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I want a Mock Jury. Why ain’t you doing that?

November 9, 2011

2. Law, 5. Pre-Trial

I want a Mock Jury.  Why ain’t you doing that?

I’ll do anything.  Love mock juries.  Gonna cost you about $5,000 for an online jury and up to $50,000 for a live one.  I’d much prefer a live one, but will go with online if that’s all you can afford.  Whip that checkbook out!  Let’s get this puppy cranking!

Oh.  I didn’t realize you were tapped out.  That’s alright.  No, the judge won’t pay for it.  We’ll be fine without one.  But let’s discuss it anyway.

Mock juries are used more often in civil cases than criminal cases.  It’s pure economics.  In civil cases, the opportunity is there to score a big win – the more money on the table, the more invested in preparing.  In criminal cases, chances are that the client is not a guy with a huge checkbook.  In my area, upwards of 90% of criminals are PD work.  Further, upwards of 90% of criminal cases plead out.  So the few cases that are left that both go to trial and are funded out of pocket leave little room for big budgets.

A mock jury hears a case just like a real jury would.  Ideally, we’d run through a critical portion of the case precisely as it would happen in court.  We often run through a few variations of that critical part, too.  The most important aspect is the debriefing afterward.  How did you feel about a certain witness’ testimony?  Was the demonstration clear to you?  Did the exhibits make sense?  An attorney isn’t necessarily looking for you to give her advice on how to change an exhibit – what she wants to know is what you learned from an exhibit … she’ll then compare that to what she wanted you to learn.  Yes, your advice may be asked, but wait until asked.

Dealing with a jury is no more than conveying information.  Working with a mock jury is, in part, focused on optimizing that conveyance so that it is clear, leads to one interpretation, and so on.

Jury consultants are hired to help with that process but also with selecting actual jurors.  These folks are number crunchers and sociologists.  Some consultants are attorneys.  They know how people think.  We used this firm in a company from my distant past.  Here’s one of their articles that will give you a feel for the sociological nature of their work.  Here’s another interesting article from another site – but caution, it deals with the Casey Anthony matter.

Here’s an example of advice from DQ (the firm we used to use) on selecting jurors:

How can you use information about non-verbal behavior successfully in voir dire?

Look for inconsistencies: Whenever non-verbal behavior doesn’t match a verbal report, you should be wary of what may be going on. For example, when a juror reports that she has never been harassed on the job, but her non-verbals suggest something less than commitment to what she is saying, this could mean there is a significant experience lurking beneath the surface. Instead of drawing any conclusions however, the appropriate step is to follow up with a question; “maybe you wouldn’t call it harassment, but have you ever felt you received any form of unwelcome attention?” or more directly “tell me if I am wrong, but you look as if you have something more to say about this issue”. Looking for inconsistencies between verbal and non-verbal behavior is the best use of observation behavior during voir dire.

Voir dire – French for “to see, to speak”; Anglo-French for “to speak the truth” – is the jury-selection process.  Jjury consultants work both sides of the trial – juror selection and courtroom presentation.

If you ever get a chance to be on mock jury, grab it.   I don’t know any of these companies, but you could check them out, and maybe get called for a case and earn a few bucks in the process.

Why would I hire a jury consultant?  I want the best out of myself, the best out of my witnesses, the best out of my non-testimonial evidence, and the best profile for a juror.  Unfortunately, a lot of us in the profession get that through hard work and experience – and failure – rather than with paid help.

It’s OK.  I tend to learn things better when they’re slammed against my head like a 2×4.

Now, I’m just thinking out loud here, but maybe we can do this on the cheap.  Six jurors instead of 12.  Pay them $10 an hour for four hours … $240.  Add a few pizzas.  We’re still gonna push $1,000 by the time we’re done, but we could do it.  Get you up there to testify – so you’ll hear that I’m not the only one that thinks you come across as a dick when you talk.  We’ll do the couple versions of Exhibits on the timing issue – we both know the DA is building his case around you being able to run from the store to home in less than five minutes.  Getting the ballistics guy in for that time will cost …

Wanna do it?

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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