technically oriented jurors proved to be especially bad for an unknown patent owner suing for infringement against a technology giant. This was because these jurors appreciated "new bells and whistles" regardless of their origin, even if it meant supporting an infringer.
It is important to note that generic juror profiles, which tend to describe jurors in tort litigation, may not apply to every case. Without an empirically based profile, trial consultants can only consider if these profiles apply and make educated guesses about the kind of jury they want. However, relying solely on common sense and folklore can lead to striking the wrong jurors or keeping the worst ones.
In conclusion, trial lawyers and trial consultants should be cautious about relying solely on their instincts and experience when assessing jurors. Counterintuitive factors and individual case research are crucial in identifying potential juror biases and making informed decisions during jury selection.
The following are some aspects of a generic plaintiff juror profile:
- Less educated
- Overeducated, but underemployed
- Disgruntled/chip on shoulder/angry or depressed
- Disenfranchised/anti-establishment/ marginalized (“fringe”)
- “External locus of control” (i.e., victims/ blamers)
- Recent personal hardship/life stressors
- Emotional rather than cognitive deciders
- Little authority status socioeconomically
- Unstable employment history
- Recent loss of job
- House repossessed
- Divorced/separated/recently widowed
- Recent serious illness or hospitalization
- Volunteers/Charity work
Here are some aspects of a generic defense juror profile:
- Mainstream, conservative
- Some authority status
- Analytic rather than emotional/intuitive
- Few life stressors
- “Internal locus of control” (takes personal responsibility/control)
- Possibly management experience
- Long-term marriage
- Long-term employment
- Understand business
- Not experiencing financial hardship
- No recent personal hardship
- Better educated (college or more)
- Homeowner rather than renter
These profiles are seductive, and it would be nice to have an all-purpose set of guidelines to use and re-use for every case. However, since cases are not tried in a vacuum and different themes appeal to different people, deciding who your best consumers are can only be determined specifically and reliably by knowing the “product” you plan to sell and how people actually react to it.
In the complex arena of jury selection, relying solely on generic characteristics may not provide an accurate representation of potential jurors for a specific case. Jurors are individuals with their own unique experiences, beliefs, and biases. Therefore, it is crucial to consider the specific circumstances and dynamics of each case when assessing juror profiles.
For instance, in certain cases, the defendant may be perceived as the victim rather than the plaintiff. In such instances, the generic "plaintiff-oriented" profile, which describes jurors who favor victims, may actually align better with the characteristics of defense jurors. It is essential to remain open-minded and adaptable when developing juror profiles, as they may vary significantly depending on the case.
While traditional wisdom and experience can provide valuable insights, they should not be the sole basis for jury selection. Instead, trial lawyers and consultants can gather valuable information from actual jurors. Conducting post-trial interviews and utilizing juror feedback can offer valuable insights into how jurors think, what influences their decision-making process, and what factors may sway their opinions.
By collecting data from actual jurors and analyzing their responses, trial teams can gain a deep understanding of how potential jurors may react to the "product" they plan to present in court. This information can inform the development of more accurate and effective juror profiles, tailored specifically to the unique circumstances of each case.
In conclusion, while generic juror profiles can be alluring, they may not always apply to a specific case. The dynamics of each case, the themes presented, and the individual perspectives of jurors must be taken into account when assessing potential biases and making informed decisions during jury selection. By incorporating information from actual jurors and conducting diligent research, trial lawyers and consultants can increase their chances of selecting a favorable jury for their case.
A2L Consulting articles related to jury consulting, jury selection, mock bench trials and more:
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- FREE DOWNLOAD: How to choose a jury consultant and what works.
- 10 things every mock jury has said in 33 years
- 10 videos our jury consultants say all litigators must see
- 5 things EVERY jury needs from you
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