Tuholski Litigation Consulting LLC
Tuholski Litigation Consulting LLC

Jury Selection… Are You Doing It Wrong?

When I’m called in to assist with jury selection, the first question I’m often asked by attorneys is “which jurors are going to be good for us?”  This question always puzzles me, because jury selection is actually about deselecting bad jurors.  Sure, knowing what jurors are “good” for us is important as far as it goes, but considering the fact that the best jurors for us are likely to be struck by competent opposing counsel, what we need to do is focus on identifying and eliminating the jurors that are more likely to not adopt the themes and arguments of our case based on personality, cognitive and other factors.  The important question then is, how do we identify the bad jurors?  Below, we list a few strategies to keep in mind during jury selection.

1.  Don’t Focus on Demographics

Let’s start with how not to identify bad jurors… by focusing on their demographic information.   Demographic information is typically easy to gather and may be supplied by even the most difficult Judges/Courts, but what does it tell us?   Demographic information such as age, gender and race tell us very little about a prospective juror, despite the hunches and gut feelings and “experience” people attribute to these characteristics.  Research shows consistently that these demographic variables are not particularly important in terms of a juror’s ultimate verdict disposition.  Why?  Demographic information is akin to the surface features of an iceberg.  These features may look important and impressive, but it is what is beneath the surface that ultimately affects verdict dispositions.

Effective jury selection must focus on understanding the underlying characteristics of our prospective juror’s in terms of their beliefs, experience, and intellectual curiosity among other factors.  Demographic factors that speak to a person’s experiences and attitudes, such as their employment, education and political affiliation are more likely to yield information that is important, but again we have to caution against over-weighing this information in jury selection.   For example, although a cursory viewing of MSNBC and Fox News may make us feel like “liberals” and “conservatives” are perfectly mutually exclusive in terms of how they view the world, this is simply not the case.  Men may be from Mars, and Women may be from Venus… but that does not mean that all men think one way and all women think another way, despite nonsensical pop psychology books tell us.  The more we can get jurors to talk about their life experiences and beliefs that are relevant to our case, the more likely we are to shed light on the potentially bad jurors.

2.  What to Focus on During Voir Dire

Obviously, jurors’ responses to voir dire questions are important and should be considered and weighed appropriately.  However, jurors will also tip their hands somewhat in their non-verbal communication, and a lot can be learned from these non-verbal cues, if you know where to look.   Is a particular juror eagerly answering a lot of questions?  Is a particular juror looking more disinterested than what we might expect from the average person during jury selection?  When a juror answers a question, do they make good eye contact, or do they look down/around?   When asked a direct question, does the juror hedge with their answer?  Taken together with the content of their responses, non-verbal responses allow us to paint a more full picture of the juror in terms of the credibility/veracity of their answers, as well as their potential to be leaders on the jury. 

In a recent case, one of our potential jurors was a middle-aged man who worked professionally as an engineer.  From a demographic point of view, he was the perfect juror for us, but during voir dire, his non-verbal communication conveyed a very clear “I do not want to be here”, which created a potential problem when it came to our peremptory strikes.  However, this juror eventually indicated quite strongly that he did not think that corporations should be treated as people, and when challenged by the judge whether or not he could be fair, hesitated and hedged enough that he was ultimately dismissed for cause.

3.  Consider the Gestalt

When making deselection choices, it’s important to not just consider the individuals that we are concerned with, but also the overall panel that is likely to be seated.  In Psychology, “gestalt” refers to the notion that the whole is greater than the sum of the parts, and as such it’s important to not just focus on individuals, but rather, how the group will work together to reach a verdict.  Consider, who do you think will be struck by opposing counsel?  How does that affect the panel composition, and does it change who you may want to strike?  With two different jury panels to strike/deselect from, your opinion of certain people may be different depending on their peers.  In a recent case, I suggested leaving on a juror that would typically be struck by a defense team given our case, but in this particular case I believed his negatives would be strongly overwhelmed by the people we were confident opposing counsel would not strike.  As it turned out, the juror that was left on the jury became the foreperson and brought back a defense verdict in less than an hour.  Had we done an analysis simply on an individual by individual basis, it’s likely we would have used a peremptory strike on this juror.

4.  Organization

Jury selection has a lot of moving parts, and much to attend to.  Organization is key to success, and by organization we don’t just mean a simple seating chart and some highlighters.   It’s important to know exactly what we should look for during jury selection, because there is a lot of noise in the situation, and if we focus on the wrong things, we may miss something important.   I recently worked on a case where one of the potential jurors was clearly a “good juror for” us.  The case involved some complex financial documents, and this juror had a strong business background and was articulate and eager to answer voir dire questions.  She was so good for us in fact, I considered her to be the plaintiff’s first strike.  However, an interesting thing happened… during a break, the juror apparently met with a Court official who conveyed to the Judge that she was having severe anxiety about sitting on the jury.  I never knew the full story, but the Judge excused her from the panel, and replaced her with another juror.  The replacement juror turned out to be pretty middle of the road, seemingly neither good nor bad for either side.  When both sides submitted their peremptory strikes to the Judge, I was shocked to learn that this new middle of the road juror was struck by opposing counsel.  On the surface, this made no sense… but then it occurred to me.  Somehow opposing counsel must have lost track of their notes and thought that the woman in that seat was the original juror who was clearly a good juror for the defense side.  What a gaff!  The point here is that even the most skilled attorneys can make very simple mistakes when not properly organized and focused during jury selection, so it’s critical to lay out a plan in advance and stick to it. 

 

Tuholski Litigation Consulting, LLC is a full service nationwide trial consulting firm with offices in Oklahoma City and Dallas.

 

 

 

Bayesian Simulations… A New Way To Look At Financial Exposure In Litigation

In our last two posts, we discussed the concept of the “expected value” of your case and how those values are affected by non-legal factors.  In this post, we will discuss proprietary methodology developed by Tuholski Litigation Consulting that can be used in assessing a client’s financial exposure in a way that is different than the way virtually all trial consultants think about this topic.  This methodology is particularly effective when considering the risks associated with taking a case to trial and verdict, as it more accurately captures the universe of possible verdicts in a quantifiable way.

Before describing the methodology developed by Tuholski Litigation Consulting, let’s consider the various ways counsel could assess their client’s potential exposure when bringing a case to a jury verdict.  Our experience indicates that there are at least three methods, in increasing order of accuracy, that counsel could use to assess their client’s exposure:

1.  Gut feelings/hunches/personal experience

2.  Archival verdict searches

3.  Mock trial

We should note that our intention here is not to dismiss an experienced trial counsel’s feelings about their client’s exposure, but rather to illustrate that there are ways further narrow our predictions as to an ultimate jury verdict.  Further, to the extent that case facts and witnesses are idiosyncratic, experience and archival searches lose predictive value.  A well-conducted mock trial in which there is well developed damage arguments for both sides is an effective way to gain an understanding of a client’s potential exposure.  The problem that we have seen in the consulting industry is that most consultants do not have the background training and experience to treat and analyze the data in a way that is truly informative and ultimately predictive of a trail outcome.  Let’s discuss an example:

Consider a case in which plaintiff seeks damages in the amount of $2 million, and the case is researched through a mock trial with three deliberating jury panels that ultimately return verdicts of $500,000, $800,000 and $1.4 million in damages for the plaintiff.  This is typically where the “damage analysis” ends with most consultants… but what should counsel do with these numbers?   If opposing counsel subsequently offers a settlement in the case for $800,000, how do the data from our hypothetical mock trial inform counsel?

Tuholski Litigation Consulting has developed a more effective way to examine damages data, based on Bayesian statistics.  In a nutshell, the purpose of Bayesian analyses is not to predict any one data point (for example, what a jury would award in your case), but rather a probabalistic range of possible outcomes.  By collecting some additional data and applying proprietary algorithms, we are able to turn the simplistic data above, into a much more rich and informative analysis as illustrated below:

These data can also be captured in tabular form, such as below:

Verdict In Thousands

Percent Over

$716.68

90

$805.79

80

$925.27

60

$1026.52

40

$1146.00

20

$1235.10

10

Let’s reconsider the question that was posed earlier, if opposing counsel offered an $800,000 settlement, what should your client do?  According to our new analysis, it is clear that this settlement is undervalued because it’s likely that approximately 80% of the time a jury would come back with a verdict higher than approximately $800,000.  As such, we should seriously consider accepting the settlement offer.  Conversely, if opposing counsel proffered a $1.1 million settlement offer, we should seriously consider rejecting that offer, because according to our analysis there is only a 20 percent chance that a jury would return a verdict for that amount or higher.

Our approach also let’s us model and simulate various scenarios that capture the effect of what we consider a bad venire as well as what to expect if particularly bad jurors are seated.  For example, by adjusting certain weights in our algorithms, we can simulate what jurors in a particularly bad venire might do with our case.  Again, these simulations are based on the exact same data as we discussed above.   

Verdict In Thousands

Percent Over

$832.22

90

$920.48

80

$1038.84

60

$1139.14

40

$1257.49

20

$1345.76

10

Using the same data set as before, we’re now able to gain a better understanding of the effect of a trying our case in a particularly bad venue.  Clearly, there has been a shift to the side of a larger verdict, and there is also more variability in the data.  If we could reasonably assess that we have a bad jury and were able to make a settlement offer for $1 million, for example, these data demonstrate that would be a good deal for us.

However, we can go one step further.  What if we knew that we have several bad jurors on our panel, perhaps because we we not afforded the opportunity to strike them?  We can also simulate these effects, and again, these simulations come from the exact same data set as we’ve used throughout this example.

Verdict in Thousands

Percent Over

$1122.84

90

$1163.64

80

$1218.35

60

$1264.72

40

$1319.43

20

$1360.23

10

Suddenly, that $1.1 million settlement offer looks pretty good.

The Damage Simulator developed by Tuholski Litigation Consulting has a unique value in the trial consulting field, as it allows clients and those working within a litigation risk-analysis environment to have greater understanding of the true risk of taking their case to a jury, which ultimately allows clients to make more informed settlement decisions.

 

Tuholski Litigation Consulting, LLC is a full service nationwide trial consulting firm with offices in Oklahoma City and Dallas. 

 

 

 

 

 

 

 

 

 

 

How non-legal factors affect the value of your case

In our previous post, we describe the concept of Expected Value and how that applies to litigation, and argued that if counsel is in a position of solid understanding of the Expected Value of their case, they are in a position of strength during mediation and other settlement discussions.  In this post, we’ll discuss the non-legal factors that ultimately affect the Expected Value of your case.

Before our discussion of the non-legal factors that affect the value of your cases, we have to concede that the largest determinant of the value of the case are the facts and evidence that will be presented to the jury.  John Adams words in 1770 are as true now as they were then:

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

To the extent there is objective evidence that has little room for interpretation, the Expected Value of your case is likely to have very little wiggle room.  An example that comes to mind (although it was a criminal case, Expected Value here is on a different scale) is that of the insider-trading prosecution of billionaire hedge fund manager Raj Rajaratnam last spring.  The crux of the government’s case was that Mr. Rajaratnam was receiving inside information from various people on various Boards of technology companies, and subsequently trading on that information.  There were several “smoking guns” in the case, in which the prosecution was able to demonstrate to jurors that they had a phone-tapped conversation between Mr. Rajaratnam and an “insider” in which the insider gave Mr. Rajaratnam information coupled with trading data that demonstrated that Mr. Rajaratnam traded in or out of that particularly stock sometimes in the minutes after getting off the phone.  Defense counsel attempted to demonstrate and argue that the information that Mr. Rajaratnam was receiving was public information anyway, so there was no insider trading per se, but ultimately the jury didn’t buy that approach and instead found Mr. Rajaratnam guilty on 14 counts of conspiracy and securities fraud, and ultimately sentenced to serve 11 years in prison.

More often, however, there is room to improve the Expected Value of your case in terms of your exposure at trial or during settlement negotiations.   An area where Expected Value can be affected greatly is the area of witness performance.  Here, we do not mean what the witness says on the stand per se, but rather the manner in which the witness delivers their testimony.   Particularly in more complicated litigation such as IP litigation or securities matters, jurors are unlikely to be able to digest and comprehend complicated testimony, as they simply do not have the time to nor cognitive capacity for such an exercise.  Ultimately, we want our jurors to understand our case, but the exercise of presenting that case through an expert witness testifying about complex technologies is akin to giving the jurors a crash course on a complex subject without the benefit of asking questions or forming a study group.  It’s simply naive to expect jurors in these conditions to fully grasp the most technical and complicated aspects of witness testimony, which creates a serious problem for us… that is, if the jurors are not able to accurately understand complex testimony, what do they use to make their decisions?

Implicitly and sometimes explicitly, jurors will rely on their feelings of HOW a witness testified as much as on the testimony itself.  Did the witness make good eye contact with the jury?  Did they attempt to explain the information in a way that the lay person could understand, yet do so not in a condescending way or did they come across as a stuffy academic?  Did the demeanor of the witness change from direct examination to cross examination?  Was the witness fidgety?  Perhaps the most important question… during cross examination, who won the exchanges, the witness or the adverse examining attorney?  Jurors will score these exchanges, and during deliberations when they are trying to determine which side had more credible evidence, they will use these internal scorecards as their guides.  Clearly, a lot can rest on how jurors simply feel about witnesses.

Obviously, another factor that is outside the legal aspects of the case is the actual seated jury.  Although it’s theoretically possible to consider an Expected Value for any case, that value is ultimately determined by the psychological (note, not demographic) makeup of the seated panel.  Clearly the Expected Value of a case goes up to the degree that plaintiff-friendly leadership-oriented jurors are on the panel, which is exactly the reason why they should be identified and struck from the panel (if you’re a defense attorney).  The question is how to effectively deselect the jurors that would increase (or decrease if you are a plaintiff attorney) the Expected Value of your case.  That’s an issue we’ll tackle in another blog.

Let’s circle back to the concept of Expected Value and how that can be affected by non-legal factors.  We can assume, rather conservatively, witness performance and the psychological characteristics of the jury account for about 10% each of the Expected Value of the case.  Consider an example of a case where the exposure is $2 million, and you believe you have a 50/50 chance of winning the case, so the Expected Value is $1 million (EV = (.5 x $2,000,000) + (.5 x0$) = $1,000,000)*.  If we are able to maximize the performances of our witnesses (which is possible) and our jury panel (which is possible, but more difficult), we may increase our chances of success at trial by 20%.  The economic effect is not trivial, as our new Expected Value would be (EV = (.3 x $2,000,000) + (.7 x $0) = $600,000)).  Maxing out our witnesses and jury panel in this example resulted in a $400,000 reduction in Expected Value.  Even if we considered the effects of witness preparation and jury selection to be smaller, say 3% each, we would see a non-trivial change in Expected Value (EV = (.44 x $2,000,000) + (.56 x $0) = $880,000)). 

In our next post, we’ll discuss how to more accurately asses the Expected Value of a case, with proprietary methodology developed by Tuholski Litigation Consulting.

 

* it should be noted that we appreciate that most litigation is not an “all or none” situation like those described in this and the previous post.  We’ll address this issue more explicitly in our next post.  For now, we want to keep the concept reasonably simple and easy to follow.

 

Tuholski Litigation Consulting, LLC is a full service nationwide trial consulting firm with offices in Oklahoma City and Dallas.

What is the “expected value” of your case?

Taking a case to trial always involves some level of risk and a sense of gambling.  To better manage and understand that risk, it is critical to understand the “expected value” of your case.  For the purposes of litigation, the expected value is a function of your chances of success at trial and the financial exposure in the case.  For example, if you were litigating a $1 million case, and your chances of winning at trial were 50%, the expected value of the case is $500,000 (EV = (.5 x $1,000,000) + (.5 *$0) = $500,000).

To the extent that counsel is able to determine the expected value of their case, they are in a position of power when it comes to settlement negotiations.  Consider an example which is not as even handed as the example above, one in which defense counsel determines that they have a 75% chance to win at trial in a case where $1.5 million is at stake.  Here, the expected value of the case is $375,000 (EV = (.25 x $1,500,000) + .(.75 x $0) = $375,000).   If plaintiff’s counsel makes a $650,000 settlement demand, that demand should be rejected, because it represents a value that is much higher (and presumably higher than the costs to continue with the litigation) than the expected value of the case.  Conversely, it should be considered a “win” if defense counsel is able to effectively negotiate a settlement agreement for less than $375,000 plus the anticipated costs of continuing with the litigation.

One can observe how expected values are used in real financial decisions by simply watching a broadcast of poker on television.   In poker, whether one bets or folds is determined by assessing the odds that your hand (which is known) is better than your opponent’s hand (which is not known).  A skilled player may make substantial bets even if they think they don’t have the best hand, because the expected value of those bets is positive.  That is, they have enough chance to win the hand and the amount of money they can win is large enough to justify a substantial bet.   It’s probably not surprising that some of the best poker players in the world are highly skilled at mathematics and probability theory, as these decisions must be made rather quickly with very high personal stakes.

Although similarities exist between poker players and litigators and their assessment of risk, important differences exist as well:

  • In poker, the psychological hurdle is determining what cards your opponent holds, and then betting and reacting to bets that are appropriate in terms of expected values.  The easy part is knowing who has the best hand when all the cards are on a table.  A flush will always beat a straight, and there is nothing subjective about the assessment of the two hands.
  • In litigation, the problem is a bit different.  Here, everyone knows each others “hand” while the game is being played.  The difficulty is in terms of assessing the strengths and weaknesses in each hand, which are inherently subjective and determined by a third party (i.e., a jury, judge, arbitration panel, etc.). 

Thus, the challenge for litigators is to accurately determine the financial exposure of their case, as well as their chance of success at trial.  To the extent that this information can be reliably determined, counsel will be in a position to better manage their litigation risk. 

In our next blog, we’ll discuss factors that contribute to both financial exposure and probability of success at the jury level.

 

Tuholski Litigation Consulting, LLC is a full service nationwide trial consulting firm with offices in Oklahoma City and Dallas.
 

 


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