Some recent media attention has focused on attorneys and trial consultants who use Google and Facebook during voir dire to learn more about prospective jurors. The Wall Street Journal and Reuters recently ran pieces discussing the practice and both articles describe instances where trial consultants and attorneys discovered information online that influenced the use of their peremptory challenges. Beyond legitimate concerns about jurors’ privacy, how effective are online searches for juror information? Both articles describe the kinds of information that might be found online, including the jurors’ favorite TV shows, their hobbies and activities, and their opinions as expressed on... Continue reading

Attorneys and trial consultants are understandably interested in any information on how best to persuade jurors and obtain the best possible outcomes for their clients. While tips and hints for success are certainly helpful, just as valuable can be examples of what not to do. In their recent Hofstra Law Review article on the poor performance of two attorneys in a personal injury trial, Bruce Green and Karen Bergreen use their experience as jurors to generate a great list of “don’ts” for any litigator. Both Green and Bergreen are experienced legal professionals. Green is a law professor and Bergreen is... Continue reading

Nancy Marder has published an interesting new article about allowing jurors to ask questions of witnesses during trial. Juror questions, along with other jury reforms such as note-taking and simplification of legal instructions, are intended to improve jurors’ comprehension of the evidence and the law, in the hopes that justice will be better served. While Marder argues in favor of expanding the use of juror questions, attorneys must be prepared for how questions from the jury might affect the case story the attorney is trying to tell. Thirty states currently allow jurors to ask questions of witnesses during trial, although... Continue reading

Several recent high-profile trials, including Rod Blagojevich’s corruption trial and the murder trial of Oakland police officer Johannes Mehserle, have featured video- and audio-taped evidence of the alleged crimes. In the case of former Illinois governor Blagojevich, an audio tape of a telephone conversation appears to record the then-governor discussing ways to profit financially from his power to name the successor to Barak Obama’s vacant Senate seat. In the case of Mehserle, cell phone video footage shows the officer draw his sidearm and shoot Oscar Grant, who was lying face-down on a train platform at the time of the shooting.... Continue reading

At a recent Continuing Legal Education seminar on trial strategy, I was asked a question I’ve heard several times in the past. The attorney wanted to know what tips I could offer for getting jurors to like the trial attorneys. In mock trials and post-trial juror interviews, jurors consistently praise the same attorney characteristics. For example, jurors tend to appreciate brevity in the attorney’s presentations, professionalism and a calm demeanor in court, and clarity of purpose in the attorney’s questioning of the witnesses. In other words, jurors usually like attorneys who get to the point quickly and clearly and with... Continue reading

When people find out that I’m a jury consultant, they often ask for tips on getting out of jury duty. I usually tell them that there a two fairly certain ways of getting out of jury duty, but then I explain why they’d be very fortunate if they got to serve on a jury. First of all, avoiding jury duty is not hard. While ignoring a jury summons is illegal and I would not advise anyone to break the law, very few venues enforce the laws requiring citizens to return their jury summons. So if you get a summons in... Continue reading

Toyota’s troubles with defective accelerator pedals have attracted a great deal of media attention. While the idea of cars racing wildly out of control makes for dramatic imagery, sudden acceleration is an extremely rare event. Only a handful of lawsuits have alleged that Toyota’s accelerator problems led to an accident. While these lawsuits are certainly serious, they are similar to the cases all major automakers face on a regular basis. Toyota’s much bigger legal challenge will come from “diminution in value” class action lawsuits. Diminution in value claims against Toyota will probably go something like this: • The bad publicity... Continue reading

This week, the Supreme Court handed down a per curium opinion in the case of Thaler v. Haynes. Thaler is the latest in a string of decisions concerning limits on the use of peremptory challenges during jury selection. The first of these decisions was Batson v. Kentucky (1986) which sought to eliminate the use of race-based peremptory challenges. Under Batson, an attorney can no longer strike racial minorities from the jury unless the attorney can provide a “race neutral” explanation for the strike. Among the many criticisms of Batson are that it is vague and difficult to enforce. Indeed, over... Continue reading

Defense attorneys are understandably interested in strategies for minimizing damages awards. Jeri Kagel recently wrote a good article on defense strategies for addressing plaintiffs’ damages claims. Kagel points out that any damages strategy will depend a great deal on the specifics of the case, but also makes several good points about how best to address this sensitive topic. In short, defense attorneys should not shy away from talking to the jury directly and confidently about damages. Defense attorneys have legitimate concerns about arguing over damages. If done incorrectly, disputing the plaintiff’s dollar requests can make the defense seem insensitive, or... Continue reading

Time Magazine and several blogs have recently written about the problem of jurors doing Internet research on the trials they have been charged to decide. Jurors’ Internet research, as well as their writings on blogs and social networking websites, has led to several so-called "Google mistrials". As a result, courts across the country are looking for new ways to prevent jurors from improperly using information technology. The most common response to this problem has been to include new jury instructions at the beginning of the trial. Wisconsin is among several states that have adopted jury instructions that specifically warn jurors... Continue reading

Over the past few years, there has been a great deal of commentary about differences between the generations in American society. According to this literature, members of the Baby Boom, Gen X and Gen Y (or Millennials) have unique attributes and tendencies that differentiate them from members of the other generations. The generations are most often contrasted in terms of their attitudes toward the government, their feelings about work and family, and their use of information technology. Some have gone so far as to say that generational differences play an important part in the way jurors perceive the evidence presented... Continue reading

A common misconception among attorneys and their clients is that only multi-million dollar lawsuits justify the expense of hiring a jury consultant. This would be true if the only services provided by jury consultants were expensive mock trials. But in fact, many consultants have expanded their practices to include not only comprehensive mock trial research activities, but also very affordable services that can help attorneys prepare for cases of any size. Attorneys no longer need a five- or six-figure jury research budget to be able to add an experienced jury consultant to their trial team. Here are a few examples... Continue reading

Melissa Gomez has a good article in the new edition of The Jury Expert on using mock trials to gauge potential damages awards. She shows that damages estimates drawn from mock trials can be used in several ways to help make settlement decisions. I agree with her completely that measuring likely damages should be a central part of any mock trial. The information gained about mock jurors’ views on damages can provide defendants with important guidance on deciding whether to settle a case or to take it to trial. However, in many types of litigation, the decision whether to settle... Continue reading

One of the most difficult parts of preparing for trial is writing an opening statement. Condensing thousands of pages of documents, dozens of hours of deposition testimony and numerous expert witness reports into a clear, concise summary is a daunting challenge for even the most experienced litigator. Adding to the challenge is the fact that an opening statement can do much more than simply present a “snapshot” or outline of the case. The opening statement is a critical part of a successful trial strategy because it can affect the way jurors perceive the entire trial. To understand the potential power... Continue reading

Barbara Rich Bushell wrote an interesting article on identifying jury leaders for the most recent edition of The Jury Expert. In her article, Bushell argues that jury leaders can have a powerful influence on the deliberation process and, by extension, on the outcome of a trial. She sees identifying jury leaders during voir dire as an important part of a winning trial strategy. Because her theoretical approach to jury deliberations differs from mine, her article made me re-visit my own views on the subject. When selecting a jury or helping attorneys develop a strategy, I don’t place much importance on... Continue reading

The popularity of The Jury Expert, a publication of the American Society of Trial Consultants, continues its meteoric rise since its on-line debut less than 18 months ago. In that time, readership at TJE has increased more than twenty-fold. The most recent edition includes an article I wrote on defense strategy in complex civil cases. The point I try to make in the article is that case presentations are most effective when they tell juries (or arbitrators, mediators or judges as the case may be) a complete story, rather than focusing on what appear to be the one or two... Continue reading