Magic Bullets

A Point of View

David H. Fauss, M.S.M.

On January 2, 2020

Category: Getting the Job Done, Jury Behavior, Jury Consultants, Litigation Tips, Magnus, Magnus Insights, Psychology, Trial Consultants, Trial Consulting

I recently read an article about a “brand new, state of the art jury selection program to bring data science to jury selection.” That is not a direct quote, but a synopsis of the news story I read about the program. (Disclaimer: I don’t really know anything about this program other than what was in the news and on the firm’s website.) This particular program is available only to plaintiffs’ lawyers so I will not address it specifically, but rather, the concept that something like this is often seen as a magic bullet. Despite the claim in the article, this is not the first computer based jury selection program; I’ve been aware of them for many years. And, the implication that this is the first time that data have been analyzed in jury selection is untrue. As trial consultants, analyzing data from jury research to use in jury selection is one of our primary functions. The article indicates that this “new” program evaluates background, social media type data, to determine favorable or unfavorable jurors. Again, this is not something new. This program and others may do things differently than trial consulting professionals, but it is not a new idea. Again, I’m not attempting to disparage anyone or any company that has come up with technology to help lawyers. My point is that, in the 30 or so years I’ve been working with lawyers, I have noticed some of them are always searching for a “magic bullet” that will give them a shortcut to the answer, in this case, who will or won’t be favorable to their case. I have to say, I’m not sure there is one. The art and science of selecting a jury by trial attorneys, with or without the assistance of a trial consultant, is just that. It is something which takes practice and builds on experiences. The dearth of trials is negatively impacting all attorneys’ trial skills, not only jury selection. Absent first chair opportunities to “pick a jury” and have a conversation with potential jurors, gaining that experience, and the comfort level that goes with experience, present among top trial lawyers, is difficult. But, I don’t think a software program replaces the human skills required for the job. Believing it does seems dangerous. A program of this sort may help develop some of the critical thinking required. I’ll give it that. But, using such programs, or even any trial presentation programs, requires practice and a separate set of expertise than just operating a computer program. Never should jury selection be the time to learn the program. If I sound skeptical of a program of this sort, I am. Having spent a large part of my life around trial lawyers and trial consultants, I know that data are a part of jury selection, as are excellent 2 way communications skills – that is talking, and LISTENING! It is an area where experience matters and a computer program is not a substitute for experience. Finding ways to practice voir dire (perhaps some pro bono cases) or to observe skilled trial attorneys during voir dire are better ways to build a skill set of one’s own.

A well respected attorney with whom I have been acquainted for almost 30 years alerted me to this latest attempt to make jury selection easy enough for a trained monkey to perform.  Please do not think I am, in any way, disparaging monkeys.  I have nothing against monkeys, but I do have something against humans who believe, and would like others to believe, that a skill requiring an advanced degree and many years of experience can be performed by a computer.  In that computers have only recently been able to win chess games against humans, I believe it will take many years for my job as a social psychologist who specializes in jury decision making to be replaced by a machine.  When I read the article about this new, “state of the art,” “first of its kind” jury selection software, my first reaction was to laugh, with robust hilarity.  Even the name of the software provoked me to react with mirth!  I am the first person to admit that what I do for a living is a long way from rocket science, however, I cannot begin to imagine how inputting, into a computer, basic demographic information about prospective jurors will result in a scientifically predictive profile of their verdict preferences.  (In that decades of scientific research have demonstrated, time and time again, that demographics do not predict verdict, for the life of me I just cannot accept that, if a computer spits out information based on an erroneous predicate, it suddenly becomes correct.  This is another example of what happens when a “garbage in, garbage out” methodology is followed.)  There is no such thing as a magic bullet.  If there were, believe me, I’d be the first person to use one.  Although I have a Magic 8 Ball on my desk and I consult it when I need a little humor in my life, I would never select a jury based on an “answer” I obtain from it.  Aside from the fact that certain lawyers and others with dubious ethics have, for many years, claimed to have invented similar jury selection predictive systems to the system this lawyer would like us to think is the first of its kind, it is, in my opinion, merely the latest attempt to search for an easy way out of a difficult situation. 


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