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pleasant eye contact with you if they are on your side. Yes! I nailed it! And then “We, the jury, find the defen- dant guilty . . . “
Wait. What?
I called him. I got everything right. Well, almost every- thing. Right that he would be the foreman. Right that he was strong enough to bring others around. Just wrong about how he would see the evidence. The original vote was 11 / 1 for acquittal. He was the one guilty vote. It took him eight hours to bring everyone else on board his guilty train.
I have never again tried to predict what a jury will do.
I tried a murder case a few years later with a young as- sociate, Jeff Pitzer. The jury came back with a not guilty verdict. Well done. Let’s go have a beer, Jeff. But this was Jeff’s first trial and he wanted to interview the jurors to find out exactly why we had won.
Was it Jeff’s brilliant cross of the investigating officer? The way I tied everything together in closing? What con- vinced you our client was innocent? Well, they told us, we didn’t actually believe he was innocent. We just felt sorry for him, and we don’t think he’s dangerous or likely
to hurt anyone else.
Oh. OK, yeah. Glad we asked.
I have never again asked to talk to a jury after a win. After a loss, sure. Learn from your mistakes. But after a win? No. Take the victory, don’t analyze it. And for God’s sake, don’t think for a moment you can predict.
I have a jaundiced opinion of jury consultants who, for obscene amounts of money, will predict for you what a jury will do, even though in truth they have no better idea than you do.
In 1985, the jury consultant industry was just getting off the ground. We hired Don Vinson, the “Father of Jury Research,” to try to predict the outcome in a white-collar criminal case. I tapped two associates, who I will call Joel and Ann, because, well, because those are their names, to do the presentations. Under Vinson’s guidance, Ann and Joel made mock presentations to an audience of fifty people who held clickers that allowed them to contin- uously express their pleasure or pain at what they were hearing. Vinson added, averaged and charted the reac- tions on a real time display that ran under the video feed.
And what did we learn? Well, we learned that maybe we
should consider giving Ann a bonus. Forty-nine of the fifty partic- ipants rated Ann above Joel. But did we learn anything about how we should try the case? No, not so much. We simply learned which of two lawyers, neither of whom would actually lawyer at the actual trial, appealed more to a group of random people, none of whom would sit on our actual jury.
Mock trials simply gauge which of two presenters is more presentable. In another matter our client’s in-house lawyers wanted jury research. I tried to talk them out of it. But we conducted four separate day- long mini-trials, each before a mock jury of twenty-four people. I represented our client in two of the trials as my partner represented the defendant. On the other two, we switched roles.
So what did we learn? Did we learn which side of the case was more persuasive? No – I won all four mini-trials, so the substance was a tie. Well, hey, I won all four, so we learned I’m pretty good, huh? Well, no, we simply learned I was a bit more persuasive to a major- ity of these particular ninety-six randomly chosen people; the next ninety-six could easily have hated me. More to the point, we learned nothing about the actual crux of the matter.
My mentor Jerry Solovy had a case involving a lot of money, and Jerry wanted a lot of jury research. I convinced Jerry we should not do something that would just compare the relative likeability of the presenters. So we decided I would do sixteen minitrials to panels of 20-30 participants each. At each presentation, I told the group:
Ladies and gentlemen, we are trying to help two companies reach a friendly resolution of a dispute, by having people like you hear both sides and discuss who has the better side of the dispute.
Rather than have presenters for each side, I am going to present both sides to you, because we want you to focus on the facts, not the way they are presented.
And then I did just that. I announced, “Let’s start with plaintiff’s case.” I presented. I paused. I pirouetted. I put on a bright blue base- ball cap and announced “Now let’s hear defendant’s case.”
And what did we learn?
We learned that people are, on average, idiots.
Has former President Trump been convicted or acquitted? We know
now, I presume. But as I write, I can’t predict. Yogi Berra said it best – “It’s hard to predict things, especially the future.”
SUMMER 2024 JOURNAL 4
In every deliberation room – every one of them – one or more participants said something like “I’m voting for plaintiff because their lawyer was better” or “the guy in the blue cap was a lot more convincing than the other lawyer.”