Source of article The Advantage Blog - Tsongas Litigation Consulting.
There is an ongoing debate about the priorities in current foreign policy between “Hard Power” leadership and “Soft Power” leadership. In simple terms, hard power leadership refers to things like military power and forward military projection to deter aggression, enhance readiness, etc. When one thinks of this, the lines are drawn most clearly back to the Pentagon. Soft power leadership refers to diplomacy, economic aid, and a line drawn more directly between other countries and the State Department. Both are a means of exerting influence on others in the global sphere.
We think about these concepts every time we do jury selection. It is an imperfect, but still useful, analogy. Jury trials are really best thought of as a two-step process of persuasion. The first step is to persuade a juror or jurors of the correctness and value of a case theory or story. This, however, is not enough. It is what comes next, at the close of the trial, and the start of the deliberation that is most critical. This is the second step of the two-step trial persuasion process. Jurors need to be armed with resources and motivated to use them when they argue with and against fellow jurors. This is when assessments of opinion leadership potential in jury selection, done at the beginning of the trial, matters most. Deliberations are dynamic events of small group democracy and communication. Certain jurors can exert more influence on the process and outcome of a verdict. Other jurors can take their cues from these opinion leaders, looking to them for support of their own positions, relying on them to make sense of the complex issues of evidence and the law.
So when we assess the risks of leaving a potential juror on the panel, we consider these two notions of hard and soft power opinion leadership as one of the final and critical factors in our peremptory strike recommendations. The first level of assessment concerns understanding and evaluating the attitudes and experiences of the potential juror, because those are the first factors that will help us understand if they could be unreceptive to our case themes and evidence. The reasoning processes people use are bounded, constrained, or motivated by experiences and attitudes. The assessment of opinion leadership is the consideration of how influential a person may be. So, as a simple example of a risk calculation, there may be a situation where we have to choose between a juror with a number of adverse attitudes and opinions and low opinion leadership potential, and a juror with high opinion leadership potential, but who have relatively fewer, or perhaps even more, shallow attitudes about case issues.
What is the distinction between a hard and a soft power opinion leader? A hard power opinion leader is one who is more likely to be assertive, aggressive, taking charge of the deliberation. It can be more coercive and heavy-handed in approach and style. It can be associated with a person with more supervisory and managerial experience. It can be associated with higher level group leadership, which could include teachers, team or project leaders, executives, or administrators. Such risk characteristics can be gleaned from understanding the potential juror’s current job or job history, as well as by understanding their participation in leadership capacities in their local community. Watching jurors’ nonverbal behavior, which includes not only how they look, but how they sound and project authority in response to voir dire, can shed a good deal of light on the option leadership potential of the individual. For example, years ago, one juror was a former United States Prosecutor. We were defending a class action employment case and our strategy was served by a deliberation that would be very formal, process-oriented, careful, and methodical, rather than emotional. This juror had been a member of a class action before. Presumably that was one of the factors that led to the other side keeping him on the jury. We knew this as well, but in our calculus this hard power opinion leader presented more benefit than risk, even with his experience. His other experiences, we believed, trumped this single issue of class action experience. We will return to discuss more on this juror later.
Soft power juror opinion leadership is different. These jurors we define as more interpersonally and socially savvy and subtle. These jurors are more socially adept, relate to different types of people, and forge relationships and friendships. Such opinion leaderships are more likely to validate a competing juror’s point of view and turning that connection into a means to advance their goal based on a showing of respect and common ground. Assessments of these types of jurors are often made from observations of the behavior of jurors in the jury selection process. And, this observation includes not just the people who are answering questions, but how they respond nonverbally to the answers of others or to the questions by the judge or attorneys. It can also be assessed in the periods of time outside of the formal question and answer sessions. Looking for how people interact with other people in the venire: Do they appear comfortable meeting, interacting, and listening to others they just met? Do they seem to be able to connect with multiple people throughout the process? Do they seem polite but comfortable, assertive, and engaging? There may be elements of their profession that can also reveal insight on their soft power opinion leadership. For example, there was one female in the venire who had a number of experiences and attitudes antithetical to our case strategy and theory. We recommended using one of our few peremptory strikes. The purpose of the discussion between the team after voir dire and before exercising peremptory strikes is about a thoughtful and useful dialogue about potential jurors’ risks relative to each other. The response from the trial team was, on its surface, reasonable. They were not concerned because the potential juror was a flight attendant and tour guide. They were focused on, reasonably, hard power opinion leadership characteristics. The concern, which we expressed, is that this is a person trained day in and day out getting people to do what she needed them to do. This is a person accustomed to being polite as she enforced rules or guided her customers’ attention and actions. This was a person trained in dealing with many different types of people, including, no doubt, unruly or unreasonable people and attitudes. She was a real risk. The argument made sense to the trial team and they removed her from the jury panel.
Now, I have made a binary distinction between hard and soft power opinion leaders. But, just as in geopolitics where hard power military projection and soft power economic aid and diplomacy can work in tandem, there are jurors who possess both forms of opinion leadership power. Returning to our former US Prosecutor, he was not only a clear hard power opinion leader, but also possessed soft power qualities as well. He came to both parties at the end of the trial (a defense verdict) to tell the trial teams what occurred in the deliberations. He was the presiding juror. I asked him if he was nominated and he said that he volunteered and that offer was quickly accepted by his fellow jurors. He told us that he made sure to take each of his fellow jurors to lunch at least once, to get to know them and to establish himself as a likable person. He did this to increase his chances of being the presiding juror. His rationale came from an honest place. He knew the case was significant, he knew it would be a complicated issue. He wanted to facilitate the deliberation in order to keep the discussion organized, focused on the legal standards, and to make sure everyone’s views were considered. He ran the deliberations in addition to expressing his own views of the evidence and the law before them.
So, the debate over the emphasis of hard and soft power foreign policy leadership will continue. The debates over who to use the limited number of peremptory strikes on will continue. Jury “de-selection” is a stage in a trial when the trial team gets to use limited, but profoundly critical, opportunities to remove jurors who may not be open to or receptive to a fair evaluation of a case theory or themes. We hope this simple way of thinking about the potential types of opinion leadership can become part of your jury selection strategy.