Source of article The Advantage Blog - Tsongas Litigation Consulting.
To say that some were surprised by the results of the Malheur National Wildlife Refuge standoff trial would be an understatement. And it didn’t just come as a surprise to the prosecution – it’s likely that attorneys on both sides of the issue were surprised by the verdict returned by the jury. One of the defense attorneys was quoted in the Seattle Times as saying, “This is off-the-charts unbelievable… I had been telling my client you can count on being convicted. You don’t walk into federal court and win a case like this. It just doesn’t happen.”
Enter, the post trial juror interview. Whether you’ve won or lost, or are on the side of the plaintiff, prosecution, or defense, post trial juror interviews can help to sort out what happened in deliberations. When it comes to post trial juror interviews, preparation is key. Don’t wait until you’re surprised by a verdict, either positively or negatively, to consider asking jurors about what was truly important.
The last thing you want to do is violate the judge’s orders or venue-specific laws. Ask the judge ahead of time if contacting jurors post trial will be allowed. It’s better to be clear about your intentions to interview jurors than to let this come as a surprise to the judge once interviews have already been conducted.
Set your Goals
Information both at the juror and jury level are important. Finding out what jurors thought individually can shed a great deal of light on your case and deliberations. But since the decision was made as a group, getting ample context and feedback on group dynamics is also important and will give you a macro-level view of the issues. Plus, getting perspectives from jurors on what others thought and discussed can help if you’re not able to reach everyone on the panel. As themes start to emerge (i.e., three jurors agree that the foreperson was a strong and respectful leader; two jurors identify juror #3 as the holdout; four jurors distrusted the opposition’s key witness), your confidence in this perspective is strengthened even if you’re unable to interview everyone on the panel.
Draft Questions Early
Draft questions early, possibly even throughout the trial, or at least while the jury is deliberating. That way, you’re prepared to reach out to jurors as soon as the case closes. Drafting the questions and conducting the interviews can also be done by a trial consultant, who is the ideal person to ask questions of jurors to avoid the “good subject” phenomenon of the juror telling you, as the attorney, only what they think you want to hear.
The More, the Merrier
Some clients aren’t as interested in interviewing jurors who were less influential in deliberations – the “wallflowers.” But these perspectives, although not influential in the current case, could be influential in a future case given the right personality to drive them. The more data, the more agreement you can achieve between jurors, the more confident you will be in your results. Try to obtain as many perspectives as possible, even from those who didn’t drive the verdict behind closed doors.
Don’t stay in the dark after your next verdict. Ask the jurors about their perspectives of the case, what they discussed in deliberations, and how they came to their verdict. It’s a simple and effective research tool that could save you surprise in your next case.