How to tap the potential of the juror questionnaire - part 2
Part 2 of 2
In Part 1 of this topic, we covered the advantages offered by use of a juror questionnaire and some of the specific benefits that can be realized by administering a scientifically valid questionnaire. In Part 2 we cover the structure of the juror questionnaire items and how to select questions that are predictive in nature.
STRUCTURE OF JUROR QUESTIONNAIRE ITEMS
In complex cases, such as intellectual property disputes, it is crucial to determine the levels of intelligence and the information-processing styles and capabilities of jurors. Observation of handwritten responses in a juror questionnaire provides a great deal of information about how meticulous and comprehensive prospective jurors typically are in their use and reporting of information.
You Can Learn a Lot from the Way Potential Jurors Answer Questions
Consider the typical question that requests the potential juror to list three or four of his or her most recently held jobs, to name the employer, list the position and duties, and indicate how long he or she held each position. The handwritten responses will reveal a great deal about the precision, thoroughness, and detail with which a prospective juror generally processes information. Jurors with more sophisticated information-processing skills will generally be more accurate with titles (e.g., will include "Inc." after the employer name); more comprehensive in the description of their work duties; and more precise with their dates of employment. Other examples from juror questionnaire items can provide additional insight into the intelligence and cognitive sophistication of prospective jurors. Such intelligence-related characteristics are not only important for rating jurors in intellectual property cases, but in many other types of complex litigation as well. The ability to gather such information from handwritten responses far surpasses the capabilities of oral voir dire.
Are There Patterns in the Responses?
The preceding example demonstrates that the way a potential juror answers a question may be as important as the answer's content. For example, in a Superfund toxic waste case involving a landfill, a question asked about the potential juror's knowledge of the community effects of the landfill and asked the potential juror to rate whether he or she was "not at all," "a little," "somewhat," "quite," or "very" familiar with the effects. We discovered that jurors who professed to knowing the most about the repercussions of the dumpsite before mock trial deliberations also invariably delivered high-figure plaintiffs' awards.
Analysis of their responses to questionnaire items obtained before the mock trial revealed that these same jurors typically had a "know it-all" response pattern coming in to the project. Why was this so important? Because it was not the prospective juror's actual knowledge that was predictive of a particular orientation; rather, it was likely the juror's belief about his or her own knowledge that was predictive. In this case, the most dangerous jurors - those responding in the most extreme category (the know-it-alls) - can be most reliably identified with properly formatted items in a questionnaire.
"Ratings" Can Tell You About the Potential Juror's Predispositions
A similar example can be found in ratings of litigants, and more specifically, corporate defendants. If the question asks the juror to rate his or her opinion of a corporate defendant as "very favorable," "somewhat favorable," "no opinion," "somewhat unfavorable," or "very unfavorable," an extreme answer will reveal much. Our experience has demonstrated unequivocally that jurors will not hesitate to use extreme negative response options in a questionnaire while they will hesitate to admit to such a position in open court. In fact, we have seen jurors pick the most negative option available in a response scale and then claim to have made a mistake later when being questioned orally. In cases when such jurors' oral retractions were believed by counsel, the results were very damaging to the corporation after such jurors were seated for trial. Most importantly, however, those jurors with extremely negative attitudes may not be apparent at all without the use of a juror questionnaire containing appropriately formatted items. Obviously, a simple "favorable/unfavorable" dichotomy as a response option will not accomplish the intended purpose.
CHOOSING QUESTIONNAIRE ITEMS
Generally, one cannot determine which questionnaire items will reliably identify which potential jurors are leaning toward the plaintiff and which toward the defendant. Quite often, simple hunches about which questionnaire items will most effectively identify risky jurors tum out to be more clever than correct. One of the most noteworthy examples comes from an insurance coverage case filed by a large pharmaceutical company against the insurers. Pretrial research demonstrated that negative attitudes toward insurance companies, and negative experiences (such as policy terminations and problems with claims) were not related to the verdict disposition in the case. However, negative attitudes and experiences with the pharmaceutical industry and various pharmaceutical products did predict verdict outcomes. At best, misidentification of valid predictors in the exercising of peremptory challenges leads to the waste of valuable strikes, and at worst leaves a destructive juror on the panel.
Only Research Can Reveal the Predictors
The most effective juror questionnaires have behind them the presence of empirical research, conducted in the venue, which explicitly identifies the characteristics of risky versus favorable jurors. In some cases, these characteristics are readily observable (such as employment-related variables, income levels, and ethnicity). In other cases, these predictive variables are represented by deeper beliefs, values, and attitudes held by the individual. Again, it is not clear how to chose among the myriad of alternative measurements that may be put in a juror questionnaire without being armed with the appropriate empirically derived data base to guide such efforts.
Expect the Counterintuitive
As another example, pretrial research was conducted in several sexual harassment cases. Interestingly, in all of the cases, females were not more likely to be plaintiff-oriented than males - even those females with liberal political views. In fact, the most successful predictors of a plaintiff verdict orientation turned out to be attitudinal measurements. Of these, one notable example was found to be the extent to which prospective jurors agreed with the phrase, "Most married men cheat on their wives." Without the benefit of research, young liberal females might well have been stricken on a "hunch." However, many of those women were defendant-oriented because they believed the plaintiffs had not handled their cases well against their male supervisors.
In the sexual harassment cases, and many others that we have studied, a particular group or "constellation" of attitudes and experiences signifies the greatest risk of a high-damage juror. The importance of explicitly identifying such a group of critical markers for flagging the riskiest jurors makes reliance on hunches or educated guesses of appropriate selection criteria even more tenuous.
JOCKEYING FOR POSITION
Too few litigators give juror questionnaires adequate thought or preparation. Many even treat them as something of an afterthought, a last-minute bit of preparation to get out of the way once all of the "important" work is done. This is a mistake: The juror questionnaire is a vital tactical weapon that requires a special place in trial preparation.
Be Prepared to Defend the Questionnaire
Be sure to submit the questionnaire as soon as possible. Often, judges will put the burden on counsel submitting the later questionnaire to demonstrate why it should be used instead of the questionnaire submitted first. The same is true for individual questionnaire items: Two items ostensibly measuring the same thing are not necessarily the same. As we have seen, the wording of the question and the manner in which response options are formatted can do much to reveal or conceal a particular type of juror. Be sure to cover all possible issues in your questionnaire. If you don't, the court might incorporate items from both sides into a "synthesis" questionnaire. Be prepared to defend a juror questionnaire item-by-item if necessary. You need to preserve the strategic edge that comes from having specially designed measurements that only expose the riskiest jurors for their own side.
Explain the Advantages to the Court
Some judges resist the idea of a juror questionnaire, or, if they accept the proposition that one should be used, will enforce a provision that it be kept short (possibly two or three pages). Even when the court imposes obstacles that you can't overcome, you can still make cogent arguments that a juror questionnaire expedites the entire voir dire process and makes it much more efficient. Thus, instead of asking each juror fundamental questions related to employment, case-related experiences, and bias issues connected with cause challenges, this information will already be obtained by the time the venire walks in. Oral voir dire can then be limited to streamlined, specially targeted follow-up queries that eliminate duplication and redundancy in questions asked of the prospective jurors. Our experience has been that some judges object to juror questionnaires because they are seen as an invasion of privacy, or are seen as otherwise intrusive. Although we believe that open court questions are more intrusive than a written questionnaire, some judges believe the opposite, and are often intractable. However, precautions can be implemented to safeguard the confidentiality of juror questionnaires, and these measures can occasionally assuage the concerns of some judges.
Reduced to its simplest terms, picking off the worst jurors is what jury selection is all about. In many instances, with a limited number of peremptory challenges available, separating the "bad" from the "worst" may become an essential priority. In any case, separating the "neutral" from the "bad" is always a crucial task. These gradations can only be reliably measured and inferred when the response options to a questionnaire item have been explicitly and appropriately formatted. A review of many important trials leads to the inescapable conclusion that the side which succeeds in having its juror questionnaire adopted by the court often delivers a blow from which opposing counsel never quite recovers.
Counter-Anchoring Damages is More Important than Ever