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In selecting a jury and shaping how a case is presented at trial, it is extremely helpful to know the demographic, attitudinal and experiential characteristics of the actual venire. Voir dire is a highly imperfect tool for obtaining this information, however. Accordingly, in our experience, where the case budget permits it, trial counsel is wise to have pretrial jury research conducted, not only to enhance counsel’s understanding of the likely venire, but also to assist in identifying, in advance, potential jury biases and prejudices concerning the case. Jury research is conducted through telephone surveys, focus groups and simulated jury trials, among other techniques. Telephone surveys are relatively easy to conduct once the themes of a case are clear. These surveys enable counsel to gain insight into the participants’ reactions to important aspects of a case well before trial begins. Focus groups usually involve a summary presentation of issues or themes, followed by a series of questions for the participants. A moderator from the research firm leads the participants’ discussion, which is transcribed and videotaped for further review. Mock trials simulate actual trials, often with special attention to the impact of opening statements. Attorneys present both sides of a case in a debate-like format. Witnesses may testify either live or on screen. The participants then deliberate as a jury to reach a verdict, enabling counsel to observe, among other things, the impact of group decision-making. Several different juries are typically used to provide more informative results. As with focus groups, a transcript and videotape are prepared. In selecting the participants for these exercises, jury research firms attempt to create a group that reflects, or is representative of, the demographics of the likely venire at trial. RESEARCH AIDS PRESENTATION Jury research is often most useful in assisting counsel in shaping the presentation of a case. This is particularly true when the trial will take place in a jurisdiction where counsel has only limited familiarity with the jury pool. Jury research can assist counsel in testing his view of what persuades, interests and confuses a jury; how a key witness will be perceived; which evidence should be emphasized; and what the overall strengths and weaknesses of the case are. Jury research can be used to assess the level of comprehension of technical evidence � a common concern in patent infringement, antitrust and other complex trials. Most importantly, it can be used to evaluate the persuasiveness of the themes on which counsel is planning to try his case. An effective theme � a “truth” that emerges from the facts and motivates the jury to vote your way � must have two qualities. It must appeal to the kinds of people on the jury based on their experiences and moral groundings. And it must be simple, particularly in a factually complex trial extending over many weeks. Jury research is a helpful tool for gauging a theme’s success on both measures. Jury research can also be of some value in determining whether a case should be resolved through settlement or a plea agreement. Counsel should be mindful, however, that focus groups and mock trials necessarily involve a small sample of prospective jurors and cannot fully take into account the effect of a judge’s decisions and the performance of witnesses during trial. Some trial lawyers put little stock in using research to assist in picking a jury. In their view, it yields theoretical results that are difficult to apply in practice because prospective jurors can have conflicting indicators � a favorable job status and an unfavorable party affiliation, for example � or lack a sufficient combination of the profiled characteristics to give the research predictive value. According to lawyers in this camp, there is no substitute for digging into the attitudes, beliefs, experiences and values of members of the venire during voir dire. We understand the limitations of jury research. The problem, however, is that determining solely through voir dire whether a juror is biased or has prejudged a case can be difficult. The juror may be unaware of the prejudice or too embarrassed to reveal it when questioned before an authority figure (the judge) and a number of strangers. And voir dire does not always uncover prejudices. Judges are often reluctant to allow questions that probe deeply jurors’ personal beliefs and attitudes. Moreover, many jurisdictions limit trial counsel’s participation to the submission of written questions for the court’s consideration. In these circumstances, a judge’s follow-up questions may be less effective than counsel’s would have been because the judge knows only a small fraction of what the attorneys know about a case and is thus less able to spot many indirect routes for uncovering subtle bias. An additional problem is that, depending on the way in which voir dire is conducted, an attorney will not know which prospective jurors will be replacing the ones whom the attorney is considering striking. Where knowledge obtainable through voir dire regarding prospective jurors is limited, jury research � particularly juror profiles developed through larger survey sampling techniques of hundreds of participants � can provide useful backup. Unless trial counsel has jury research in his file, he is forced to rely only on his own private judgments about how jurors are likely to be biased based on their demographic and personality characteristics. USEFUL TOOLS Even for attorneys who have tried a number of cases and thereby have substantial experience in picking juries, it is helpful to use the tools of social science to test an attorney’s predicted associations between particular traits and behaviors. After all, empirical research on the jury by academicians provides a basis for questioning many of the claims typically made by attorneys about jury behavior. See, e.g., Shari Seidman Diamond, “Beyond Fantasy and Nightmare: A Portrait of the Jury,” 54 Buffalo L. Rev. 717 (2006) (.pdf). And in our experience, jury research for actual trials often turns up a surprise or two about potential jury bias that contradicts common-sense expectations and lawyers’ rules of thumb. DEMOGRAPHICS V. RESPONSES Experts in jury research dispute whether demographic characteristics, on the one hand, or a juror’s responses to voir dire questions concerning attitudes and experiences relevant to issues in the case, on the other, are better predictors of the juror’s response to a case. In our view, it is useful to attempt to obtain both. Knowledge of directly relevant attitudes and experiences is generally more helpful. However, this information can be difficult to obtain, for the reasons discussed above. Demographic factors benefit from being more objective (a prospective juror either works as an engineer or he does not) and easier to obtain. Sometimes the only information trial counsel will have about a prospective juror’s attitude is demographic information. Good facts and good lawyering decide more cases than favorable juries. That being said, picking a jury is one of the most crucial stages of a case, particularly given that a serious mistake about a single panelist can change a verdict. Where possible, counsel should consider arming himself with pretrial research in order to increase his chances of identifying juror bias during voir dire and to assist him in tailoring the case’s presentation to the jury. Dan K. Webb and J. David Reich are partners at Winston & Strawn who concentrate on civil, regulatory and white-collar crime cases. Webb, the firm’s chairman, previously served as the U.S. attorney for the Northern District of Illinois. Reich, based in New York, previously served as an assistant U.S. attorney for the District of New Jersey. This article originally appeared in Legal Times, a Recorder affiliate based in Washington, D.C. Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected].

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