BOSTON, MA — After spending the length of a trial staring at a group of strangers who hold the fate of a client in their hands, the last thing lawyers may want to do is sit down and chat with the jury.
But getting jurors’ take on the trial – from the persuasiveness of a closing argument to the credence of testimony – can be invaluable.
Speaking to a jury allows an attorney to “learn what happened during deliberations, how they perceived your witnesses, how they perceived you and your presentation abilities, whether your strategies and themes came across and what was really crucial,” said Richard Gabriel, president of Decision Analysis, a national trial consulting company in Los Angeles and president of the American Society of Trial Consultants Foundation.
John Henry Hingson, a criminal defense attorney in Oregon City, Ore., noted that “lawyers sometimes really miss the boat on what was important to the jury in a case.”
He recalled a case where a juror explained just why the jury found his client not guilty of driving under the influence, yet guilty of eluding of an officer.
Hingson had argued that his client was driving a little motorcycle and it would be hard to drive such a vehicle under the influence. To make his point, he made a joke comparing the defendant’s actions to those of an Arte Johnson character on the “Laugh In” television show riding a tricycle.
It “appealed to those jurors in the September of their years,” Hingson explained. “It was more subtle and nuanced than I had imagined, and a big eye-opener.”
Tips when talking
There’s a difference of opinion as to the best time to approach jurors.
Great Neck, N.Y. medical malpractice attorney Gerald Oginski said he prefers to speak with jurors immediately after trial, when the facts of the case are still fresh in their minds.
But Gabriel advises that waiting for a period of time allows jurors to reflect on the process and their experience and may make them more willing to talk.
“Coming right out of the courtroom – especially with an adverse verdict – jurors may be more hesitant to speak with you out of concern about your intentions,” he said.
It may be also better to have a third party speak to jurors on your behalf.
“Jurors will often soft-peddle their comments,” Gabriel noted. If you really want to hear the “bad and the ugly along with the good,” consider hiring a consultant or using a paralegal or associate.
Oginski said that he tries to ask jurors only open-ended questions that give them the chance to talk and explain their thought process.
You can “find out what the jurors were thinking and what was going through their minds, which is an opportunity you don’t have during trial,” he said.
Gabriel favors a chronological approach, taking jurors from voir dire to opening statements to witnesses to closing arguments and, finally, deliberations.
He’ll focus on deliberations, typically asking jurors detailed questions like, “What happened when you got in the room? How did you go through the evidence? What did other jurors think was important? What did the people who weren’t on your side say? What were some of the things other jurors said or did that convinced or persuaded you to change your vote?”
One thing to avoid: questions that will put them on the defensive.
Don’t ask, “Why didn’t you vote for my client?” Oginski said. Instead try, “What about this argument did you like? Were the judge’s instructions clear? … Did the infighting between the attorneys have any significance for you?”
Ask about “the things that turn their opinion, so you can try to replicate that in the next trial,” he said.
From such conversations in one case, Oginski learned that the jury did not believe his client’s story. In another, he discovered that jurors did not believe the defense’s expert witness.
“They found it very important that I caught him in a significant lie and were very focused on that,” he said.
Play it straight
It’s important not to misrepresent who you are and the reason you are making contact, and to make it clear to jurors that they are under no obligation to speak to you.
Gabriel noted that California enacted a law a few years ago that requires lawyers contacting jurors to make a full disclosure of who they are.
“Make sure to be forthcoming with an explanation of why you want to talk with them,” said Oginski. “Especially in cases where the attorney lost, jurors will not understand why you want to speak with them” because judges don’t explain why lawyers might want to talk when they release jurors from service.
And remember that despite the outcome, speaking with jurors is not the time for sour grapes.
“Attorneys have to simply recognize that the conversation is now a learning process. What can I take from this experience to help me improve my next case?” Oginski said.
“Do a lot of listening,” he said. “If you’ve lost a case, it’s difficult to fall in love with the jury. But you need to get your ego out of it and listen.”
It’s also important to pay attention to state limits on juror/lawyer interactions.
In Oregon, for example, lawyers are forbidden from contacting jurors after a trial unless contact is initiated by the juror, Hingson explained.
In addition, explain to jurors that what they say may lead to a post-trial motion or need to be shared with the court.
Gabriel recounted working on the criminal case against Heidi Fleiss and learning that jurors had been hopelessly deadlocked, six to six, and met outside of the deliberations to agree to a trade of charges in order to reach a verdict.
“They traded a couple of pandering counts in exchange for a drug charge,” he said. As a result, the case was overturned on appeal by the 9th Circuit.
While it is okay to be persistent in attempting to contact a juror, once someone declines, it’s time to back off, Gabriel cautioned.
And he noted that some jurors “will ask to be compensated for their post-trial opinions.” He counters that by offering to buy them a cup of coffee or lunch while they sit down and talk.