Several recent client/case events prompted this post. My biased view of litigation is that it is best done when as much input (a.k.a. data) is considered. This includes data from various experts, but also data from mock juries used to evaluate the risks of litigation. The first example is with a case that settled prior to the scheduled mock jury research. We are rarely privy to settlement decisions, including how much was paid/received, etc., but what I do know is that mock jury research would provide considerable direction as to what is a “good settlement.” A “good settlement” is in the eye of the beholders, and surely must include the cost of litigation, such as going to trial, the sunk costs of expenses like our research, which, when scheduled, involves some non refundable costs. And, it includes an assessment the operational interruption of a trial, that is, for a party, the stress and distraction of a trial. Yet, it seems to me that some cases, such as the one that is top of mind, settle prematurely, before all the data were considered. For example, when viewing the world from a defense perspective, is the case defensible such that a trial could yield a defense verdict that is, no monies paid? Of course, the cost of the trial can be significant such that paying to get out of it and avoid paying the lawyers does motivate some litigants. Yet, clearly all of the (potentially) available data were not considered in this instance. The second example was when Melissa was recently working with a trial team to “select” a jury. In this situation, she had considerable contact with an eager, but very inexperienced, associate. Pre voir dire background checks were conducted and the Court had the venire members fill out a reasonably detailed questionnaire. These things were great, but they were merely “background” and not case specific. Yet, the eager young associate was prepared to make his selection decisions before voir dire questioning began. Not that the decisions were his to make, but his premature decisions could influence the flow of the process. He failed to consider that, when the venire members answered case specific questions, prepared by Melissa based on her experience, expertise and some research, more data would emerge that could and should be used to refine the decisions on who to challenge for cause and who to strike. He was making his decisions too soon, that is, prematurely. One can never have all the information that there is to be had in any decision process. My point is to say, use what you have, get as much information as is feasible, and only make the decision when you are able to consider as much data as possible.
I prefer things to be done in an orderly, not a chaotic, manner. When I make a decision about whether or not a particular person will be a “good” juror for a client’s case, I don’t merely look at the person and say, “Yeah, that one looks pretty good to me.” Instead, my decisions regarding a particular juror are based on: (1) over 3 decades of experience in the scientific study of human behavior and decision making; (2) past experience working in the trial venue; (3) an analysis of the data collected during mock trials on the case; (4) an analysis of background check information regarding the juror under consideration; and (5) how closely the person fits the profile I have developed, based on the prior 4 factors, of a “good” versus a “bad” juror. Decisions made by some attorneys are not science based, rather, they are based on: (1) “gut feelings” about a particular juror that are often unexplained; (2) stereotypes and biases about certain groups of people, such as teachers, postal workers, and engineers; and (3) a desire to make a quick decision due to the judge’s desire to move the trial along as fast as possible. In the example David mentioned, the young, inexperienced attorney was excited to participate in his first trial. He had good intentions, however, he wasted valuable time and resources performing irrelevant tasks, such as combining, then alphabetizing, multiple groups of jurors, even though the court had separated the jurors into groups to accommodate the number of seats in the courtroom. He also wasted both his and my time (and our mutual client’s money) by constantly barraging me with his theories about each potential juror’s suitability for the case prior to hearing anyone’s answers to the voir dire questions posed by counsel for both sides of the case. I politely thanked him for his enthusiasm, then asked him to keep his opinions to himself, lest he bias mine. I explained to him that my opinions would be formed in due time, after and not before, all the information about each potential juror had been gathered and analyzed. Although, in the end, time pressures are tremendous when selecting a jury, it is nonetheless preferable to wait until the right time, when all information is available, to make the important decisions about who will be excused and who will be chosen to be a juror for a client’s important case. Premature decisions are dangerous because they are often wrong.