Trials would be so much easier if you didn’t have to deal
with jurors. Jurors wander off mentally during your most crucial testimony,
they’re distracted by a lawyer’s mannerisms, they’re irritated by an expert’s
vocal tone, they disapprove of a witness’ attitude. Jurors misunderstand the
law, making it up as they go along.
Jurors impose their own version of what’s right or wrong, what’s negligence,
what should be the standard - be it of care, warning, safety or other. Jurors
deliberate as a group, which introduces the whole notion of group dynamics,
complicating the matter further. Need I go on?
But jurors must be dealt with, and more importantly, with
how they come to the decisions they make. For the better you can determine or
discern what impacts those decisions, the more likely you are to succeed at
trial.
This is where intense, targeted use of the pre-trial focus
group can be especially valuable. Instead of letting focus group “jurors” elect
a foreperson and talk over each other to arrive at a consensual decision, use a
facilitator to ask probing questions of each and every juror, to analyze how
each juror arrives at their various conclusions, and to observe how group
dynamics affect those conclusions. In addition, a facilitator can keep track of
each juror’s opinion, which in turn is highly useful for jury selection.
Truly, in this as in many aspects of litigation, knowledge
is power.
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