What were those jurors thinking? Ask them.
Are there jurors you believe are always risky picks? Is there a strategy you used before, but now avoid? Attorneys often tell us about a type of juror they’ve been burned by or a strategy they used that jurors hated, but in most cases, those conclusions are based on the results of the trial—and on their feelings of uncertainty surrounding that juror or strategy. Rather than guessing about what went wrong or assuming you know which jurors were for/against you, we would recommend going straight to the source—the jurors. Although some judges balk at juror interviews, we would argue that their value makes it an issue that is well worth raising.
Making assumptions about jurors, strategies, and witnesses happens naturally and understandably. When you are trying a case, you view every aspect of that case—the jurors you want, how the case should be presented, how the evidence comes in—through the prism of your life and trial experiences. And when a verdict is reached, it is impossible to remove the filter borne of those experiences, including any doubts and uncertainties, when trying to decipher the verdict. So it’s easy to attribute a loss to that witness you were unsure about or a win to that juror you loved. But those attributions—while deeply held—may be completely inaccurate.
Unfortunately, such inaccurate attributions don’t simply color how you view cases in the past. They become integrated into your “trial filter” and begin to inform future trial decisions. As you try more cases, your speculative post-trial analyses start to have a cumulative effect: there is an ever-growing list of jurors you don’t trust, strategies you reject, and arguments you avoid. But there is no assurance that your trial choices are based on accurate information. Should all elementary school teachers really be avoided? Or was there something about that teacher’s life experience that made her resistant to your arguments? Did jurors really hate that witness you were so unsure about? Or did the case turn on a piece of evidence that you thought was insignificant?
Post-Trial Interviews answer those questions. They allow us to draw accurate conclusions about what went right/wrong and make sound adjustments to our strategy. And we have never done Post-Trial Interviews where we did not learn something unexpected and valuable. They provide insight into (1) what actually influenced the jury’s verdict, (2) how many/which jurors were receptive to your arguments, and (3) the tenor and dynamics of the deliberations. This is obviously helpful information if the trial team lost, but even with a win, you may find out that jurors responded to evidence you discounted and ignored evidence you were sure would sway them.
Post-Trial Interviews often inform your future trial techniques in more global ways as well. It is not uncommon to find out information about jurors that you would have loved to know during jury selection—which can lead to changes in how you phrase, order, and ask voir dire questions. And regularly, attorneys are surprised and irritated to learn that jurors seem to have no recollection or an improper recollection of the jury instructions that they were hanging their case on. Such juror revelations can lead to a better understanding of how jurors analyze and process information and what legal arguments they do/do not find meaningful.
It is natural to want to avoid things that have not worked for you in the past. But that inclination is only helpful if you are avoiding those things based on accurate information. So talk to that elementary school teacher before you decide that you find teachers risky as jurors. She may have been terrible for you…or she may have been the one person who kept damages in check.
______________________
Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.