On Legal Ethics

Let's face it: some people just make bad jurors. If these folks are in your venire, you are in trouble -- regardless of who you are, who your witnesses are or what your case is about. This column will discuss how to weed out problem jurors, and we will also explore when you may want to hire a jury consultant.

Presumptively problem jurors for any case

Indecisiveness: There are many traits you like to see in jurors for any case. There are also traits that warn of potential problem jurors. One of these traits is indecisiveness. Some jurors by nature simply cannot make decisions. You may be able to identify these jurors through their job descriptions, their fickle or inconsistent answers to your questions and also possibly through the worried, confused looks on their faces. You may be willing to accept such a juror, rather than risk someone worse taking the seat next if you exercise a challenge. Just be aware, such jurors probably will vote with whoever puts the most pressure upon him or her.

Disinterest: These jurors would rather be anywhere but your courtroom, but were not able or willing to concoct a reason to be excused. They will be relieved to be challenged if you spot them. If not, they will be resigned to serving as a juror but may look at the clock, at the door, or exhibit other behaviors indicative of boredom. You don't want them on your panel because they will not pay close enough attention to your evidence. And if they don't take their job as jurors seriously, they may decide the case not based on your evidence, but by voting whatever way they believe will end the deliberations the quickest.

Should you use a jury consultant?

Bringing in a professional jury consultant may be invaluable in many cases. But often, your budget just doesn't allow for this luxury. In other cases you may do just as well without such assistance. In serious or complicated cases, however, you may be so overwhelmed with the volume of evidence and required preparation that you may be wise to enlist the services of someone who can focus exclusively on scrutinizing your prospective jurors in order to select the best possible jury for your case.

In serious cases you will greatly appreciate services of an expert to help you select your jury. There are many subtle nuances jury consultants will catch that you will not. While you will of course be concentrating on the prospective panel, they are trained to use all of their senses to screen the panel in far greater detail. They will be alert to things such as inconsistencies between a juror's answer and his or her behavior. If you case is extremely high profile, a consultant may help you weed out the "stealth" jurors who are attempting to disingenuously present themselves in order to be selected to serve on your case.

Types of jury consultants

Some jury consultants are hands-on and insightful when they interact with people. Others are more scientific and research-based. Which you choose to use will depend on the facts of your case and your specific needs. Jury consultants can help you in many areas, short of recommending which jurors to keep and which to excuse. They can conduct focus groups and take community attitude surveys, and also help with thematic development, witness preparation, jury questionnaires and voir dire questions.

How to find a consultant

If you belong to a law firm, your own office will have certain consultants it retains on a regular basis. Otherwise, you might ask your colleagues who go to trial often if they have someone they would recommend, as the complexity and high budgets of many civil cases allow lawyers to invest frequently in jury consultants.

Please tune in next month as we examine some of the ethical rules that apply to selecting and interacting with your jury, and how common ethical dilemmas are likely to arise.