Litigator’s Playbook:
Jurors Are Teachers Too

by Jeri Kagel, M.Ed., J.D.
Trial Synergy, LLC
www.trialsynergy.com

Litigators caution clients and witnesses to observe, as jurors do, the court’s directive to refrain from any interactions with members of the jury. We might say hello without engaging in any conversation, we check who is in the elevator to make sure we are not discussing anything case related should a juror be present, and we look away if, as we walk down the hall, we see a juror.

The trial ends with the jury announcing its verdict. We do not hear anything more from them unless a request is made to have the jury polled by the court. When polled, each juror is asked whether he or she agrees with the verdict. That’s it. Nothing more is asked. Parties and their counsel are left pretty much empty handed, not knowing what worked and what did not, or how the verdict was reached. You know their ultimate opinion (the verdict) and may think you know how they got there, but you really don’t. Any of you who have done mock trials can attest to how surprising it truly is when you learn what matters to jurors.

Your jurors can, and should, be your teachers. They can offer you invaluable feedback on everything from the content of your case story and its themes, to which pieces of evidence were enlightening or insulting. They can answer your unanswered questions. Criminal attorneys (prosecutors and defense counsel) more often than civil litigators, may find themselves against the same opposing counsel in the future. Jurors can inform you about your adversaries’ courtroom behaviors – how they were effective and engaging – so that you can better undermine or counter them at upcoming trials.

The jurors on one case can teach you things you need to know for many of your upcoming cases.

Jurors’ feedback helps:
Teach you your own strengths and weaknesses in the courtroom:

• How you present information;
• How you (your manner and demeanor) come across to jurors;
• Whether, and if so, how, you best engage jurors;
• What you do or not do that leads them to distrust you;
• How your preparation of witnesses and exhibits came across.

Gain insight into the verdict and deliberation process should there be:

• A possibility of retrying your case, or;
• A need to think about settlement when an appeal is threatened.

Some attorneys only question jurors if they can “corner” them before they leave the courtroom. Attorneys often tell me that catching jurors in the courtroom is “the best time” because “it’s so fresh” to them. While I would not dissuade you from talking to jurors as soon as the case is over, please know that it is an illusion to think that this is the time you are going to get “the best” they have to offer. After trial jurors are drained and tired. They have just left an intense time, possibly filled with disagreements and arguments, and they may need to digest all that has gone on. They often want to get “back to their lives.”

By the same token, you are feeling the relief or letdown of the verdict and are probably exhausted. Not the best time to teach and not the best time to learn. At the end of trial, if the juror is willing, get contact information and set up a time to talk with them. If they would prefer to talk then or if they seem hesitant giving you information, then talk to them before they leave the courthouse.

Like someone who doesn’t want to discuss a bad first date with that first date, jurors, particularly those who have argued against your client during deliberations or have negative things to say, may be embarrassed to tell you their honest reactions. Using a third party, even someone else in your office, often makes it easier to develop a rapport and get candid feedback.

I am often asked to conduct post-trial juror interviews. I typically interview jurors over the phone, spending no more than 20-30 minutes talking with any one juror. We never pressure jurors to talk, we do not pay for information, and most often do not tell them who has retained us.

Write your interview questions ahead of time. Begin with easier, more general ones to help create trust and then ask questions eliciting more details. Listen and follow up. Let them know you want to learn. Let them know there are no “right or wrong” answers to your questions.

Listen and learn!

Be sure the court will allow you to talk with jurors prior to trying to engage them in any post-trial conversations or interviews. Ask the judge for permission before the verdict is read, allowing the judge to give jurors a heads up on the possibility that you will be approaching them and the okay to speak to you.