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Thursday, October 11, 2007
A chance to improve your game
The value of post-verdict juror interviews
By Edward Schwartz
April 19, 2007
Although the most important work an attorney performs takes place before and
during the trial, litigators have an important opportunity to learn about their effectiveness
after the trial is over. Did the themes you chose to emphasize resonate with the jury? Did
the jurors find your witnesses credible? Did they understand the technical information
that was critical to your case? What can you do better next time?
The best way to answer these questions is to conduct post-verdict interviews with
jurors, a practice that is currently allowed in about a third of the federal courts and a
significant percentage of state courts.
The post-verdict interview responses will be most useful to a firm in the long run
if they can be aggregated and compared across cases over time. To this end, I would
recommend that your firm’s litigators jointly develop a standard set of interview
questions, as well as descriptive characteristics of the cases that will be kept on file. It
will, of course, be necessary to amend these standard questions with case-specific ones,
but uniformity in structure and response type (sliding scales, multiple choice, short
answer) is helpful.
The jurors’ verbal responses will likely be helpful for an immediate “post-
mortem” of your case, but they will be hard to compare and generalize down the road. As
such, it is important to develop a coding scheme for storing the data in a way that will
permit statistical analysis in the future. One example of such a system is to develop a list
of possible influences on the jury (opening arguments, exhibits, expert testimony, etc.)
and record how often each is mentioned by jurors in their responses. Another strategy is
to record how often certain “buzzwords” come up during the interviews (believable,
aggressive, nice, defensive, etc.)
While it might be most convenient for you to assemble the jury immediately after
the verdict to conduct interviews, this is rarely the best approach.
First, jurors are often eager to return to their families and jobs. They won’t be
most forthcoming with their time when they have already been away from their normal
lives for weeks. Second, it is wise to take a few days after the trial to decompress and
figure out what you really hope to learn. If you lost at trial, this also gives you some time
to cool down. Don’t chase jurors down the hallway after the verdict is read.
Finally, juror interviews are usually most illuminating when conducted
individually, rather than in a group setting. If a juror is uncomfortable with something
that happened in the jury room, she may be unwilling to share those feelings with the
others jurors present.
A good strategy is to let a few days go by before first contacting the jurors. Try to
schedule the actual interview within a couple of weeks of trial so the experience is still
fresh in the jurors’ minds. If possible, ask the judge to inform the jurors before dismissing
them that someone might be contacting them to discuss the case.
Most jurors are happy to discuss their experiences, provided that they are
approached in a respectful way. Be accommodating to the jurors’ schedules, keep the
interview short and tell them in advance how long it is likely to take. Make sure you
provide them with an opportunity to discuss their concerns, even if they don’t relate
directly to what you want to learn about the case.
In her initial instructions to the jury, the judge has undoubtedly emphasized the
enormous responsibility of jury service and expressed the court’s appreciation for the
jurors’ efforts. You should leverage this idea in speaking with jurors. You are providing
them with the opportunity to voice their opinions about the experience of serving on a
There are a few different ways to conduct post-verdict research.
The simplest and cheapest method is to ask jurors to complete a written
questionnaire. There is actually a lot to be said for a questionnaire if you want both
candor and easily coded results. It is difficult, however, to read nuance into a written
questionnaire and you can’t learn anything about topics you didn’t think to ask about.
A telephone interview allows for a somewhat more organic experience. Some
people feel more comfortable with the anonymity of a telephone call, as opposed to a
face-to-face interview. But it’s hard for an interviewer to read emotion or attitude into a
phone interview, so it might be difficult to know when to follow up. Many people are
only willing to talk on the phone for so long. They become tired, bored or distracted. As a
result, it might be preferable to conduct an interview in person. An interviewer can
develop a rapport with a subject if they meet in person. As trust grows, a juror can
become more expansive with her answers, increasing the yield of the interview.
In-person interviews can be conducted either in groups or individually. A group
interview feels a lot like a focus group session. One concern is the willingness of jurors to
be totally candid about deliberations in each other’s company. On the other hand, the
group discussion that sometimes develops can provide insights into the group dynamics
of the actual jury deliberations. If certain jurors speak up to answer most of the
researchers’ questions, those jurors probably dominated deliberations as well.
The final method of conducting post-verdict interviews is to meet with each juror
individually. This method provides the greatest flexibility in formulating questions and
adjusting the interview focus on the fly. Individual sessions also obviate the need to
reassemble the entire jury at the same time. On the other hand, this method can be quite
expensive, as many person hours are needed to conduct the actual interviews. This is
probably the method most likely to yield “secrets” about the jury deliberations. That is, a
juror is most likely to confide in the interviewer in the context of a private face-to-face
Who should do it?
The final question to be resolved is whether you should conduct the interviews
yourself or hire a consultant to do it. A large firm might find it cost-effective to develop
and administer interviews in-house, but most attorneys would benefit from hiring a trial
consulting firm to design, administer, code and analyze post-verdict interviews.
The less a lawyer is interested in the long-term value of the data collected (caring
only about what worked and didn’t in the present case), the more of this preparation and
analysis she can perform herself. Jurors might be reluctant to make negative comments
about trial strategy or presentation style if the trial attorney is conducting the interview
herself. If you are uncomfortable with the expense of hiring a consultant to conduct your
post-verdict interviews, you might consider asking another attorney in your firm to
conduct them for you.