Jury Selection in Mattapan Massacre Case

Starting in the summer of 2012, I was retained by attorney John Amabile to assist him with jury related issues in the retrial of Dwayne Moore, accused of killing four people and seriously wounding a fifth in a drug-related shooting in Mattapan, Massachusetts (a neighborhood of Boston). One of the victims was a two-year old boy and the victims were marched outside naked before they were shot, execution-style. Needless to say, the case engendered an enormous amount of publicity.

One of the initial co-defendants cut a deal with the district attorney's office, in return for his testimony. This man, Kimani Washington, testified at the initial trial, in February of 2012, that he had left the scene before the shooting started and pointed the finger at Dwayne Moore. The jury in the initial trial hung with respect to the murder charges against Moore (11-1 as it happened), resulting in a mistrial. Mr. Moore was retried starting in October, 2012.

Given the emotionally charged and continuing media coverage of the case, Mr. Amabile was able to successfully move the Court to award funds to cover the cost of a jury consultant to assist with jury selection and other matters. With Judge Locke's order, Mr. Amabile was in a position to pay me with funds from the Committee for Public Counsel Services (CPCS).

The case was fascinating in many respects. Between the two trials, Marcus Hurd, the lone surviving victim, claimed to have experienced an epiphany with respect to his ability to identify the shooter (He had not done so at the first trial). There was a hearing about this, where his former fiancee contradicted his testimony about being able to make an ID. The judge ultimately allowed him to testify about this at court, but then the D.A. opted not to ask him to do so. We successfully moved for a change of venue to escape the Boston media market, so Judge Locke decided to select a jury from Worcester County (which turned out very much NOT to be outside the Boston media market) and bus the jurors to Boston every day for trial. We successfully petitioned the court for individualized, sequestered voir dire, as well as a supplemental juror questionnaire (SJQ) to be completed by every prospective juror. As a result, the jury pool was questioned to a degree probably unprecedented in the criminal courts of the Commonwealth of Massachusetts. Jury selection took two weeks.

In early January, I was interviewed by Corine Claxton, the co-host of Mass Law Radio (MassLawRadio.org and @MassLawRadio), which airs weekly on WCUW in Worcester (WCUW.org), about my participation in the Mattapan Massacre case. The 1 hour interview has been divided into two parts, that aired on January 18th and 25th respectively. It was a wide-ranging discussion of juror psychology, deliberation dynamics, handling pretrial publicity, the role of a jury consultant, the effects of racial diversity in criminal cases and many other topics.

Listen to Part 1 of the interview by going to http://masslawradio.org/mattapan-massacre-murder-1/.

Will Wonders Never Cease?

Jury Consulting in Criminal Cases

Traditionally, only a select few criminal defendants have employed jury consultants. Those who have typically fall into three distinct categories.

1) Really rich people and celebrities (who are usually really rich). These folks can afford to hire the most expensive lawyers and also pay for a variety of trial support services. If ever you needed proof that jury consulting is valuable, pay close attention to the fact that every criminal defendant who can pay for it does pay for it.

2) Accused murderers facing the death penalty. Because judges receognize that the stakes are very high in capital cases, as well as the particular stress on jury selection created by the death qualification process, public funds are most likely to be awarded for jury consulting services in these cases. The presumption is that the jury consultant will be used exclusively for jury selection (now that change of venue motions have become essentially hopeless).

3) White collar criminal defendants. OK. This is really a subset of the really rich people, but the issues are different enough to warrant its own category. Unlike the washed-up actor who strangles his girlfriend, the corporate accountant accused of cooking the books is facing a trial that feels somewhat more like a civil trial. The case revolves around money and common business practices. The victims are often also rich and generally no violence was involved. Defendants in these cases tend to employ jury consultants for a variety of services, from thematic development to witness prep to pretrial jury research to jury selection.

What about the Little Guy?

But what about the people who could use our help the most? What about the indigent criminal defendant with an overworked, underpaid and inexperienced and/or jaded public defender? Do these folks use jury consulting services? Well, the answer used to be a resounding "no" but the landscape is changing.

Despite the wording of the Massachusetts statute regarding the allocation of funds for trial support services, which authorizes funding whenever a similarly situated non-indigent defendant would be willing to pay for the service, the Massachusetts courts have been loathe to even consider paying for jury consulting services. Part of this reluctance stems from the way in which such funds are allocated in Massachusetts. Most public defenders are actually "bar advocates," private attorneys who sign up to get assigned cases involving indigent criminal defendants. The state agency that oversees this process, the Committee for Public Counsel Services (CPCS) has a budget, but no authority to spend any of it on trial services. Each attorney must petition the court for the authorization to hire a psychologist, investigator or expert witness. Given the very modest budget for CPCS, combined with the fact that no judge knows how other judges are spending the money, the judiciary as a whole tends to be very stingy for all but obviously necessary expenses.

As I reported in this blog a few years ago, the attorneys for Neil Entwistle, whose case received non-stop pretrial publicity for months leading up to trial, petitioned the court for $1,000 for help from a jury consultant in crafting voir dire questions. The judge denied the request without argument or comment. The default position is clearly, "No dice!"

The good news is that the dam is starting to crack. Over the past few years, attorneys have successfully petitioned the court for small sums of money to retain my services. I lowered my hourly rate very dramatically in order to increase the likelihood that such petitions might have a chance. Recently, I accepted a position with TrialGraphix, a large, national litigation consulting firm. I could no longer work the CPCS cases for peanuts. While management at TrialGraphix was willing to let me work these criminal cases at a substantial discount, a court was going to have to authorize real money to pay for my services.

Recently, I was approached by an attorney concerning a criminal matter for an indigent defendant. I explained that he would have to submit his motion with my new hourly rate. In addition, the case is very complicated and the attorney needed help with several jury-related matters. So, he was going to have to ask for a pretty hefty sum -- several times more than the court had ever awarded me before. We held our breath -- and the judge said "OK."

Perhaps the judiciary is finally becoming enlightened with respect to the difficulties confronted by those facing jury trials for serious criminal charges. Maybe the judge wanted to cover himself against a possible appeal. Maybe I have now developed enough of a track record that judges take these motions seriously. Whatever the reason, I can now say to anyone representing an indigent criminal defendant in Massachusetts, "Don't assume that you can't hire a jury consultant to help you." The door has been opened; it's time to walk through it.

What the Future May Hold

I am less familiar with how funds are allocated for jury consulting services in other states. I know that most states have real public defender offices, with discretionary (although small) budgets. In such a system, court approval is not required to pay for support services. Massachusetts is moving in this direction, which might provide further momentum for these efforts.

I have worked for the Federal Public Defenders Office in Boston and they only require internal authorization to pay for my services. I bill them just like a regular law firm. I can only hope that the CPCS system will evolve into something closer to this model.

A criminal defense attorney whose motion for funds for jury consulting services has been denied need not despair. I have written in this blog many times about the Pro Bono Initiative of the American Society of Trial Consultants (ASTC). I remain the Chair of our Pro Bono Committee and we are more committed than ever to making jury consulting services available to those representing clients of limited means.

Earlier this month, I connected a non-profit legal aid organization in Chicago with a ASTC member consultant to help with thematic development and jury selection. When it was determined that they needed help with graphics and video editing, we found another ASTC member to help with that. So, if you need help, please don't hesitate to contact me or visit the Pro Bono Committee's homepage.

Exciting News!

Dear Followers of the The Jury Box,

It is with great excitement and anticipation that I write today to tell you all that I have recently accepted a position with TrialGraphix, the nation's premier full-service litigation consulting firm. The company website can be found at trialgraphix.com.

TrialGraphix, as its name would imply, is known for unparalleled design and execution of courtroom graphics and animation. Many of you know my views on the importance of visual learning among jurors, so I am thrilled to be associated with a firm at the cutting edge of that field. Now, I can not only make recommendations to my clients about demonstratives, but I can offer those clients the talent and resources at TrialGraphix to make those demonstratives come to life.

TrialGraphix is also at the forefront of trial technology, providing the expertise and technical solutions for any litigator's courtroom needs.

Of particular interest to me -- and you, too, I hope -- is TrialGraphix's long track record as one of the country's most respected jury consulting firms. One reason I agreed to join TrialGraphix is the tremendous respect I have for the jury consultants who are already there. I can't wait to work with them and to introduce them all to you.

For those of you who have worked with me in the past, rest assured that I remain committed to serving the needs of my existing clients. I will be running the jury consulting practice in the New York City office, which is a big change for me, but I will be in Boston often. This position provides me with the best of both worlds: the opportunity to continue to serve my New England clients and the potential to help future clients all over the country.

Since I have subscribers to the Jury Box from all over the country (and even other parts of the world), I want you to know that there is probably a TrialGraphix office near you. The company has offices is San Francisco, Los Angeles, Chicago, Houston, Minneapolis, Miami, Washington and New York. By all means, feel free to contact me directly with any jury issues that come up, but know that we have experience working in every state.

I plan to continue to publish the Jury Box Blog in much the way I have always done so. I apologize for the recent dearth of posts, but I have been quite busy preparing for my new job. I expect that the logo will change to reflect my association with TrialGraphix, but otherwise it will remain pretty much as is. I hope to get some of my new colleagues to contribute guest posts for time to time, especially in the courtroom graphics and trial technology fields.

Thank you all for your continued support of the Jury Box Blog and, by all means, look me up the next time you are in The Big Apple!

-Edward

What's brewing with Tea Party Jurors?

But What About my Needs?

Back in the fall, I was running focus group research in an undisclosed location, in preparation for an undisclosed case, scheduled for an undisclosed trial date. (See how I did that? I just made my completely mundane case seem much more interesting by refusing to tell you anything about it.) Truth be told, the case details are irrelevant for the purposes of this post, except for the fact that it involves a consumer protection dispute.

I always have my focus group participants complete an extensive written questionnaire before the study begins. Think of the supplemental juror questionnaire (SJQ) you'd use if you were arguing your case before a really enlightened, curious and slightly whimsical judge. It's kind of like that. The general information section contains pretty standard stuff about occupation and home ownership, mixed in with the usual pot porri of inquiries about tattoos and home schooling.

As I was finishing up the questions for this section, I noticed I had some white space before the next section on "Experience with the Legal System," so I decided to add another question. "What do you think of the Tea Party Movement?" Mostly, I was curious about what people would be willing to write down about something that had engendered so much anger, confusion, frustration and passion in the general public.

I consider myself a pretty astute student of politics. I did teach in the Government Department at Harvard for ten years. I watch the Daily Show every night. I have RealPolitics.com bookmarked on my browser. But I have to admit that the Tea Party Movement has me stumped. It is easy to be really cynical about this group, blanketing them with a categorical label of "Angry Whackos." Such a characterization, however, would be dismissive of the very real appeal that the movement has for a lot of people. There has to be a "there" there; or, at least something that actually unites the people who identify themselves as Tea Party supporters.

From a professional perspective, it is even more important for us to get a handle on what is driving the decision-making of Tea Party sympathizers. Tea Partiers are active in politics. They register to vote and go to rallies, so we should expect them to show up for jury duty when summoned.

This begs the question: What will Tea Partiers do in the jury box?

Hell hath no fury like a Tea Partier Scorned

On the surface, a typical tea party juror looks pretty good for the defense. They tend to believe in personal responsibility. They are more likely than your average respondent to think that there is a torts crisis and that frivolous law suits pose a real problem. Tea Partiers object to many entitlement programs and believe that too many Americans expect a free hand-out at every turn.

At our study in October, we had one such participant. Let's call her Sally (not her real name). In response to the Tea Party question, Sally had written, "Actually, I think they're great!" During an early part of the study, when I had the moderator pose hypothetical scenarios to the group, to see how they perceived situations similar to what we faced at trial, Sally rolled her eyes at one point, saying, "Oh, she'll probably pick up the phone and call her lawyer. That's what's wrong with America. Everyone immediately thinks about suing somebody when anything goes wrong." At this point, Sally sure seemed like a good defense juror.

The problem with the Tea Party paradigm, however, is its profound inconsistency and hypocrisy. What seems to unite Tea Party supporters is a profound lack of empathy for people unlike themselves, along with an almost hysterical need to have their own grievances heard and attended to. As such, when contemplating a Tea Party supporter as a juror, it is absolutely critical to gather a great deal of information about that person's life to make sure that your case doesn't push any of their hot buttons.

Turns out Sally had a hot button. WIthout giving away too much about the case, let's say that it involves a relatively minor nuisance which the federal government had seen fit to penalize with extremely high mandatory civil penalties. As such, a thriving cottage industry has popped up of attorneys whose entire practice is to cobble together plaintiffs and sue under this one statute. After spending hours bemoaning the litigiousness of American society, Sally and her fellow respondents were finally introduced to the facts of our little case.

Well, wouldn't you know it, Sally had actually experienced the same problem as the plaintiffs in our case. Ironically, Sally had hired one of the companies who had inconvenienced her in violation of the statute and had been quite pleased with their work. Despite her prior rantings against suing in similar circumstances, and chiding from fellow respondents about the inconsistency of her position, Sally wanted to hang the defendants by their thumbs and drive them out of business. Sally constructed an entire fantasy about exactly how the defendant company operated, in order to justify her position that they, unlike the companies in the hypotheticals she had just finished discussing, deserved the most punitive treatment available.

Normally, this kind of argument would hold little sway with other jurors. The problem we faced in this case is that no-one else on the panel had any personal experience with the circumstances surrounding the case. So, while most subjects could easily dismiss Sally's arguments as convoluted, several were willing to defer to her on the grounds that she had relevant experience they did not. That is, Sally was a self-professed expert and that was enough for them.

Tea for Two

I found my experience with Sally profoundly troubling. Many commentators have discussed the erosion of empathy, civil discourse and reason-based argument in America over the past fifteen years. Clearly, this transition was manifesting itself in jury rooms, as well as campaign trails and voting booths. So, my Tea Party question became standard for all of my jury research. Just a simple question, "What do you think of the Tea Party movement?"

Just this past month, I ran a multi-panel focus group study for a case involving one of Boston's many universities. Again, without going into details about the case, I will divulge that the main witness for the defense was a very smart professor at the university. What makes this case potentially problematic, from a defense perspective, is that it is quite complicated and involves inner workings of a university with which most jurors will be quite unfamiliar. As such, the defense team wanted to make sure it could do a good job of getting jurors to actually understand how things work and who has responsibility for what.

We presented our treatment to the respondents and were pleased to see that, for the most part, they "got it." That is, we had done a good job of conveying a lot of esoteric and complicated information in a way that ordinary people could understand. As it turned out, however, we weren't out of the woods. There were two respondents who had decided that the university was not only wrong, but also evil and malicious. One of them wanted the university officials to be criminally prosecuted.

Reviewing their initial questionnaires, I didn't find any real red flags. They both have degrees from local colleges, although not particularly good ones. One is a payroll manager and the other is a "self-employed" ticket broker and "public speaker." The payroll manager, however, answered the Tea Party question, "They have some important ideas." I decided to dig a little deeper.

Both of these respondents listed Fox News as a major source for news coverage. They also both read The Herald, and not The Globe. In addition, our ticket broker is from Revere and the payroll manager is from Winthrop. These are two blue-collar, mostly white, communities north of Boston. They are also the only two towns in Suffolk County that went for Scott Brown in his Senatorial contest with MA Attorney General Martha Coakley. While Ms. Coakley won 70% of the vote in Boston, she won 46% and 44% in Revere and Winthrop, respectively. Confirming Senator Brown's appeal among blue-collar white voters, the only parts of Boston he won were South Boston, West Roxbury and the majority white neighborhoods of Dorchester.

One mainstay of the Tea Party movement and the Fox News propaganda is a rabid anti-intellectualism. They regularly vilify East Coast Liberal Elites and preach adherence to faith over science. Followers of this dogma are trained to be inherently suspicious of major research universities. Such universities are the homes of those perpetrating the global warming hoax and foisting evolution on unsuspecting school children who should be taught only creationism. In short, a professor at a major Boston university is immediately and automatically suspect, regardless of what he or she has to say.

Always Dig Deeper

In addition to asking about preferred sources for news, I ask respondents to tell me about social media usage. Our ticket broker has a Twitter account. He doesn't tweet much, but he did post extremely religious messages on Christmas. He follows both Scott Brown and Fox News on Twitter. In short, he is a Christian Conservative living within a stone's throw of Boston.

There were fewer overt signs of political preference for our payroll manager. I did, however, pull up her LinkedIn profile. After many years at the same company, she changed jobs last June. She lasted only six months at the new company and only found work at a third firm after a few months without a job. While we will never know exactly what happened that caused her to leave her new job after such a short stint, it is not hard to imagine that she had some sort of negative experience working there. Because Tea Party sympathizers weight so heavily their own experiences and concerns, her extreme negative reaction to our case might have been triggered by her own lingering hostility towards her last employer. They are a big corporation and a university is a big corporation.

Our ticket broker is obviously struggling to make ends meet. He has a college degree and thinks of himself as very intelligent and articulate. He would raise his voice to be heard and was the one participant who regularly cut people off or spoke over them. He had all the characteristics of an inferiority complex and could reliably be counted on to disparage the testimony of some fancy-pants professor.

Handling Tea Partiers During Voir Dire

If you practice in a jurisdiction with real attorney-conducted voir dire and/or regular use of supplemental juror questionnaires, you can probably tease out the tea party supporters. You can ask them questions about their experiences and make sure they have no negative associations with the topic of your case.

Life is much trickier in a jurisdiction with limited voir dire. Standard practice in Massachusetts, for example, is for the judge to ask all the questions, with limited input on question content from the attorneys. The main round of questioning is done as a group in open court, so all of the questions must be phrased to accommodate yes or no answers. The judge decides how deeply to dig into any topics at sidebar for any subsequent individualized voir dire and the lawyers are not permitted to speak directly to any of the prospective jurors.

One byproduct of this arrangement is that judges typically ask extremely direct and pointed questions, but not ones that a student of juror psychology would suggest. A Massachusetts judge would never ask a prospective juror about her views on the Tea Party unless the case were specifically about something a Tea Party leader had done. So, in a world of limited voir dire, it is very difficult to explore these tracers for attitudinal tendencies. And, without attorney-conducted voir dire, it is pretty much impossible to get information about attitudes directly. In short, we're screwed.

In the case involving the local university, we will try to use the demographic information to our advantage. We will keep an eye out for blue collar, white jurors, without major university credentials, from pro-Scott Brown communities. This is, unfortunately, a third-order proxy for what we really want to know about these people, but it is the best we can do in such a low information environment.

My main advice for anyone facing the prospect of Tea Party followers in the jury pool is to be extremely careful to identify them and gather as much information as possible. My experience is that such individuals can be unpredictable and capricious. Equally important, they like to talk and believe that what they have to say is profoundly important. One characteristic that seems to be shared by many Tea Party adherents is sense that their voice is not being heard by those in power. They are loud, persistent and desperate to be heard. As such, you must anticipate that a tea party juror will be an active juror, a persistent juror, and an incalcitrant juror. You had better know in advance exactly what they want and what their hot button issues are. If you don't I recommend that you burn a peremptory strike and move along to the next person in the box.

Facing the Fearful Jury: Terror Management Theory in the Courtroom

A few years ago, a collection of scholars at Harvard realized that there existed a great deal of psychological, neurological and sociological research on human cognition and behavior with profound implications for the practice of law. In order to explore these implications in a systematic way, they started the Harvard Project on Law and Mind Sciences, (PLMS) housed at Harvard Law School.

The founders launched several initiatives at once. They established The Situationalist, a blog devoted to the intersection of mind sciences and legal institutions. Rather than having the blog written by the same person all the time, The Situationalist invites contributions from dozens of scholars from all over. The result is an ecclectic and fascinating overview of exciting developments in this field.

PLMS has also run four conferences exploring psychological aspects of the law. The 2011 conference focused on causes and consequences of inequality. The 2010 conference dealt with the heavy-duty challenge of what, if anything, neuroscience can tell us about morality.

There is also a student group, The Student Association for Law and Mind Sciences (SALMS), which publishes its own blog and also sponsors a speaker series at the Law School. These talks, which are open to the public, cover a fascinating and diverse set of topics. The Fall schedule is now posted on the SALMS website.

I have the honor of delivering the first presentation of this semester. My talk, entitled "Facing the Fearful Jury: Terror Management Theory in the Courtroom," will be on Tuesday, September 13, at Noon, in 101 Pound Hall at Harvard Law School. The presentation, including time for questions, will last about one hour.

For those of you who are curious about what exactly Terror Management Theory (TMT) is, I would point you to two resources. First, there is an excellent review article, by Lieberman and Arndt, in The Jury Expert, the online journal of the American Society of Trial Consultants (ASTC). Second, you can review an earlier posting to The Jury Box Blog about the arrest of Tarek Mehanna, a pharmacist from Sudbury, MA who faces trial this fall on terrorism-related charges. In that earlier blog post, I anticipated that Terror Management Theory would have a lot to do with how this case would ultimately be resolved. As the eve of trial approaches, I will return to Mehanna's case during my upcoming talk.

It will have escaped the attention of few of you that my talk falls very near to the 10th anniversary of 9/11. This is no accident, in that the SALMS organizers have made a concerted effort to use this year's speaker series to reflect on the consequences of that fateful day for how we think, feel and react to the law. I know that we all remember where we were on that morning. As it so happens, I was sitting in Bill Eskridge's Civil Procedure class at Yale Law School, in a classroom not-so-different from the one where I will be giving my presentation 3654 days later. I know that those events affect me psychologically -- emotionally -- even today. Imagine what must go through the minds of jurors who are forced to face those fears head-on while deciding the fate of someone accused of plotting new terrorist acts. And so we have TMT in a nutshell.

I hope that those of you who are local will join me for what should be a very interesting discussion on Tuesday. For those who cannot attend, I will be sure to post here, and on my Twitter Feed, where one can watch the recorded talk online, once it is posted.

An Oldie but a Goodie: Tips for Voir Dire

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.

Enjoy!

Indirect Questions Reap Most Information in 

Oral Voir Dire 

By Edward P. Schwartz 

October 9, 2006 

In my last column, I discussed many of the advantages of using a 

supplemental juror questionnaire as part of jury selection – the primary 

advantage being that jurors tend to be more truthful in their responses on a 

written form than they are when questioned orally in open court.  

But the written form – at least in courts that allow traditional voir dire – should 

only be seen as a supplement to oral questioning conducted in both a group and 

an individualized setting.  

Group voir dire 

By necessity, group voir dire questions are typically framed as “yes or no” 

inquiries. Jurors are asked to raise their hands if they answer any question in the 

affirmative. Each party notes who raised a hand in response to each question 

and then follows up with questions either in open court, at sidebar or in the 

judge’s chambers, depending on the court’s prevailing practices. 

My first word of advice is not to expect to learn very much from group voir 

dire. The need to ask “yes or no” questions, coupled with the public setting, 

conspire to limit how much information you can get from potential jurors. The 

studies cited in my last column all reveal that jurors lie during group voir dire – a 

lot. Most of these lies stem from an unwillingness to volunteer information about 

private and/or sensitive subjects. 

My second bit of advice is to treat group voir dire as an entrée into 

individualized voir dire. The more often a juror raises her hand, the more 

individual questions she will have to answer. Since these follow-up questions are 

where the action is, craft your group voir dire questions in a way that prompts as 

many people to respond as possible. Instead of asking whether “you or a loved- 

one has ever been a party in a law suit,” ask whether “you know anyone who has 

participated in a lawsuit.” Many panel members will construe a question as 

narrowly as possible in order to avoid raising their hand and setting themselves 

up for additional questions.   

Ask each juror whether he or she has ever been in a courthouse before. 

Almost everyone has been at some point or another. Whether it concerns traffic 

court, small claims court or family court, you should try to learn something about 

each juror’s experience with the legal system.  

Try to keep your list of group voir dire questions short. The jurors don’t want 

to raise their hands anyway. The longer the process lasts, the less inclined 

anyone will be to volunteer information.  

I recently consulted on a trial for which the group voir dire lasted 1½ hours. 

For the last 10 minutes, not a single juror raised his or her hand. Fortunately, the 

questions from my team had been asked at the beginning. 

Some jurors are forthcoming, while others won’t raise their hands unless they 

absolutely have to. These jurors can slip through voir dire because questions are 

almost always phrased so that it is the jurors who raise their hands who are 

asked additional questions. To avoid this, I recommend that you phrase some of 

your questions so that it is the jurors who don’t raise their hands who are subject 

to individualized voir dire. So instead of asking, “Who has a relative who works in 

the health field?,” ask “Who doesn’t have a relative who works in the health 

field?” Even if the voir dire will be conducted entirely by the judge, try requesting 

that the judge mix it up in this way. 

Finally, it is a complete waste of time to ask jurors directly whether there is 

anything that would prevent them from being impartial in the case. Most people 

who answer affirmatively are just trying to get out of jury duty. The people whose 

biases are really a source of concern are rarely self-aware enough to recognize 

the problem. Finally, such questions are usually so poorly worded, and cluttered 

with negatives and dependant clauses, that jurors can’t decipher them in time to 

volunteer a response. 

Individual voir dire 

A good question in a written juror questionnaire typically does not make a 

good voir dire question. The main reason is that while people hate to write, they 

love to talk. An open-ended question on a written questionnaire is an invitation to 

leave a blank space. As I discuss in my last column, multiple-choice and sliding- 

scale questions are preferable on a written form.  

But in oral voir dire, open-ended questions provide an opportunity for jurors to 

tell you who they really are. The goal is to get potential jurors to want to tell you 

about themselves in their own words. 

Don’t ask leading or challenging questions. If you try to put words in jurors’ 

mouths, they will either repeat them back to you or clam up, depending on 

whether they like what you are saying on their behalf. So, if you ask a juror what 

she thinks about the “torts crisis” in America, she will either tell you that she 

thinks it is a “crisis” or that she doesn’t have much of an opinion about it. Such a 

question will not get her to tell you about her own experience (or those of her 

friends and family) with the civil justice system, which is what you really want to 

learn about.  

Instead, ask the juror about the most interesting court case she has ever 

heard about. What case she chooses, along with her take on the outcome, will be 

much more informative than some canned response about “fairness” or “justice.” 

Prospective jurors will instinctively try to figure out why a lawyer is asking a 

particular question. The more sensitive the topic – and the more the question 

reflects the fundamental controversy of the case – the more likely a juror is to try 

to “game” the process. One way to avoid this is to ask jurors to tell stories about 

themselves, as I mention above. Another is to ask questions about topics that 

proxy well for what you are really interested in.  

For example, I recently worked on a case involving the purchase of a firearm 

by someone who was mentally ill. We wanted to learn whether jurors were 

sensitive to the plight of people facing mental challenges and whether they 

believed society is responsible for keeping such people safe.  

To get at these attitudes, we asked a very open-ended question about each 

juror’s recollection of the Columbine tragedy. If a juror did not offer an opinion on 

her own about who was responsible, we followed up with a question about the 

juror’s initial thoughts about who was to blame.  

Some jurors blamed only the shooters. Others expressed frustration with the 

parents. A few articulated the position that everyone (parents, school, 

government, media, etc.) has a responsibility to look out for the well-being of our 

children. The jurors were generally willing to talk about Columbine because it did 

not have a direct bearing on our case. 

Another ripe area to explore is people’s relations with those close to them. 

People love to talk about their children. Rather than ask prospective jurors about 

religious preferences, ask where their kids go to school. To get a sense of how a 

juror feels about people in different professions, ask what their children want to 

be when they grow up. If one answers, “Joey, my 6-year-old, wants to be a 

policeman,” you can follow up with, “How do you and your wife feel about that?” 

A person whose son is on the debate team or who plays in the orchestra is likely 

to have different attitudes than one whose son plays on the football team and has 

joined ROTC. A person who is self-conscious about their own life can still be 

expansive about her children; use this to your advantage. 

There is another advantage to “asking around the topic.” If the other side has 

not thought through the voir dire process as thoroughly, the jurors’ responses will 

be more useful to you than they will be to your opponents. 

Be Prepared for any jury 

I have devoted the last two columns to jury selection strategies. I don’t want 

you to get the idea, however, that choosing a jury is the only, or even the most 

important, opportunity for you to improve your chances of winning at trial. As I 

always tell my clients, in terms of impact on verdict choice, who the jurors are is 

almost always swamped by what the jurors see. By all means, do all you can to 

identify and strike jurors who really will be unfair to your client; but, make sure to 

concentrate  your energy and resources on presenting your case in its most 

favorable light. 

Heat, Humidity and Trial Consulting: What Services Lawyers Use Where

What we've learned so far

To review, I posted a short survey about trial and graphics consultant usage by trial attorneys. I encourage those who have not yet taken the survey to check it out here. In my previous two posts (Post 1, Post 2), I reviewed some general trends in the data. While the number of respondents (42) precludes any concrete conclusions, the data are at least suggestive.

More experienced attorneys were more likely to report having used trial consulting and graphics consulting services at some point in their careers. This is not surprising since a lawyer who has tried a large number of cases is likely to have run across at least one along the way that warranted the hiring of a jury expert or graphics professional. In addition, litigants in high-stakes cases, where the hiring of outside consultants seems most likely, typically choose to place their cases in the hands of experienced litigators. Similarly, large firms generally assign their largest cases to their most experienced lawyers.

The second major finding is that civil defense attorneys are more likely to hire trial and graphics consultants than are their colleagues who handle plaintiffs' cases. Many of the criminal defense attorneys who participated in the survey reported having used a trial consultant, but this result is likely skewed by the large number of them who had taken advantage of my Pro Bono services. Many fewer of them reported having employed a graphics consultant.

Who Wants What When?

I was not surprised that civil defense attorneys were the primary consumers of trial consulting services. They typically have an insurance company bankrolling litigation and are more likely to have corporate clients. So, the deep-pocket, repeat-player litigants tend to be on the defense side of the ledger. 

I also expected to find that civil defense attorneys used a different mix of trial consulting services than did their plaintiff counterparts. This was not born out by the data. Consider the following graph. You can click on any graph to view it much larger.

Because civil defense attorneys make up such a large fraction of my sample, these absolute numbers are a bit deceiving. To correct for this, I converted these data into percentage of the relevant sample. The reconfigured graph is below.

Those plaintiff attorneys who reported using trial consulting services were just as likely to report running mock trials (a big ticket item) as were civil defense attorneys. One possibility is that once the stakes cross a critical threshold, a plaintiff attorney thinks just like a defense lawyer. That is, there is an "all or nothing" mentality to trial consultant usage. The other possibility is that many plaintiffs' attorneys are unaware that trial consultants provide a suite of inexpensive services, as well as conducting large pre-trial research projects. That is, a plaintiff attorney might know that she can hire a consultant to run a mock trial for $30,000, but she might not know that she can hire one to help draft voir dire questions for $1,000. This is a question for further study.

Note the frequent usage of both case evaluation and jury selection services by criminal defense attorneys. This is, once again, the product of this category of respondents being dominated by attorneys who have received pro bono assistance from me, which has taken the form of case evaluations and jury selection help. It remains an open question whether these are the services most often employed by criminal defense attorneys more generally.

Where is all the action?

When breaking the sample into regions, things got a bit dicey. With only a few dozen lawyers completing the survey, it was simply not possible to sensibly explore which regions' litigators used precisely which services. I did look into using only civil defense attorneys to investigate regional differences, but what few trends emerged mirrored those present in the full sample. I illustrate below trial and graphic consultant usage by region, without attention paid to specific services.

In considering these graphs, it is important to keep in mind the mix of attorneys represented in each region. The West, Mideast and South regions are comprised of 1/2 to 2/3 civil defense attorneys. The New England region sample is dominated by criminal defense attorneys and only contains two civil defense attorneys. The Midwest sample is entirely civl defense attorneys.

With all these caveats, are there any comparisons to be made, at all? Well, it is instructive to look at the responses of attorneys in the Mideast and South regions. The sample sizes are comparable, as are the distributions across legal specialties. Note, however, how much more likely a lawyer from the Mideast region is to report that she had never used either a trial or graphics consultant. There is one young lawyer from New York who reported extremely high usage rates for both trial and graphics services, as well as a strange mix of case types. If one drops this observation as unreliable, the differences between the two regions become even more pronounced.

Anecdotally, I know Florida, Georgia and Texas to be hotbeds of trial consultant activity. There are, however, several trial consulting firms with offices in the tri-state region (near New York City). As such, I am a bit surprised by these dramatic differences.

What next?

I designed this little survey to gather some preliminary information and motivate further study. I think that it has served to accomplish that task. I know that the Research Committee of the American Society of Trial Consultants has plans to conduct a broader and deeper study of these issues in the near future. To that end, if you have suggestions for questions to ask, lawyers groups to approach for participation or groups that would be interested in the results, please let me know. I will forward along all correspondence to the Research Committee.

While a data dude at heart, I know the value of qualitative research, too. So, if you have any questions about this survey or comments about my analysis, please do get in touch. Tell me your story. Share your concerns.

In the meantime, I will leave the survey open for further respondents. If I get enough additional data, I'll post an update here on my blog.

To those of you who took the time to complete the survey, "Thanks very much for your help."

-Edward

Trial Consultant Usage All Over the Map

The Survey at a Glance

Several weeks ago, I was in conversation with a colleague about the different approaches taken by various lawyers with respect to using trial consulting services. Some lawyers don't see any use for our expertise, or believe that their clients just can't afford to use us. Some lawyers employ the occasional consultant to run jury research, but really want a project manager more than an expert in jury behavior. There are many lawyers who will call in a trial consultant for the occasional case when she experiences uncertainty regarding a particular jury issue. Finally, there are a handful of lawyers who work with a trial consultant on virtually every case, finding their expertise to be well-worth the investment.

I commented, rather off-handedly, that I thought there were probably lots of regional differences. I think that differences in procedural rules (e.g. attorney conducted voir dire, ad damnum usage) and legal culture result in their being jurisdictions where litigators make great use of trial consulting services and others where attorneys rarely hire trial consultants.

I soon realized that this was a testable hypothesis. So, I went off to SurveyMonkey.com and crafted a short survey to investigate which litigators hire trial consultants (and courtroom graphics consultants) and which ones don't. I included questions about how long each respondent has been a lawyer, what kind of cases she handles, and where her office is located.

The survey is still live and I will be analyzing the data long into the future. So, if you are a trial lawyer, and you have not yet filled out the survey, please do so here. It only takes about 2 minutes and it is completely anonymous.

Spreading the Word

As many of you know, I am extremely active on LinkedIn. I posted a notice about the survey as a discussion on many of the groups to which I belong. I also tweeted an invitation to participate on several occasions. Finally, I sent out an email to everyone on my professional distribution list (formerly used for my newsletter, before it became this blog). I would conservatively estimate that at least one invitation to participate was seen by over 500 litigators.

Well, I wasn't offering to pay respondents. I wasn't raffling off an iPod or a timeshare in Maui. Lawyers are used to billing clients for every 6 minutes of their time and they are extremely sensitive to concerns about online privacy. So, the response rate was not great.

As of today, 37 people have completed the survey. Of these, 5 indicated that they were not lawyers (although a few might work for law firms in some other capacity). 28 of the respondents indicated that they heard about the survey on LinkedIn. 8 found out through email, and 1 via Twitter. Needless to say, any conclusions to be drawn from such a small sample will be speculative in nature. I do hope, however, that the results will give us something to build upon in the future.

Preliminary Results: Trial Consulting

I was careful in the survey to differentiate between "Trial Consulting" services, which deal with the social psychology of jury behavior (jury selection, witness preparation, focus group studies, etc.) and "Trial Graphics" services, which include illustrations and animations for courtroom use. Here is a graph illustrating the frequency with which survey respondents employ "Trial Consulting" services, in terms of percentage of cases.

Trial Consulting Service Usage: Full Sample

As you can see from the figure, very few attorneys indicated that they used trial consultants for more than 20% of their cases. The interesting distinction here seems to be between those litigators who sometimes use trial consultants and those that never do. For my sample, approximately 60% of respondents indicated they had ever used a trial consultant. 

There are a couple of reasons to be skeptical of these numbers. First, I would expect that participating in the survey would be more interesting to those lawyers with some familiarity with trial consulting. As such, I thought that most of the respondents would be lawyers who had worked with trial consultants in the past. Second, the publication of the survey was heavily skewed towards people who know me in some capacity. Of those, I would expect that my clients would be particularly inclined to help me out by filling out the survey. (Based on zip codes and other survey responses, I am fairly sure that about a half-dozen respondents are, in fact, clients of mine.) In light of these factors, I believe that these results probably overestimate trial consultant usage in the general population.

I am located in Massachusetts and most of my clients are from New England. This is reflected in the large number of respondents from this region (9). That said, it is gratifying to see that the remainder of the respondents come from all over the United States. I will be discussing regional variations in the data in my next post.

Preliminary Results: Graphics Consulting

I am what I refer to as a "behavioral" trial consultant. While I advise clients on the kinds of exhibits they might employ at trial, and evaluate the utility of the graphs and illustrations they already have, I do not provide trial graphics services. As such, the responses with respect to graphics consulting are probably less skewed by the participation of my own clients. The graph below shows graphics consulting usage for the complete sample.

Graphics Consulting Service Usage: Full Sample

About half of the survey's respondents have used a graphics consultant for at least one case. I think that most of us would expect trial graphics to be used more frequently than trial consulting. The discrepancy between this expectation and my data undoubtedly arises from the participation of many of my clients. Several of these attorneys, especially those doing criminal defense work, have benefitted from my active pro bono practice. They have not had similar access to affordable trial graphics assistance.

Do the Same Lawyers use Both Services?

As I mention above, there is reason to believe that at least a handful of attorneys would make use of trial consulting services, but not graphics consulting ones. Is this a common occurrence? The graph below answers this question.

Joint Usage of Trial and Graphics Consulting Services

As a general rule, lawyers either use litigation consulting services of both types, or they don't use either. Only a few litigators reported using graphics consultants but not trial consultants. I find this result a bit surprising. While I did not ask respondents about the size of their firms, I would expect that this sample is heavily weighted towards small and mid-sized firms, whose attorneys tend to be heavier users of LinkedIn. Lawyers from large firms (many hundreds of lawyers) are unlikely to have found their way to my survey. Such firms handle huge IP and business litigation cases, in which courtroom exhibits are sophisticated and plentiful. The underrepresentation of such litigators from my sample have certainly affected the nature of my results.

Questions to be Explored

These preliminary results are certainly interesting. We have responses from many attorneys who have used a trial or graphics consultant to help with jury trials. Who are they? What kind of work do they do? Where do they practice? These are the more nuanced questions that I will be addressing in my next two posts.

In addition to surveying experience with consultants, I asked respondents about which kinds of services they had hired consultants to perform. I provided an extensive list, including jury selection, witness preparation, illustrations, animations and more. I will explore in a future post trends in the data, with respect to which trial lawyers made use of which services.

So, stay tuned! Same Bat-time, same Bat-channel.

And remember, it's not too late to contribute your own experience to the data. Take the survey here.