Litigators who do not listen to juror feedback after a trial can be doing themselves a great disservice. Who else but the jurors themselves can provide such explicit feedback regarding the attorney’s strengths and weaknesses in presenting a certain case to a jury? Whether the trial is won or lost, litigators who listen to jurors’ comments can be assured that their next venture into the courtroom is likely to be more effective, engaging and persuasive than before. This article outlines the type of feedback that is most meaningful and how to best obtain jurors’ genuine responses.
During a post-trial interview with a juror, one of the most obvious areas of inquiry is deliberations. Post-trial interviews allow the trial team to understand how each juror reacted to the case, as well as how the group as a whole processed the information and came to a verdict. There are two main ways in which juries come to verdicts, evidence-driven deliberations and verdict-driven deliberations. In evidence- driven deliberations jurors systematically go through evidence and discuss the issues before voting on the verdict question(s). In contrast, in verdict-driven deliberations, jurors focus on the verdict question(s) and vote early and often. This type of deliberation is likely to be contentious and juror biases often play a larger role. The control of the deliberations by the foreperson is also telling.
When jurors talk about deliberations they often remember specific information and key phrases from the trial that helped to shape their discussions afterwards. Asking questions that allow jurors to articulate and defend their positions often yields eye-opening information about what they did or did not understand about the case, and the strength of their views. Listening to the vocabulary that the jurors use to talk about deliberations is another way to gauge their level of comprehension. These interviews with jurors can confirm jury selection models and inferences, and can document how small group interactions may cause jurors’ beliefs to change.
Another good question to ask jurors in a post-trial interview is what would they liked to have heard, but did not hear. While some of this information may apply to evidence that was not permitted in trial, the attorney can learn why that evidence would have made a difference. Jurors are often disgruntled when they feel that they did not get the full story, and they resent having to make ‘uninformed’ decisions. The attorney who does a better job of answering these questions will be more effective and come across favorably to the jurors. This type of information is particularly useful in serial litigation. Based on the juror interviews, attorneys have a better idea how to structure their next case presentations.
Post-trial interviews can also help to ensure that an attorney is not losing a trial before evidence is even heard. Jurors sometimes admit that their feelings about the attorney influenced their verdict decision. Jurors react to anything and everything from voice inflection, to posture, to hand gestures. Jurors who react negatively to the bearer of the information are less likely to hear the entire message. Post-trial interviews are an effective means to point out areas of improvement on an attorney’s style of communication.
Witnesses and experts are often integral parts of trials. Feedback on their performances is particularly important if a case is to be retried on appeal. Litigators specializing in a specific practice area also may have repeated use for an expert and should understand how jurors view this expert. Certainly credentials are important, but the ability to establish rapport with the jurors is significant to the outcome of the trial. Even if an attorney is not planning to use a particular expert again, the feedback from jurors can help shape his or her choice of experts for an upcoming trial.
Post-trial interviews are also useful in the evaluation of the demonstrative evidence used during the trial. Advances in computer technology have opened the door to new ways of presenting images, situations, and stories. Whether they are simple diagrams, or high-tech computer generated images, it is critical that an attorney’s visual aides enhance arguments rather than detract from the presentation. Jurors’ feedback on these issues range from suggestions of better color schemes to the creation of entirely new demonstrative pieces.
A few challenges arise in getting the best feedback from the jurors. Simply contacting the jurors and gaining their permission for an interview can be tough. Eliciting feedback from jurors who are not especially articulate or expressive is also not always easy. Finally, compiling all of the information into a cohesive form that best communicates the jurors’ comments and gives the reader a sense of the group dynamic is also difficult.
There are three different ways to approach a post-trial interview: A quick in the hall encounter, a discussion over a meal, or a third party contacting the jurors by phone. The first, a quick, ‘in-the-hall’ encounter, where the attorney speaks only a few minutes with the juror is generally not effective. The timing, environment and the interviewer all lend themselves to keeping feedback short and sometimes biased. After deliberations, jurors may not want to talk about the trial, since they have already discussed the verdict in great length. Those juror who do talk to the attorneys may not be inclined to give well-thought-out responses, and the environment of the courtroom may still be intimidating to jurors.
Some attorneys suggest a meeting with the jurors over a meal a few days after the trial. While this allows for a prolonged contact with the jurors, it is difficult to obtain quality feedback from each individual juror. Those jurors who dominated the deliberations will probably also control the feedback discussion, while the jurors who disagree with what is being said are less likely to speak up. Unfortunately, jurors also know which side is conducting the interview, and therefore their answers may be biased. If the attorneys who tried the case are present, it puts the jurors in the uncomfortable position of not always being able to say exactly what they think, thus hindering the evaluation process.
The ideal way to conduct a longer post-trial interview is to have a trained third party contact the jurors and perform a phone interview. Jurors do not have to leave their homes, and they can be contacted at their convenience. Using a third party allows the side paying for the interview to remain anonymous, and juror responses are more candid.
Hiring trained interviewers also ensures a greater response rate among the jurors. In many cases, not all jurors will want to give post-trial interviews, even though in most instances they are paid for their time. Many people get nervous talking about a case, and because most people have not heard of such interviews they are cautious about granting them. Having a trained person calling them increases the chances that they will want to participate. The trained interviewer will sound more relaxed and credible on the phone, and is better equipped to answer the jurors’ questions about the process.
It is also important that the interviewer knows when to ‘probe’ certain questions. Often jurors will reply with just a quick “Yes” or “No” answer. An experienced interviewer will know when and how to elicit better feedback. Keeping a good rapport with the juror throughout the interview also lessens the likelihood that the juror will cut the interview short.
In the past, in-depth post-trial interviews were primarily used to investigate instances of suspected juror misconduct or other appealable issues. While this is an important part of some post-trial interviews, the scope of these interviews has widened considerably. In particular, serial litigation has benefitted greatly from juror feedback from trial to trial. Today, many attorneys find post-trial interviews to be an integral part of enhancing and fine tuning their litigation talents.