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Advocate’s View: What does ‘reading a juror’ really mean?

By: Julie Campanini//September 2, 2016

Advocate’s View: What does ‘reading a juror’ really mean?

By: Julie Campanini//September 2, 2016

I recently learned of a new television series starting in the fall called “Bull.” According to the description on the CBS website, “Bull stars Michael Weatherly as Dr. Jason Bull in a drama inspired by the early career of Dr. Phil McGraw, the founder of one of the most prolific trial-consulting firms of all time. Brilliant, brash and charming, Dr. Bull is the ultimate puppet master as he combines psychology, human intuition and high tech data to learn what makes jurors, attorneys, witnesses and the accused tick.”

(Note: I haven’t seen the show so I can’t comment on the writing, the acting or anything substantive directly related to the series.)

Putting aside the, um, generous description of Phil McGraw and his old trial consulting firm, I am somewhat disappointed that McGraw, one of the writers and producers of the show, would thrust this industry into the spotlight. I am not surprised, just disappointed.

In part, jury research has been effective over the years because of its obscurity outside the legal field. It is more challenging to research subjects who know they are being researched and for what purpose. In other words, if participants in the jury research know it’s for jury research, they might act differently.

If consultants in the courtroom will now be a colossal distraction to jurors, will judges bar us from the counsel table? From the courtroom completely? You know how judges hate turning the courtroom into a “circus.”

Will jurors assume we are there “reading them” like Dr. Bull and answer questions differently or avoid being authentic? This bothers me.

What does ‘reading’ mean?

But I digress, because this column is about the show’s claim that Dr. Bull “reads” jurors. I want to explore what that means.

Reading people in the context of jury selection generally means employing a trained trial consultant who pays attentions to jurors holistically. We listen to their answers; we watch how they deliver that answer; we watch how they react to others’ answers; we observe them in quiet moments when they are waiting and walking out; we note how they dress as it relates to their lives; and we are noting discrepancies in all of those areas.

This is reading people and behavior observation; this is not mind reading. The show’s trailers allude to the fictionalized ability of Dr. Bull to read jurors’ minds, and it is simply false. Can consultants accurately predict which way a juror will come down on an issue? Sure, but it isn’t from mind reading; rather, it comes from years of experience watching people and researching their decision-making practices.

A few things we pay attention to in a trial setting include the following:

Consistency in answers. If a juror’s answers start contradicting each other, that’s a red flag. A red flag does not mean use a strike, it only means the person warrants further observation.

Engagement. Is the juror engaged, interested, alert? If not, that’s a red flag.

Employment history, dress, education and current occupation. It isn’t enough to know what a juror does today. The recession in 2008 caused many people to change careers. If these don’t fit well together or something is off (i.e., a person with a Ph.D. working as a retail clerk), that’s a red flag.

Body language. We watch to see how dominant a juror’s personality is during voir dire, as well as how meek someone is. Is the juror’s body spread out? Does he speak in loud tones and engage people around him? Or is the juror quiet, reserved and avoids eye contact?

Reactiveness. We observe jurors when the case is being previewed. Sometimes jurors’ reactions are telling (often they are not). The level of reactivity can be a red flag.

Outliers. We are often looking to identify outliers — that is, those jurors who are on the extreme side of anything. This can range from a person with multiple body piercings to someone who takes an extreme view of every issue in voir dire.

A subtle science

All of these observations and more comprise a profile of a juror. How does the juror look as a whole? Can he or she be persuaded? Is he or she biased against us? Will this person work well with others? It’s complicated and fast-paced, much like speed dating.

There are many elements of trial consulting, and behavior observation is certainly one of them. It is important to know what we look for and how we cull this information in jury selection, but I’m not sure Dr. Bull will be able to help you there.

So while I’m sure “Bull” will be entertaining, it is a work of fiction. The science and art of jury selection is much more subtle than what I have seen in the few trailers that have aired.

Will I watch it? Maybe for water-cooler talk with my colleagues, but certainly not for strategies.

However, I would really love to know which clients will pay for the jury research with retinal scans and individual physiological responses on tablets to measure whatever it is Dr. Bull is measuring in that scene … .

Julie Campanini is the founder and principal at Trial Insights. She can be contacted at [email protected].

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