Lawyers usually hate jury selection. Not only does voir dire provide limited time and information to identify jurors who will decide the fate of their clients, but it directly confronts attorneys with a problem they have in communicating complex cases to today’s demanding and skeptical juror: that jurors and attorneys think and communicate in completely different ways.
Lawyers care about an expert’s credentials, how the expert’s opinions support their case, and the expert’s ability to withstand cross-examination. Experts care about their reputation and how to balance objectivity with assisting their client’s case. Jurors just want to figure out what the heck is going on.
Often, when conducting research on verdicts or preparing for trial, we turn to statistics to better calculate risk. We look up previous cases and examine their outcomes. We ask other attorneys about their verdicts. Sometimes, we even conduct statistical jury research to build a jury profile for use in jury selection.
However, even armed with such information, incorrect estimations of risk happen more than we may think.
Juries routinely dismiss expert testimony due to credibility problems, incomprehensibility, or simply because it is cancelled out by another expert’s testimony.
This leads to a number of important questions for the attorney and the expert in presenting testimony at trial. What exactly is credibility? Is an expert an advocate? How objective is an expert supposed to be?
All litigants on both sides of the aisle have been squeezed by the exponential complexity of litigation and the accompanying time and expense of discovery and trial. But while this strain causes some parties to settle cases rather than deal with prolonged trial dates, there will always be a place for parties to have their matters resolved by a representative cross-section of the community, and some additional but seldom used remedies are available for those parties who do not want to wait for the courts.
Baseball has a strike zone and the infield fly rule, basketball has personal and team fouls, and in the litigation arena there are pre-trial and in-limine rulings. Litigators understand what playing field they are on and which guidelines they are expected to follow. Jurors, on the other hand, know how to behave as spectators but they usually are not given legal instruction – the rules that guide their verdicts – until the end of the case, and that can be devastating to your argument. Trial consultant Richard Gabriel offers some advice to help make sure the jury understands your rules for the case.
When Casey Anthony was unanimously acquitted earlier this month, a USA Today/Gallup poll showed that nearly two out of three Americans believed she was guilty of murder. How could the court of public opinion differ so drastically from the jury in an Orlando courtroom?
While much has been written and discussed about jury selection, the truth is, we make it much more complicated than it needs to be.
Lawyers USA Columnist Richard Gabriel suggests a few basic steps to simplify the process.
Lawyers USA columnist Richard Gabriel has spoken to hundreds of attorneys, judges and mediators about their mediations and settlements over the past year, and has found that the question of whether to settle or take a case to trial contains a fundamental risk analysis: How can a litigant obtain better information to either resolve a case or let a jury check the boxes on a verdict form? To address these concerns, Gabriel has begun conducting jury mediations.
As with muscular and even intellectual skill, our brains also learn emotions and form our own idiosyncratic pattern of reasoning based on how we grew up and our practiced behaviors. Lawyers USA Columnist Richard Gabriel explores what neuroscience can teach trial lawyers about how jurors use evidence.