By Thomas M. O’Toole
and Jill D. Schmid
There is no denying that “picking” the “perfect” jury is difficult. No matter what anyone says, it is impossible to predict exactly how any one individual is going to decide the case. All one can really do is look for indicators or glimpses into how a potential juror might decide the case.
To do so, some attorneys rely on demographics, some look for behavioral cues, and others use voir dire to explore jurors’ case-related attitudes and life experiences. While some methods are more reliable than others, they are all imperfect tools since no one can predict the future.
These imperfections inevitably lead to moments of uncertainty during jury selection. Even when attorneys are confident in their identification of “bad jurors,” sometimes there are not enough peremptory strikes to get rid of all of them.
In these tough situations, it’s best to look to focus on opinion leadership traits. If there is uncertainty whether a juror is “good” or “bad,” remove the opinion leaders. If there are five “bad jurors,” but only three peremptory strikes, remove the opinion leaders. Opinion leaders, by definition, are going to exert more influence over the course of deliberations.
This makes the choice a matter of risk reduction. When you are uncertain about how an opinion leader will decide the case, you can be very certain that the consequences of “getting it wrong” by keeping an opinion leader on the jury are significant.
In this article, we identify 10 common signs to look for during voir dire that signal someone will be an opinion leader in jury deliberations.
1. The prior foreperson. Consistent with the popular saying that “the best predictor of the future is the past,” prior experience as a foreperson is a strong indicator that someone will exert influence in deliberations.
This prior experience establishes that the individual is willing and able to serve in this incredibly important role, and that his or her peers view them as capable. Some studies show that the foreperson accounts for as much as 25 percent of the comments made during deliberations. In our experience, the foreperson’s influence extends not only to the amount of time they are speaking, but also to their ability to influence how the discussion proceeds.
2. The prior juror. Several studies show that prior experience serving on a jury is the best predictor of who will be elected foreperson. The selection of the foreperson often begins with the question, “Who has done this before?” This deference to the person who is most familiar with the process allows him or her to exert considerable influence over the group as highlighted in the previous point.
3. The workplace manager. People who manage groups of people at work have greater experience, comfort and ability to take charge in a small group. Experienced managers know how to deal with disagreement and conflict, which allows them to take on a moderator role. This gives them authority and, consequently, credibility in the eyes of the other jurors.
4. Strong moral convictions. Some studies of jury deliberations have shown that the most vocal and influential individuals in deliberations are those who exhibit strong “moral reasoning.” In other words, these individuals tend to evoke common principles of right and wrong, in addition to other core human values such as personal responsibility and accountability.
These values and principles are important to them personally, which motivates them to be more vocal advocates in deliberations. During voir dire, the potential juror who evokes right/wrong values when recounting experiences and/or readily makes “judging” types of comments, is likely to use these values to lead during deliberations.
5. The non-testifying expert. The non-testifying expert on the jury is the individual who has personal experiences related to the case facts or issues. These experiences connote “expertise” in the minds of other jurors.
For example, a nurse serving as a juror in a medical malpractice case brings his or her own medical expertise to the deliberations and other jurors will rely upon that expertise to fill evidentiary gaps or to resolve areas of confusion or conflict. Non-testifying experts can be particularly dangerous opinion leaders because, absent the presence of other jurors with related expertise, the information they inject into deliberations often goes unchecked.
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