Alan Tuerkheimer 2016-02-09 23:51:55
As a jury consultant, I believe that talking to jurors after a verdict has been rendered is one of the best ways for an attorney to improve upon his or her litigating skills, regardless of whether the verdict was good, bad or somewhere in between. The recent trial of three former Dewey LeBoef executives is illustrative because a juror was willing to talk. According to this juror, after four months of trial, hundreds of email exhibits and dozens of witnesses, the jurors could not agree on basic definitions and were even unsure of their role. Basically, the case presented was too complex and the jurors had insufficient guidance. The case was overwhelming with financial concepts that were well understood by the attorneys, but never simplified for the jury. With such confusion and ambiguity surrounding the 151 charges, the side with the burden (prosecution) did not prevail. Had these jurors not spoken out after the verdict, the prosecution may have thought juror comprehension did not cost them but that the jury grasped and merely rejected its arguments. Retooling for the next round, if the prosecution chooses to go this route, will surely be based on some of the juror comments. However, what if judges tell attorneys not to talk to jurors post-verdict? The law typically sides with the press and the First Amendment even when it might appear to impinge on the right to a fair trial. The latter is sometimes invoked to shed light on the notion that if jury deliberations are aired after a verdict (and the jurors know about this in advance), then a juror with an opposing viewpoint, say a lone dissenter in favor of acquittal, may not fight for his or her position as strongly if the juror knows he or she will get scrutinized after the verdict. This camp argues that jury deliberations should never be violated in any way and that there should be some protections about what can be revealed about deliberations after a verdict is rendered. As alluded to, judges, especially in federal court, often tell attorneys not to contact jurors after a verdict. Jurors, however, are typically free to discuss the deliberation process and when they do, it is probably the most instructive method available for us to learn about how our system of justice operates. Keep in mind that in the majority of cases (not high profile) there is no press or public microphone for jurors to reveal insights into deliberations. Do jurors want to talk? From my interviews with hundreds upon hundreds of jurors after serving on a case, I believe they find talking to the press, parties or judge to be cathartic. Jurors usually want to talk, vent and release a little, which provides psychological relief through open expression. Sometimes it is hard to get them to stop talking. On a phone interview earlier this year, I asked a juror for 10 minutes of his time and he spoke for 45 minutes. This is not uncommon. Also, if you think about it, it makes sense why jurors love to talk. They are told not to talk about the case throughout trial, then are read lengthy and often confusing jury instructions. They then talk about the case with fellow jurors while trying to arrive at a unanimous or close to unanimous decision. It is not always easy. Rancor sometimes creeps in, as does frustration and peer pressure. After reaching a verdict, jurors have a comfortable, controlled environment in which to disclose anything they choose. Good attorneys take advantage of this willingness to talk, as they should. I am dumbfounded when an attorney says they don’t want to talk to jurors after a case because the case is over. Big mistake. Talking to jurors makes attorneys understand where they went wrong or right. I always tell clients to talk to jurors even if they won the case. The jury may have sided with their client, but for different reasons than the client or attorney anticipated. It is always good to ask jurors what they liked and didn’t like about the process. Most jurors usually say the attorneys spoke too much and wasted too much time. This is shockingly universal feedback. When jurors give feedback on witnesses, it helps for future cases when the attorneys have to assess which witnesses to use. When a verdict is announced, we all know the end result, but how jurors arrived there is also of great value. Asking jurors open-ended questions, such as how did the jury reach their conclusion, what were key turning points, and what additional questions they have about the case, etc., empowers jurors to speak. When they do, they invariably provide feedback that is insightful, candid, interesting and even strategic in preparation for the next trial. Alan Tuerkheimer brings his background in psychology and the law to his role as jury consultant. He has extensive experience conducting jury research.
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