The trial is over, the verdict is in. After devoting so much time and energy to the process, lawyers want to know how jurors perceived their performances. But there is an art to seeking feedback from a jury after trial.
To learn some of the best ways to obtain jury feedback, Texas Lawyer reporter Angela Morris emailed a Tyler solo who has led more than 500 trials, a longtime jury consultant and a patent litigator who twice convinced federal judges to let her talk to juries—something that generally doesn’t happen. Here are their answers, edited for length and style.
Texas Lawyer: Please explain your top tips for an attorney to get the best feedback from jurors after a trial.
Charles Clark, solo, Tyler: My number one tip for interviewing jurors after a trial is: Do not conduct the interview yourself. If the case justifies it, hire an investigator to make the initial contact with the jurors. Give the investigator an outline of what you are looking for. Do you want to know about your performance? Are you interested in knowing the jury’s opinion of your experts? How did your client impress the jury? What about their impression of the other side’s witnesses, experts, and lawyers? If the case does not justify the expense of hiring an investigator, utilize the services of another lawyer in your office. One of the purposes of the initial interview is to determine if the juror is willing to talk to you. If the juror is willing to submit to a conference, scheduling of the conference and meeting with the juror should be done as quickly as possible. In visiting with a juror, even though you may think he or she made the dumbest decision in the world, do not voice your opinion. You are there to obtain information. The trial is over. The verdict will not be changed.
Doug Keene, Ph.D., president and founder of Keene Trial Consulting, Austin: Prepare in advance an outline of the questions you want to ask. Start with thanking them for their service; then broad questions about what it was like for them; then narrow it down to the key issues you’d most like to know. They are not going to be comfortable criticizing you or your client. If you want candid feedback about your case (especially if the verdict favored the opposition), it is much better to have someone else conduct the interviews. In addition to telephone interviews, you can send out written survey-type questionnaires or invite them to a dinner or happy hour in a private room where they could have a ‘reunion’ of their fellow jurors while you get to pick their brains. As a practical matter, this is much more likely to work if you are the perceived winner. If you do the written questionnaire, offer to pay them $25 if they send it back. You will get a much higher response rate.
Tracey Davies, partner, Gibson, Dunn & Crutcher, Dallas: In my experience, jurors are more likely to provide candid feedback to lawyers that have established a rapport with them and earned their trust. Conduct yourself in a way that cultivates respect and trust by the jury. Lawyers have the opportunity to do this from the first moment they are observed by a juror, which may include being polite to the unidentified person you see in the parking lot prior to entering the courthouse on the first day of trial. Voir dire and the trial, of course, provide a continuing opportunity to establish oneself as credible and someone a juror would want to talk to. In terms of feedback related to the trial itself, in my experience only the jurors that want to talk with the lawyers remain to be interviewed. They have something to say about the experience. Thank them for remaining to provide feedback and for their service, and ask an open-ended question about their experience to start the conversation. Once they begin talking, you will undoubtedly have specific questions you would like answered that, while being respectful of the confidentiality of the jury deliberation process, you can work in to the discussion.