The Dynamics of Jury Research by Augustus F. Brown
Augustus F. Brown, a principal in Brown, Brown & Young since 1985, is a graduate of Villanova University in 1971 and a Magna Cum Laude graduate from the University of Baltimore School of Law in 1974. Mr. Brown practices in Federal and State Courts and focuses in
the fields of Auto Injury, Defective Products, Highway Construction Crashes, Workers’ Compensation and Criminal Defense. He frequently facilitates Jury Selection Focus Groups on Medical Malpractice, Negligence and Auto Liability Case Issues. Mr. Brown is a frequent speaker, presenter, moderator and teacher for the Maryland Trial Lawyers Association (MTLA), Association of Trial Lawyers of America (ATLA) and Maryland Institute for Continuing Professional Education of Lawyers, Inc. Augustus Brown is a former President and Board Member of MTLA, a former President and Board Member of the Harford County Bar Association and is currently Chairman of the Board of Trustees of the John Carroll School.
“The more things change, the more
they remain the same.”1 The research that two different juries
provided at the January 16, 2006 Mock Trial Program illustrated some consistent fundamental qualities of jury focus groups - that the jurors’ comments were rich sources of identifying case issues that none of the participating lawyers ever thought about; that juries were not entirely pre- dictive of the outcome of a case, especially regarding damages; and that the juries were motivated by feelings that we thought would not be important and that they were not motivated by feelings that we thought were important. Although both juries agreed that the defendant was liable, they came to dis- parate conclusions about the damages. They were typical of focus groups I have facilitated, not only in Maryland but also in Arizona, Minnesota, Texas, Pennsylva- nia and Georgia. We saw some of the same biases and prejudices endemic to ju- rors in all parts of the country. Both juries were suspicious of the Plaintiff and his attorney. Both juries wanted to hear the Defendant’s story concerning liability and felt that it was relevant to assessing dam- ages. Both juries reacted to the evidence based on their own personal life experi- ences on how they feltl they would react to similar circumstances. Both juries filled in evidence when none was presented on an issue and their “fill” was colored by how they perceived the character of the par- ties. Both juries showed us why it is so necessary to present a case to jury focus groups before presenting it at trial. Of great interest was the way the ju- rors’ feelings waxed and waned during the
1
Les Gu_pes [Janvier, 1849] by Alphonse Karr.
Winter 2006
course of the trial. Without any discus- sion or deliberation, and each of the attorney presentations and each witness testified, every mock juror completed a form identifying whether he or she was leaning in favor of the Plaintiff or in fa- vor of the Defendant. All of the forms were tabulated. The results are quite in- teresting.
At the end of the opening statement of
the Plaintiff, both juries strongly favored the Plaintiff. After the defense’s opening statement, the majority in both juries still favored the Plaintiff. However, after the Plaintiff testified, the “city jury” strongly favored the Defendant and the “county jury” slightly favored the Plaintiff. It re- mained this way until the Plaintiff’s economist testified and then both juries favored the Defendant. After the Defen- dant testified, the Plaintiff ’s case was resurrected for the “county jury.” How- ever, the Plaintiff did not then fare so well before the “city jury.”
Following the
Plaintiff ’s closing argument, the “city jury” voted five to four in favor of the Plaintiff, but after the Defendant’s clos- ing argument they were five to four in favor of the Defendant. The “county jury” voted eight to one after both parties’ clos- ing arguments, thereby enabling its discussion of damages to favor the Plain- tiff. For both juries, consciously or not, their feelings about liability affected their deliberations about damages. Before the program began, each juror completed a background questionnaire which asked about family, education, employment, political and personal infor- mation. All but one of the “city jurors” were Democrats. However, the non- Democrat among them was not a member of the Republican Party. The “county jury” was composed of five Democrats,
Trial Reporter
three Republicans and one Independent. As we saw, this political demographic clearly did not make a juror prone to the Plaintiff or to the Defendant. In addition, jurors were asked in the questionnaire about how they felt about trial lawyers in civil cases. Only three of the 18 jurors had a positive impression of trial attorneys. One thought that trial law- yers were “a waste of money.” Several said that trial lawyers ought to settle cases not litigate them. Others thought that trial lawyers “can be helpful, but only if they worked harder” and “presented the evi- dence in an unbiased way.” One juror summed up a recurrent theme, “I think trial lawyers tend to be too greedy at times. However, they can also be worth having. They are a mixed bag.” We learned again, in a dramatic way, that jurors are always right. To our cases, they are the only audience, the only fact finders and the only dispensers of justice. Whether we agree or disagree with their perspectives or conclusions, we realize that only their votes count. We must better focus on our cases and work harder to discover how and why jurors react the way they do to our unique, fact-specific cases. Only then will we gain any confi- dence in understanding what may persuade them to embrace our client’s cause.
These two mock juries reminded us that
we will continue to get negative results at trial if we continue to think of our cases in our terms and not in theirs. The chal- lenge is to identify those terms and apply them successfully. We have to think cre- atively to come to terms with the jury we seat in the box. On January 16, 2006, two mock juries reminded us why.
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