Padlock inside of human head draw on blackboard (iStock)
Lawyers can learn a lot from juries after a trial, but approaching jurors and seeking their feedback is an art form.
Jury feedback can be priceless to a lawyer, allowing for better evaluation of future witnesses, budgeting for expert-witnesses spending and deciding how to spend time preparing for trial.
Texas Lawyer interviewed two litigators and a longtime trial consultant about the best way to approach jurors, which questions to ask and what things to avoid when speaking to a jury.
Tyler solo Charles Clark, a plaintiffs lawyer, has taken more than 500 cases to trial. He said he learns more from jurors after a loss than after a win.
“Most lawyers, when you go and you’ve won the lawsuit, they are going to tell you, ‘You’re a great lawyer.’ You don’t learn anything from that,” Clark said. But after a loss, he added, jurors try to “justify what they did.”
For example, Clark has learned to be careful about spending money on expert witnesses. He said he could spend $25,000 for an expert, just to hear jurors later say, “We thought he was a windbag.”
Jurors also don’t always understand the point Clark had hoped would come from the expert.
Clark said he tries most of his cases in state court, where judges allow attorneys to talk with jurors. But that’s not the case in federal court, he noted.
Most federal judges bar lawyers from speaking with jurors, explained Tracey Davies, a partner in Gibson, Dunn & Crutcher in Dallas. But Davies, a patent litigator who represents plaintiffs and defendants in federal court, always asks, because federal judges twice have allowed her to talk with juries.
Davies said she thinks a federal judge acts as a “gatekeeper” for the jury and may fear that lawyers will be “aggressive or overly prying.”
“I think if you can impart some confidence to the judge that that won’t happen, it will probably maximize or increase your chances of talking to the jury,” she said.
Davies said she always shows respect for the jury’s “confidential deliberative process.”
Jury feedback, she said, gives her insight into how critically jurors weighed the credibility of witnesses and the substance of the evidence.
“It’s a good lesson to know, if you are a trial lawyer putting witnesses on,” she said.
Feedback, Davies added, also showed her that graphics are helpful and impressive, however, the graphics she thinks are the best don’t necessarily stick with a jury. She now knows she doesn’t need to spend too much time making them perfect.
“That’s important when it comes to allocating resources on what you spend time doing, particularly in the last few weeks of a trial,” she said.
Doug Keene, a psychologist and the president and founder of Keene Trial Consulting in Austin, said a lawyer should get someone else to contact jurors.
“The No. 1 thing is: Jurors do not want to hurt your feelings,” he said. “You’re going to have a harder time getting candid feedback than someone else making the same call or asking the same questions.”
Lawyers also can use written questionnaires, but Keene said they don’t have a good return rate, and jurors don’t answer them as thoroughly as they answer interview questions.
Keene explained his own approach to interviewing jurors: Start by asking a juror broad questions about his service or view of the justice system.
Then ask specific questions about the evidence, how the juror came to see the verdict, whether either side made things more clear—or confusing—and the juror’s thoughts on the way lawyers questioned witnesses.
“It’s really asking them to replay what that experience was like in the most friendly way you can,” Keene said. “The problem most attorneys have in conducting these kinds of interviews is that the conversation frequently ends up being more focused on how the attorney performed rather than how they [jurors] came to make their decisions.”