A comprehensive, strategic jury communications program can lead to victories in challenging cases.
The Litigation Group was an integral part of a complex contract case that went before a civil jury late last year. The strategic decisions implemented by the trial team significantly changed the trajectory of the case and provided the lawyers with all the ammunition needed to win at trial before the jury.
This case highlights the power of understanding your case through the eyes of the jury. This article will provide a detailed step-by-step analysis of how we worked with the trial team to get a victory in this challenging case.
First Strategic Decision: Witness Preparation
The first strategic decision the client and lawyers made was to retain jury consultants early in the case. This allowed the trial team, client and the witnesses to receive the benefits of understanding how to effectively communicate to a jury before depositions were taken under the watchful eye of a video camera. We let everyone in the case know that while industry jargon is great for the lawyers and insiders, if you really want the jury to understand and be persuaded by the testimony, it has to be broken down to a level where jurors can appreciate what the witness is truly saying and how it relates to the case. Some of these prep-sessions took me to other parts of the world. It was very helpful to the foreign witnesses to gain an understanding of certain customs and cultures that impact persuasive communication in the United States.
Conducting pre-deposition witness preparation sessions with a jury consultant afforded the witness the opportunity to avoid some of the classic communication mistakes that most witnesses make during videotape depositions. These practice sessions gave the witnesses time to structure their testimony, practice their delivery and receive effective communication tips on how best to deliver their testimony.
All too often witnesses truly don’t understand what a deposition is or how it will function on the day of the testimony. Many witnesses believe that their lawyer is literally there to defend them, meaning that if they don’t want to answer a question the defending lawyer will step in and explain to the other counsel that the witness simply does not want to answer that question. In one prep session the CEO turned to the lawyer and asked, “What is the signal?” The attorney was confused and inquired what he meant. The CEO went on to say, “What is the signal that I need to give you when I don’t want to answer the question and you should step in.” We all know that is not what will happen at a deposition but it is a window into the understanding of the deposition process from the perspective of the witness. The CEO heard that the attorney was going to be “defending” him and thought, logically, that the lawyer would protect him from difficult questions. He was later clarified that the attorney is “defending” the record—that the witness was required to answer all questions if he understood them (absent attorney-client privileged information) and that the lawyer was making objections and preserving the record for later arguments before the judge.
Second Strategic Decision: Conduct Early Jury Research
The trial team decided to conduct an early phase of jury research to gain an understanding on how the jurors viewed the case facts and evidence and what additional information the jurors needed to find for the defense. This phase of research was conducted while discovery was still underway and provided the trial team with excellent intelligence that was then exploited during discovery.
Many times the jury research will uncover a sticking point or an avenue in the jurors’ decision-making process that the trial team could not anticipate. With discovery still open it allowed the lawyers to go and collect evidence that the trial team would otherwise not have anticipated. The research clearly exposed these fruitful areas and provided the attorneys with the ability to tailor fit the evidence to what was important to the juror’s decision-making. The lawyers specifically developed evidence to answer many of the questions that were confounding the jurors and preventing them from finding for the defense.
Third Strategic Decision: Re-test Strategic Recommendations from Phase One
During the second phase of jury research, we used our proven research design, with its emphasis on custom-designed questionnaires for each case, and analysis of jurors’ attitudes and perspectives before, during and after the mock jury process. This comprehensive approach gave the trial team important data on how jurors’ pre-existing attitudes and experiences affected their interpretation of the case facts and issues. Ultimately, our design provided a roadmap for developing compelling, resonant arguments in the case.
Fourth Strategic Decision: Tailor Jury Selection to Jury Research Profiles
As most lawyers will tell you, the jury selection process is the part of the trial that you have the least amount of control over because you cannot predict or control what type of jurors will show up at any particular selection. It’s like I always say: “If you are looking for one-eyed pirates and none show up that day of selection, you pretty much are going to have a rough go of it at trial.” That said, our jury research with its strong statistical based profiles and high level of validity and reliability brings some control over the seemingly uncontrollable process.
We have seen over and over again, to the benefit of our clients, the opposing legal team believing it wants the same types of jurors that our profiles indicate are good for our client. During jury selection, the other side left on the jury two jurors that we knew from their experiences and attitudes were going to be leaders and strong advocates for our client. Knowing we had two jurors who would be very receptive to our case provided confidence to our team and a belief that if we gave the evidence to these jurors that they would go into deliberations and would fight for our client. After conducting post-trial juror interviews that is exactly what happened in the case deliberations.
Fifth Strategic Decision: Shadow Jury
The trial team wanted to ensure that all of our jury research strategies and themes were hitting home to the jury to produce the best possible trial outcome. The shadow jury, if done correctly, can provide “in-trial” intelligence to the trial team that can be key to making sure the case is positioned in the best possible light. Additionally, the shadow jury intelligence provided the client with updates on where the case was likely sitting in the minds of most of the jury panel for business and planning perspectives. In this case, with our unique tools we were able to demographically and attitudinally matched six jurors to the actual trial jury. Those shadow jurors attended every day at trial and were then debriefed nightly, after which, we wrote a report and briefed the trial team on where the shadow stood on the case.
Understanding what issues were still confusing the jurors and how the jurors were reacting to the witnesses and attorneys was invaluable intel that gave the trial team insight on what information was necessary for the jurors to be persuaded to our side of the case. The shadow jury then deliberated the night before the closing arguments, which allowed the lawyers to refine their arguments and shape the evidence for the best possible outcome.
At the end of the five-week trial, our lawyers emerged with a defense verdict in a case that could have meant a more than $1 billion judgment against our client. This was exactly the kind of case that proves the invaluable need for jury communication research, and the beneficial relationship that we develop with our clients.
I would welcome the opportunity to introduce our services to you and your clients for consideration. Please feel free to contact me if you want to discuss a particular situation you might have in a case, and I look forward to hearing from you.
Mark T. Gerard, M.A.
President, The Litigation Group