I was recently discussing with a client Melissa’s involvement as a trial consultant during jury selection. The attorney was well seasoned, has had many trials, but has never engaged a trial consultant to assist during jury selection. And, like most attorneys these days, the opportunities to conduct jury selection, and go to trial, with everything a trial involves, is limited by the shrinking number of trials. In other words, attorneys don’t get the practice they once did. Melissa, on the other hand, works for many lawyers and thus, is in trial for jury selection more than most attorneys. For example, she had jury selections during both of the prior 2 weeks to the week I am writing this post. With that background, I explained her role, what she does, how she helps, etc. In today’s world of jury selection, as we’ve written before (https://magnusinsights.com/2019/01/juror-background-checks/), jury selection also involves background checks of jurors and synthesizing that information. The attorney was hesitant, as if he didn’t comprehend my description, and then he said it. “Well, it’s all guesswork anyway.” I was shocked. I think he knows better. I hope he knows better. I wasn’t sure how to respond and certainly didn’t want to offend him. I think I said something along the lines of “If it is guesswork, a trial consultant like Dr. Pigott is providing very educated guesses.” I further explained that, with the data from mock jury research, which we had in his case, she develops profiles of favorable, or more importantly, unfavorable potential jurors. With those data, with the voir dire questions she’s drafted for the attorney to use, and with the background data, it is not a shot in the dark. Her decisions are impacted by the draw of the venire, i.e., by who shows up as potential jurors, but guessing who is good or bad is much reduced when a trial consultant is involved. Trying to ask questions and sort through the responses is an overwhelming event for some attorneys . But, the trial consultant’s role is to supplement the attorney’s efforts in this process. If the attorney does not comprehend that working with a trial consultant is about improving the odds of a positive outcome, I’ve got some remedial work to do to move the needle from guess work, to educated guess work, to strategic decision making. Alas, someone like the attorney who made that comment may not be able to adjust and therefore, in all likelihood, will not achieve the best outcome for his client.
I’m not sure which of Magnus’ uninformed/misinformed clients made this remark to David, but this remark is another reminder that seemingly intelligent, sophisticated people are sometimes not as intelligent or sophisticated as they would like other people to believe. Guesswork? Did this guy say guesswork? There is nothing, absolutely nothing, involving guesswork in my jury selection strategy. My decisions to select and de-select jurors are based on: (1) the outcome of case specific research that has been performed in advance of jury selection, including statistical analyses of data obtained in this research; (2) decades of scientific research on jury decision making, in particular, and human behavior, in general, leading to publications in professional psychological journals; (3) decades of experience conducting research and selecting juries in the type of case for which I have been retained to select the present jury; (4) excellent observation and listening skills, leading me to delve into the meaning of every prospective juror’s answers to the attorneys’ voir dire questions; and (5) excellent note taking skills, allowing me to record, verbatim and in real time, what the jurors have said without having to rely on my memory of what they might have said. Does this sound like guesswork to you? Attorneys who say selecting a jury is guesswork, or is like a roll of dice, or who select jurors based on “gut feelings,” stereotypes, or the way someone looks need a lot of remedial education about working with someone like me, who takes the guesswork out of the important decisions regarding who will reach a verdict in the case. I am far from perfect, but saying what I do for a living is merely guesswork is wrong, wrong, wrong.