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Googling Jurors: Trying to Find a Needle in the Internet Haystack?

February 23rd, 2011|

Some recent media attention has focused on attorneys and trial consultants who use Google and Facebook during voir dire to learn more about prospective jurors.  The Wall Street Journal and Reuters recently ran pieces discussing the practice and both articles describe instances where trial consultants and attorneys discovered information online that influenced the use of their peremptory challenges.  Beyond legitimate concerns about jurors’ privacy, how effective are online searches for juror information?  Both articles describe the kinds of information that might be found online, including the jurors’ favorite TV shows, their hobbies and activities, and their opinions as expressed on

How to Annoy Jurors and Lose Trials

January 12th, 2011|

Attorneys and trial consultants are understandably interested in any information on how best to persuade jurors and obtain the best possible outcomes for their clients. While tips and hints for success are certainly helpful, just as valuable can be examples of what not to do. In their recent Hofstra Law Review article on the poor performance of two attorneys in a personal injury trial, Bruce Green and Karen Bergreen use their experience as jurors to generate a great list of “don’ts” for any litigator. Both Green and Bergreen are experienced legal professionals. Green is a law professor and Bergreen is

“I’ll Ask the Questions!”: Preparing for a Trial that Includes Questions from the Jury

September 20th, 2010|

Nancy Marder has published an interesting new article about allowing jurors to ask questions of witnesses during trial. Juror questions, along with other jury reforms such as note-taking and simplification of legal instructions, are intended to improve jurors’ comprehension of the evidence and the law, in the hopes that justice will be better served. While Marder argues in favor of expanding the use of juror questions, attorneys must be prepared for how questions from the jury might affect the case story the attorney is trying to tell. Thirty states currently allow jurors to ask questions of witnesses during trial, although in

Why the Facts of a Case Almost Never Speak for Themselves

August 30th, 2010|

Several recent high-profile trials, including Rod Blagojevich’s corruption trial and the murder trial of Oakland police officer Johannes Mehserle, have featured video- and audio-taped evidence of the alleged crimes. In the case of former Illinois governor Blagojevich, an audio tape of a telephone conversation appears to record the then-governor discussing ways to profit financially from his power to name the successor to Barak Obama’s vacant Senate seat. In the case of Mehserle, cell phone video footage shows the officer draw his sidearm and shoot Oscar Grant, who was lying face-down on a train platform at the time of the shooting. But

“How Do We Get the Jurors to Like Our Attorneys?” and Why That’s the Wrong Question

July 26th, 2010|

At a recent Continuing Legal Education seminar on trial strategy, I was asked a question I’ve heard several times in the past. The attorney wanted to know what tips I could offer for getting jurors to like the trial attorneys.  In mock trials and post-trial juror interviews, jurors consistently praise the same attorney characteristics. For example, jurors tend to appreciate brevity in the attorney’s presentations, professionalism and a calm demeanor in court, and clarity of purpose in the attorney’s questioning of the witnesses.  In other words, jurors usually like attorneys who get to the point quickly and clearly and with

How to Get Out of Jury Duty (But Why You’d Be Lucky to Serve)

June 3rd, 2010|

When people find out that I’m a jury consultant, they often ask for tips on getting out of jury duty. I usually tell them that there a two fairly certain ways of getting out of jury duty, but then I explain why they’d be very fortunate if they got to serve on a jury.  First of all, avoiding jury duty is not hard. While ignoring a jury summons is illegal and I would not advise anyone to break the law, very few venues enforce the laws requiring citizens to return their jury summons. So if you get a summons in

Sticky Pedals are not Toyota’s Main Legal Problem: The Looming Threat of “Diminution in Value” Lawsuits

March 12th, 2010|

Toyota’s troubles with defective accelerator pedals have attracted a great deal of media attention. While the idea of cars racing wildly out of control makes for dramatic imagery, sudden acceleration is an extremely rare event. Only a handful of lawsuits have alleged that Toyota’s accelerator problems led to an accident. While these lawsuits are certainly serious, they are similar to the cases all major automakers face on a regular basis. Toyota’s much bigger legal challenge will come from “diminution in value” class action lawsuits.  Diminution in value claims against Toyota will probably go something like this: • The bad publicity surrounding

Clarifying Batson: SCOTUS Hands Down a New Ruling on Peremptory Challenges

February 24th, 2010|

This week, the Supreme Court handed down a per curium opinion in the case of Thaler v. Haynes. Thaler is the latest in a string of decisions concerning limits on the use of peremptory challenges during jury selection. The first of these decisions was Batson v. Kentucky (1986) which sought to eliminate the use of race-based peremptory challenges. Under Batson, an attorney can no longer strike racial minorities from the jury unless the attorney can provide a “race neutral” explanation for the strike. Among the many criticisms of Batson are that it is vague and difficult to enforce. Indeed, over the

Defending Against Damages: Strategies for Minimizing the Bottom Line

February 1st, 2010|

Defense attorneys are understandably interested in strategies for minimizing damages awards. Jeri Kagel recently wrote a good article on defense strategies for addressing plaintiffs’ damages claims. Kagel points out that any damages strategy will depend a great deal on the specifics of the case, but also makes several good points about how best to address this sensitive topic. In short, defense attorneys should not shy away from talking to the jury directly and confidently about damages. Defense attorneys have legitimate concerns about arguing over damages. If done incorrectly, disputing the plaintiff’s dollar requests can make the defense seem insensitive, or may

Jurors and Internet Research: Curing the Disease or Just Treating the Symptoms?

January 13th, 2010|

Time Magazine and several blogs have recently written about the problem of jurors doing Internet research on the trials they have been charged to decide. Jurors’ Internet research, as well as their writings on blogs and social networking websites, has led to several so-called "Google mistrials". As a result, courts across the country are looking for new ways to prevent jurors from improperly using information technology.  The most common response to this problem has been to include new jury instructions at the beginning of the trial. Wisconsin is among several states that have adopted jury instructions that specifically warn jurors