The most common mistake in jury selection
The elephant in the war room
After more than 35 years of hands-on experience in jury selection across the country, in all types of cases, and in State and Federal courts, the range and diversity of observations never ceases to amaze me. One basic fact that underlies all the experience is that judges are given wide latitude as to how to conduct the process, resulting in a great deal of variability as to how the logistics and procedural details are carried out.
In one panel conducted by a major law firm, a 90-year-old retired judge offered this advice to young lawyers: “The first thing you want to do is to get to the judge’s courtroom for a prior case and see how he does it.” While it is unclear to me how often this advice is actually followed, not knowing the procedural and logistical details in a forthcoming jury selection is typically not a mistake that trial teams make – in other words, it has been my experience that litigators are fairly well informed as to how a presiding judge plans to carry out the specific action plan during selection.
Generally, minutiae are well under control, but the biggest issues are not – namely, precisely how to determine whether a juror is favorable or unfavorable to a case. and how to implement a strategy to efficiently resolve such issues in a strategically optimal fashion within or during the jury selection process. The reason there is typically a huge blind spot pertaining to such issues – the elephant in the war room – is because they require psychological measurement (assessment of a prospective juror’s psychological characteristics) and prediction (ascertaining whether such characteristics will inure to the benefit of one party or another in the litigation).
The word “require” is italicized because psychological measurement and prediction are not luxuries – they are essential to the process if one is to make an unambiguous assessment of whether a juror is “good” or “bad.” Generally, however, trial teams do not have someone present at trial with this kind of background or training. As a result, picking a jury is often a result of decisions based on comments like “I like him” or “she smiled at me.”
A theory of jury selection
While there are several moving parts involved in the process, underlying the entire operation is the need to predict behavior, i.e., decide as to whether a prospective juror is “good” or “bad.” While this occurs on the individual level – that is, to make decisions in this realm on a person-by-person basis – it also occurs on the group level, in the sense that we wish to determine how members of the group will interact together in making a verdict decision. For example, will a certain juror be isolated because he is unusual, or will he form a “block” with similar jurors and enhance the importance of an extreme viewpoint? There are in fact a myriad number of different possibilities that can impact the direction of deliberations.
Two things are required: 1) Knowledge of the pre-existing characteristics (personality or temperament dimensions; information processing styles; attitudes, beliefs and values; experiences; and so on) that are predictive of actual verdict preference and damage award levels; and 2) a working knowledge of how to measure such pre-existing characteristics within the jury selection process for purposes of evaluating a juror.
While many litigators have hunches about how to operationalize 1) and 2), such impressions are rarely based on scientific research that would confirm or disconfirm their validity. In fact, this type of knowledge can only be obtained through scientific testing in jury research activities by trained psychologists and through repeated validation in actual trial settings.
Putting it to the test
In an exploratory research (mock trial) setting, many different types of pre-existing characteristics are assessed to determine their correlations with subsequent verdict and damages preferences. The magnitudes of such correlations are then observed to determine which ones are likely to represent predictive constructs. Those that are found to be predictive are then subjected to confirmatory testing in later projects or trials in order to ascertain their reliability.
Let’s use as an example the psychological construct of “information need” – namely, the amount of data or evidence required by a person to make a decision. Plaintiff jurors tend to have low information need – they make decisions quickly based on minimal amounts of information. Defense jurors, on the other hand, have high levels of information need – they require large amounts of information to come to a conclusion. The importance of this construct was examined in the arena of East Texas patent litigation to examine its potential utility in picking juries there.
The construct of information need turned out to be exceedingly important for more than one reason (much of the research is described in Law.com, “Taming Texas” 2008, where it is described how Forgent v Echostar was mock tried four times). First, jurors who need more information are more likely to wait to make a verdict decision – they do not automatically accept the plaintiff’s misappropriation story at the outset of the case. Second, they tend to view minor details as important, and thus are less likely to see infringement as a result of small differences between patent claim elements and the accused device (“small” things are “important”). Since they tend to store and retrieve more information from memory later, they also become powerful forces with which to deal in deliberations.
How do you measure it?
The next question becomes, how does one obtain this information in the jury selection process? At this juncture the often-overlooked utility of the Supplemental Juror Questionnaire (“SJQ”) becomes of paramount importance. Here, the written data from prospective jurors can be examined in a format that is unique and unavailable anywhere else. Thus, for example, to determine the level of information need, within the SJQ we may examine:
· Types of hobbies, reading materials and television viewing (high information need individuals have technical hobbies like electronics, read nonfiction or biographies, watch Discovery Channel or documentaries, and so on);
· The manner in which they answer questions (because they typically want more data, they check scale items indicating ambivalence or desire for more information, whereas plaintiff jurors check the extreme endpoints of scale items);
· Overall precision and attention to detail in completing the form; and,
· Types of occupations, special skills and interests, and so on.
The SJQ provides insights that cannot be obtained through open court oral voir dire, which is subject to intense pressure to provide socially desirable answers and is additionally notorious for its lack of candor and recall errors. Most importantly, however, the manner in which scale items are checked in response to specially designed SJQ queries holds valuable psychometric data that a trained psychologist can use effectively for key inferences as to a juror’s psychological disposition.
While many litigators are eager to hire a private investigator and conduct on-line social media and background checks, a scientifically-constructed Supplemental Juror Questionnaire nevertheless yields considerably more useful information for purposes of predicting juror orientation. Social media checks seem to be all the rage presently but their actual utility for prediction turns out to often be quite limited (“Here is a picture of me and my dog.”). On the other hand, a scientifically-constructed SJQ can generate a great deal of extremely valuable predictive material.
The alert reader will note a special emphasis on the phrase “scientifically-constructed” which is indeed intentional, as many trial teams will put together an SJQ that “looks good” but it is not comprised of scientifically predictive items. This is of course not surprising when one considers the fact that prediction is the highest level of scientific achievement and cannot be accomplished through hunches or intuition. The clear implication here is to get a psychologist involved in the process who has demonstrable experience and training in psychological measurement.
The Role of Cognitive Fatigue on Witness Performance