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Our last post addressed the standing orders in the Eastern District of Texas pertaining to jury research and good-old-fashioned Googling. Some have expressed frustration; others have simply abandoned their hopes for gathering feedback or intel on prospective jurors.
This post will focus on the standing orders pertaining to pretrial research. In my opinion, none of them grossly limit a trial team’s ability to conduct focus groups, mock trials, community attitude surveys, or any other sort of pretrial research. You simply have to be aware of the orders and conduct your research within the parameters.
But first you may be asking yourself, “Why do the orders exist in the first place?”
The most critical reason is to protect the integrity of the jury system. The EDTX has been one of the, if not the, hottest venues for patent and IP litigation for more than a decade. Because so many high-stakes cases are filed there, the EDTX has been a target market for a staggering number of pretrial jury research projects. Which means a higher-than-usual number of local residents are learning about issues (i.e., companies, patents, trademarks, technology, processes, etc.) that may render them ineligible to serve as jurors, should they be summoned on a similar case.
Let’s say you are picking a jury for an IP dispute involving cell phone technology. Would you want to seat a juror who had participated in a mock trial a year before who claims he learned a lot about Apple? Or wireless cell towers? Or Bluetooth software? Probably not. And I’d bet two dollars the judge feels the same way.
If a larger-than-normal percentage of prospective jurors have pretrial jury research experience, then logic suggests that a larger-than-normal percentage of them will be excused for cause. Which significantly whittles down the number of potential jurors. Which then increases the odds of not having enough jurors to seat a panel. And no judge on earth likes to burn a panel.
The odds of a mock juror living in the Marshall Division showing up for jury selection in the Marshall division for your case may be minuscule, but the odds of a mock juror receiving a summons to serve on a related matter in that division is really not so far-fetched.
Hence, the orders.
Participation in [pretrial jury research] increases the risk that otherwise qualified venire members will be disqualified from jury service either through participation in such studies or other extrajudicial knowledge concerning the facts of the case or the law to be applied; and
Such risk threatens the administration of justice.
Hard to argue with that, especially when you consider the volume of research conducted in the EDTX and the population of the counties.
So, how does a trial team still conduct pretrial research while abiding by the standing orders?
We’ve found the following practices have worked quite well over the years.
- Conduct the research in a neighboring division.
Some orders have clearer language than others, but they generally discourage conducting pretrial jury research using participants who “reside in division where the case is pending.” The solution is quite simple: move the location of the project to a neighboring division and recruit from counties within that division. For example, if your case is set in the Tyler Division, conduct your research in the Marshall Division. While it’s important to recruit folks who match the Tyler Division demographics, it is possible to conduct valuable research with residents from counties within the Marshall Division. You could still conduct your project within the Tyler division so long as your participants lived outside of the venue, but we prefer to move the entire project. And the bonus? If you conduct your research (and recruit) from a venue outside of the division in which the case is pending, we do not believe you are bound by the standing orders to disclose the research to the Court or to opposing counsel. Yes, it’s important to be open and honest with the Court, but our reading of the orders does not require disclosure if conducting research outside the trial venue. The choice to disclose or not to disclose is left to counsel.
- Require photo ID and a utility bill to ensure that the participant does not live in the trial venue.
This may seem intrusive or major overkill, but mistakes can happen despite best efforts. People move. Recruiters make mistakes. Miscommunication occurs. On the date of the research, double-check residency. And if you want to take it up a notch, make copies of the documentation for your files.
- Thoroughly screen potential research participants for conflicts.
It’s a good practice to ensure that folks who ultimately participate in your project do not have any affiliation whatsoever with anyone involved in your case. That includes parties, witnesses, attorneys, judges, etc. If the opposing party works at ABC Law Firm, it would not be wise to seat a participant whose family member or best friend works for that firm. Yes, it takes more time, but screening for indirect connections is always a smart choice.
- Include a paragraph about jury selection in your Confidentiality Agreement.
CourtroomLogic includes thorough verbal instruction in our orientation process, as well as carefully documented terms in our participant Confidentiality Agreement. Along with a host of other terms, we provide participants with specific steps each person must take if – by some random chance – they should find themselves sitting inside a courtroom for jury selection on the very case they will hear about during the research, or a similar case. The wheels of justice are slow, so there’s no guarantee that a participant living in the Marshall Division at the time research is conducted won’t be living in the Tyler Division by the time the trial date rolls around.
- Keep all identifying information on your research participants. The orders require name, address, and contact information for each participant in any research conducted within the trial venue, but it’s our practice to keep this information regardless of the project location. If you have retained a consultant to do the research for you, confirm that your consultant keeps this information until directed otherwise.
Focus groups, mock trials, surveys, and a host of other information-gathering tools can still be utilized for trial preparation. Once you know the requirements of the standing orders, the rest should fall into place easily.
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