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How to Conduct Them and Why They Are Good
Litigation psychology research provides singular and irreplaceable intelligence to the attorney concerning the jurors - reliable information unavailable from any other source. It is developed through the planning, orchestration, and statistical analysis of such activities as litigation intelligence surveys (pre-trial polling), mock trials, jury simulations, jury focus/mini-focus groups, simultaneous juries, and post-verdict interviews.
Post-verdict interviews represent a key component of the litigation psychology research mix. They consist of carefully structured, planned, and monitored interviews conducted of the jurors shortly after the trial is completed. The interview sessions may focus on numerous topics - the jurors' evaluation of witnesses in terms of credibility, coherence, and impact, juror interpretations (or misinterpretations) of the factual issues, plus their evaluation of opening statements and closing arguments, effectiveness of trial presentation graphics, and so on. Post-verdict interviews identify the case theories that work with jurors, along with those that don't. Plus, they are excellent for future strategizing and planning regarding cases to be appealed or similar cases to be tried later.
Post-verdict interviews are, without doubt, the single most useful tool available to determine how the jurors feel concerning how the attorney performed during trial. They function as a valuable "reality-check," providing information regarding precisely how the attorney came across in the courtroom - detailing the strengths and weaknesses of his or her presentation style, courtroom demeanor, and advocacy skills. They act as a highly useful barometer to grade the attorney and specific aspects of his or her case according to the legal profession's most important criteria - the rendered opinions of jurors.
When to use
Post-verdict interviews should be employed by all attorneys who want to improve their skills as courtroom advocates. Just as a person periodically goes to the doctor's office to get a medical check-up, the attorney should regularly request juror feedback through post-verdict interviews to ensure that his or her courtroom skills are not getting stale. In particular, post-verdict interviews are necessary if attorneys are surprised at some aspect of the verdict; if the verdict will be appealed; or if there is a strong likelihood of multi-district litigation concerning similar trial complaints from other plaintiffs in different venues. I advise my clients that the best way to keep their advocacy skills honed to a razor's edge is to employ post-verdict interviews after every major trial.
Jurors enjoy being interviewed
Jurors are like everyone else - they enjoy being the focus of attention and of expressing their opinions and feelings regarding what they thought of the case and why they voted as they did. This is particularly true in the case of jurors who have been involved with long and complex cases. Indeed, many jurors have a strong psychological need to "decompress" after the experience of a lengthy, drawn-out trial. Post-verdict interviews can be extremely helpful in this regard. Through the value of gentle but targeted questioning, post-verdict interviews enable the jurors to put the case in clear and understandable perspective in their minds. Plus, post-verdict interviews can provide a much needed cathartic release for jurors. As such, they perform a highly valuable service the jurors can find nowhere else.
Post-verdict interviews are under-utilized
It is ironic that many attorneys who normally leave no stone unturned when it comes to preparing their cases often fail to utilize the one tool that provides the most accurate gauge regarding the case in terms of its uncontestable impact on jurors - post-verdict interviews. This is extraordinary because post-verdict interviews offer attorneys a virtual cornucopia of accurate, indeed, irrefutable, litigation intelligence information.
Benefits of post-verdict interviews
Post-verdict interviews provide immediate feedback about the case and its presentation. They enable the attorney to secure answers to key questions necessary to understand why jurors reached the verdict they did. They examine the jurors' thinking processes, detailing what jurors think about the case, why they believe as they do, and which type of jurors feel a specific way about the case. In short, post-verdict interviews show what works and what doesn't in terms of case presentation - absolutely invaluable intelligence for future case planning and strategizing.
Post-verdict interviews explore the jurors' value beliefs
Attorneys can use post-verdict interviews to isolate and examine the jurors' key value beliefs - the basic criteria by which jurors evaluate primary trial issues. Many attorneys mistakenly believe it is demographics - age, sex, race, religion - that represent the vital pre-determinants regarding how jurors evaluate cases. This is fallacious thinking and illustrates what I refer to as some attorneys' "demographic dependency." Psychologists know that stereotypes concerning demographic groupings are usually wrong. People's attitudes and beliefs are not merely a function of gender, age, ethnic group, and so on. Not all blacks are liberal, nor all women compassionate. Many business executives have strong social consciences. Many social workers do not. In short, it is not demographics, but instead value beliefs, that lead jurors to the verdicts they choose.
Value beliefs represent a person's core convictions - "a person is responsible for his or her actions," "abortion is murder," "life is unfair," "a mother's duty is to her children," "everyone cheats on his or her taxes, so that makes it OK."
Along these lines, when did you ever hear a juror state during a post-verdict interview that she decided the case as she did because she is a "middle-age Lutheran female college graduate and mother of two from the Midwest?" Instead, she probably would have commented in some manner about her "feelings" or "beliefs" (read: value beliefs) concerning the verdict she reached.
Peoples' value beliefs are the primary prisms through which they view the world. From value beliefs come attitudes - the jurors' predilections and biases concerning how they filter and weigh evidence during trials.
Other worthwhile information revealed
In addition to enumerating the jurors' value beliefs, post-verdict interviews provide the attorney with much additional valuable information concerning the jurors' thinking and perceptions regarding the following topics:
Post-verdict interviews provide the most bona fide evaluations of attorney effectiveness available within the legal profession today. They let the attorney know how he or she performed in court in terms of the actual case presentation, along with what was communicated on a subliminal basis to the jurors about the attorney as a person. They provide a thoroughly objective viewpoint that can detail, specifically and precisely, how the attorney did in court in various key areas:
Post-verdict interviews shine a very bright spotlight on the attorney, illuminating his or her courtroom strengths and weaknesses. These include the attorney's most winning characteristics, along with any visible (or sometimes not so visible) warts. Thanks to this objective analysis the attorney will know what positive personal and professional traits to embellish, and which annoying mannerisms and/or other negative style points to eliminate, or at least minimize.
Post-verdict interviews excellent for class-action suits
One of the primary advantages of post-verdict interviews is the worthwhile information they provide for class-action suits and multi-district litigation. Through such interviews attorneys can secure immediate feedback concerning the strengths and weaknesses of the typical class-action suit. This valuable intelligence can then be utilized in similar cases to be conducted in other venues later. Attorneys handling subsequent cases will be in the catbird's seat regarding planning effective overall defense strategies. Plus, they will be able to make more qualified judgments regarding avoiding probable no-win litigation down the road.
Post-verdict interviews work. Time and again in my practice I have seen attorneys incorporate feedback from post-verdict interviews to successfully present and win cases on appeal that were lost earlier; and to be successful in multi-district litigation concerning trial issues and complaints similar to the first case tried.
To be effective, post-verdict interviews must be conducted in a professional manner. Hurried conversations with jurors in the hallway after the trial is completed are unlikely to provide any useful information. Indeed, this type of exchange is often viewed as an infringement on their own personal time by busy jurors, anxious to leave court and return to their daily lives. The best approach is to wait a few days before contacting jurors, allowing them the time needed to re-establish their normal routines.
Post-verdict interviews can be conducted over the telephone; by person-to-person meetings; during group sessions in which all the jurors participate; or through a combination of these methods. I prefer to organize group sessions because these often mirror deliberations and thus shed valuable light on the overall deliberative process. At the same token person-to-person interviews can be helpful in establishing rapport and helping individual jurors reveal sensitive issues.
My firm conducts many of our clients' post-verdict interviews on the "Port-O-Court," a large and luxurious yacht we own and dock in Ft. Lauderdale. The "Port-O-Court" has been retrofitted into the world's only fully equipped floating mock courtroom. The atmosphere for jurors is informal and relaxed, thus enabling them to discuss cases in a frank and full manner. Attorneys are able to observe the proceedings via large video monitors set up throughout the yacht. All sessions are fully videotaped for later review. We also sometimes invite jurors to our firm's offices for post-verdict interviews. Here attorneys can watch the proceedings through two-way mirrors. Interview sessions conducted at our offices are also videotaped.
Another excellent location to organize post-verdict interviews is a private room in a restaurant. The interviews can be conducted during or immediately after the meal. If you decide to utilize this approach, you will need to bring a portable camcorder for video recording purposes.
It is always a good idea when conducting post-verdict interviews through group sessions to buy jurors lunch or dinner prior to the commencement of any interviewing activities. Such a gesture predisposes jurors to a cooperative and relaxed frame of mind for the interviews to follow.
Conducted by neutral parties
It is essential that jurors perceive the person conducting the post-verdict interviews as a neutral party. If not, there is a strong likelihood that jurors will provide socially acceptable responses they think one side or the other wants to hear. This is why trial consultants with backgrounds in psychology often are selected to handle post-verdict interviews. Such professionals are trained to design reliable and valid questions that increase the likelihood of truthful and honest responses, as opposed to those that promote only social conformity.
Note: Jurors who are curious about which side is sponsoring the interviews can be informed of this fact after the interviews are completed.
The person conducting the interviews must possess in-depth knowledge concerning the case and its particulars. He or she should review the trial transcript, judge's instructions and verdict form, and also be completely familiar with the sponsoring attorney's trial tactics and strategy in order to plan the most effective questions.
I have found that it is helpful to structure the interview sessions so they parallel the actual trial order - i.e., questioning jurors first on their impressions of voir dire, then opening statement, the overall case presentation (including the introduction of evidence, witnesses, trial graphics, and other presentation materials), closing argument, and finally, deliberations.
The most effective questioning
Questioning jurors during post-verdict interviews represents both an art and a science. The interviewer must know how to ask the right questions, carefully listen to the answers provided, then evaluate what is most important. It is only through such educated and intelligent probing that the interviewer will be able to develop the most useful feedback material for the attorney. This is another good reason trial consultants with psychology backgrounds often are requested to perform post-verdict interviews.
Indeed, questioning jurors concerning the case's primary issues and their reactions to them, carefully listening to the responses given, and then professionally evaluating and interpreting what has been said is a sine qua non of professional trial consulting.
"Open-ended questions" provide the best responses
The best questions to use during post-verdict interviews are those that enable the jurors to elaborate on their responses - i.e., open-ended questions. A question posed that asks a juror if he or she liked a particular witness is liable to result in only a "yes" or "no" response. But a question inviting the juror to discuss his or her impressions of the witness, and to detail what he or she learned from that individual, will elucidate far more extensive and revealing information.
Questions used during post-verdict interviews must be carefully weighed to prompt the most meaningful responses
Words have different meanings for different people, and these differences can be significant. This is why it is important that questions posed to jurors during post-verdict interviews be carefully planned ahead of time. Questions focussing on the same issue can engender far different responses depending on how they are structured.
For example, the Washington Post reports that a poll in December 1998 regarding the impeachment of President Clinton asked half the respondees if they believed the president should resign if he were impeached, or should "fight the charges in the Senate." The other half of the sample were asked this question: should Clinton resign if impeached or should he "remain in office and face trial in the Senate?"
While the questions are basically the same, the answers proved to be much different. Responding to the first question, nearly six in ten - 59 percent - of those polled indicated that Clinton should resign instead of fighting the impeachment charges. But only 43 percent of respondees to the second question believed Clinton should resign when the alternative was to "remain in office and stand trial in the Senate."
The disparity between the attitudes of the two groups polled concerns the word "fight," which has negative connotations. It brings up images of warring armies, bloody boxers, sparring spouses, and combative, angry people contending in unseemly fashion with each other. In this context it is understandable that more Americans would want Clinton to step down if a "fight" is involved. But when the alternative is less bellicose - standing trial in the Senate - Americans are less eager to see the president resign his office.
Along this line, questions asked during post-verdict interviews should be carefully structured to avoid ambiguity or confusion in any responses provided. For example, asking jurors if the opening statement "swayed" them could be problematic because some jurors may read this as indicating they were "manipulated," and would thus respond negatively. Asking what the jurors learned during the opening statement will likely generate more meaningful responses.
Court attitudes toward post-verdict interviews
Many judges regard post-verdict interviews as valuable activities that help raise the overall level of courtroom advocacy. Consequently, such judges often heartily approve of post-verdict interviews, with many going so far as to actively promote them to jurors at the end of trials. Other more conservative judges look askance on any efforts to interrogate jurors after trial, worrying that such activities could be construed as intimidating by jurors, and thus possibly inhibit unbiased deliberations in future trials.
Of course many jurisdictions, particularly at the federal level, do not permit post-trial interviews of any type. In other federal courts the prerogative of the court to supervise any post-trial interviews is mandated by court rules. Certain states, Florida being one of them, do not allow attorneys to conduct post-verdict interviews, but non-lawyers such as research psychologists are permitted to do so.
If you want to know whether it is OK to conduct post-trial interviews, the best bet is to always check local court regulations regarding their permissibility of use. If such interviews are allowed, it is not necessary to request the approval of a judge to organize this type of litigation research activity.
The old problem of attorney perspective versus juror perspective is widely acknowledged. What's important to the attorney during the trial may prove to be of little interest to the jurors during deliberations. And while the attorney may be certain that critical legal issue "A" is the one upon which the verdict turned, the jurors may instead have decided the case on the basis of critical non-legal issues "B" or "C" (or, for that matter, issue "Z," which did not even show up on the attorney's radar screen).
This is why post-verdict interviews are so important. They let the attorney know what the jurors believe was truly important about the case. Often this proves to be far different from what the attorney thought it would be. Post-verdict interviews provide invaluable insights into "jury-think" as opposed to "lawyer-think." As such, they help educate the attorney regarding the most telling criteria by which to judge the case and its many particulars - the unbiased opinions of jurors.
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