Trial lawyers are responsible for helping their clients look beyond the “case bubble,” to identify weaknesses in their case. While some cases are “slam dunks” and others are “dogs,” most cases are debatable. The fault line between favorable and unfavorable jurors may come down to the attitudes and world view of unfavorable jurors. As a trial lawyer, your job is to identify your “worst” juror. You then have a twofold mission: either challenge or strike your worst potential juror during voir dire or find a way to shift their thinking in your favor. Consider the following steps.
A mock trial or focus group is an ideal setting to unearth juror attitudes about your case. There’s a good chance at least one, if not more, will have something negative to say about your evidence, your client’s witness presentation or your presentation and style. You need to be willing to listen. In fact, your “worst” juror is your best friend at the mock trial. I recommend to my trial-consulting clients that they spend considerable time debriefing the problematic mock jurors.
Perhaps your problem juror’s issue is an unwillingness to follow the law in your case. Maybe it’s a more general attitude like resistance to the “MeToo” movement or that too many lawsuits are being filed. Maybe he or she wants you to prove your civil case beyond a reasonable doubt. If your problem juror has seen a video of your client, the problem might be your client’s witness performance. Spend a disproportionate amount of time debriefing your worst juror to identify everything potentially wrong with your case. Once you’ve done so, you then need to ask what additional fact or piece of evidence might have turned the case around. Ask whether the case could have been argued differently. Maybe there is a piece of evidence he or she missed, or explanation was not simple enough.
Consider conducting at least two focus groups or mock jury sessions. Learn from the worst juror’s feedback at the first session. Maybe the problem can be fixed. If you get the same result after course corrections, then perhaps it’s time to talk settlement with your client.
Your first goal is to challenge or strike potential jurors who can’t be turned around. If you need a refresher on the law of jury selection, look at my quick guide to federal civil procedure law: GlanceChart’s Guide to Federal Civil Evidence. If you are stuck with your “worst juror,” you need to find a way to restructure your arguments in a way his or her values can accept them. For example, jurors who are stuck on “self-responsibility” need to hear how the defendant was irresponsible. A problem juror who has trouble with non-economic damages may need to see a difficult-to-watch day in the life video. Talk to others within your “worst jurors” attitude bracket and brainstorm with them.
Take the time to confront the problems with your case. Don’t stick your head in the sand. If you have that courage, you are capable of being a great trial lawyer.