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Jury consultants are changing with the times 20 years after the O.J. verdict
by Marc Davis and Kevin Davis
The nearly 20 years since a jury found O.J. Simpson not guilty of murder have left numerous marks on the national psyche and the legal profession. And for at least one area of legal services—jury consultation—that mark is a measure of rapid growth.
Jo-Ellan Dimitrius, who rose to national prominence as a jury consultant for Simpson’s criminal defense team, has seen the number of consultants rise significantly.
“A multiplicity of people have entered the profession,” says Dimitrius, founder, president and CEO of Dimitrius & Associates in Henderson, Nevada. “Jury consultants are now part of the legal culture for civil, criminal and corporate cases.”
Numbers Tell the Story
That growth is reflected in the membership of the American Society of Trial Consultants, which has expanded from fewer than 20 members in 1983 to around 300 today and publishes a magazine featuring social science research for jury consultants.
Dimitrius says her client list also has expanded since the O.J. trial. “In my practice, I’ve worked for both the plaintiff and defense sides of a trial. In corporate cases I’ve worked on everything—product liability, patent infringement, breach of contract, you name it.”
Says John O’Malley, a partner at the Los Angeles office of Fulbright & Jaworski, “I can’t imagine at this point not using jury consultants or focus groups.” He started hiring jury consultants in the 1990s.
Richard Gabriel, president of Decision Analysis in Los Angeles, worked with Dimitrius on the O.J. trial. “Certainly, the O.J. Simpson trial created a lot of awareness of what we do—and also created myths that we’re only jury pickers,” says Gabriel, author of Acquittal, a book about some of his famous cases. “Hiring consultants is also about risk evaluation.”
Gabriel studies what juries want to see, what their biases are, and how they absorb and evaluate information. “How do I make a complex case more clear and more compelling?”
Rich Matthews, a senior trial consultant with Juryology in San Francisco, agrees that the term jury consultant is a misnomer.
“What we do is so much broader than what happens with a jury. The jury selection process is the least important thing we do, but the most public,” he says. “The bigger things we do really happen before that. It’s really trying to resolve the dispute before trial.”
That’s where focus groups and mock trials come in, which have elements of jury selection. Gathering data on how people view cases, Matthews says, helps lawyers to frame those cases and build the narratives they need to make better arguments.
A big shift since the Simpson trial is how technology has changed the nature of jury research. “What we have now that we didn’t have 20 years ago to research jurors is social media, the Internet, Facebook, LinkedIn—a prospective juror’s entire social media footprint,” Dimitrius says. “We can now also conduct online focus groups. We can do an Internet search for information on prospective jurors.”
Mark Calzaretta, director of litigation consulting with Magna Legal Services in Philadelphia, says online technology helps in the selection of jurors who’d be most sympathetic to a litigant’s case.
One new and effective method of developing a potential juror’s profile—psychological, social, economic, political, educational, religious—is the online focus group, which can be done virtually anywhere instead of having to gather people in one location.
While jury consultants are working smarter, so are potential jurors. “The average juror has changed since the O.J. case,” Dimitrius says. “The average juror is more sophisticated now, more familiar with legal terms and procedures.
Because of TV shows, jurors are now more knowledgeable,” she says. “There are also websites that tell prospective jurors how to get out of jury duty.”
Originally published in the January 2015 ABA Journal.
Social media delayed: a case of life and death
By Jo-Ellan Dimitrius, Ph.D., Amy Singer, Ph.D. and Diana Greninger
Jury selection for Jodi Arias sentencing phase began this Monday in Arizona. Given this case’s publicity, social media has once again come into question. As citizens, we must ask ourselves, is it possible social media is affecting our jury system? Are defendants in these high publicity trials in fact getting a fair and impartial jury of peers? How can attorneys select a panel of impartial jurors once the case has been broadcasted to the world? Is social media affecting witness testimony or any other aspects of a trial?
It has come to light that many of the defendant’s witnesses have refused to testify as they have received death threats. Death threats can be qualified as witness intimidation, which is illegal in the United States. Yet, it is becoming more prevalent amongst high publicity cases.
Judge Sherry Stephens ruled that she will not allow live streaming of the sentencing trial, live tweeting or Facebooking by reporters this time around, in part to protect the few witnesses who are still willing to testify for Arias. Yet, because of the first amendment, she cannot exclude reporters and their cameras from the courtroom, she can simply require that they wait until the verdict comes out to publish video taken of the court proceedings.
This time around, the defense has also asked for access to potential jurors’ twitter accounts as a way to avoid stealth jurors. However, given this information has been made public, who is to say such potential stealth jurors won’t delete their past tweets or social media posts and get themselves empaneled despite having already made a decision about Arias’ outcome? Who is to say someone won’t finagle a way to share sensitive courtroom information with the general public on a delayed social media feed during jury selection or even during the trial?
While the judge has ruled no live video streams should be made available, we can be certain reporters and even spectators will be creating delayed tweets, Facebook posts, blogs and articles about proceedings. Among these posts, some will be truthful but most will not. Such information can have quite an impact on jury selection, which is expected to last three weeks.
In this case, potential jurors, spectators, reporters and the public have yet to see how someone’s life can be impacted by what is said or shared online. There is no social filter for what people post online. It is so easy to exaggerate or put one’s own slant on a courtroom’s daily events knowing they will not be held accountable in some fashion. Most people don’t realize tweets on their personal account can be shared and produce such a life or death effect. Most people simply relish in the fact their post or tweet got shared or retweeted, rather than on the end result.
This trial is about a single issue: life or death. How should this decision be made? By social media or a by a fair trial? Is social media becoming an outlet for people to release their anger? Who in their right mind makes death threats to witnesses? Are these people’s posts and threats affecting the outcome of life vs. death if witnesses are afraid to testify?
We all have opinions, life experiences and general beliefs that affect our decision making but when it comes down to the jurors who will be deciding this case, and whether Jodi Arias should live or die, it is imperative for the empaneled jury to rely solely on what is coming from their heart and what they have heard in court rather than what they heard from the outside. An outside that always thinks it knows all the facts, but truly it does not. Anyone involved in a trial can tell you that the media rarely depicts the truth.
Because of that component, it is understandable why judge Stephens has made the decisions she has and is not releasing the supplemental juror questionnaire nor allowing live news coverage of this trial until a verdict is reached. Her decision is similar to the Canadian jury media system which allows no coverage to be shown until a verdict is reached.
However, she cannot control everything. Information will be leaked. The reporters and spectators will write their stories, tweet their tweets and write their blogs. They will simply do it on a delayed feed. They might write a blog every night about what is happening, how Arias is coming across, how she is dressed, etc. Jurors will have to be extra diligent not to access any social media or news reports. Judge Stephens and the attorneys will surely have to monitor the selected panel’s social media activity if they are not being sequestered.
Judge Stevens has taken some steps in the right direction, but will it be enough? Are cell phones and lap tops being confiscated upon entering the courthouse as it is often done in federal courthouses? Perhaps that would keep folks from taking down quotes verbatim and posting them in a delayed schedule, despite her rulings. In what other ways do you think social media will affect this trial? Join the conversation.
New Jodi Arias trial set to determine life or death for convicted killer
Aided by consultant on OJ Simpson trial, court will attempt to select impartial jurors from in high-profile murder case
Jodi Arias’ guilt has been determined. The only thing that remains to be decided is whether she dies for killing her ex-boyfriend.
More than six years after the death of Travis Alexander, and more than a year after Arias was convicted of murder, a second penalty phase to determine her punishment gets under way on Monday with jury selection.
Arias acknowledged that she killed Alexander in 2008 at his suburban Phoenix home, but claimed it was self-defence. He suffered nearly 30 knife wounds, had his throat slit and was shot in the head. Prosecutors argued it was premeditated murder carried out in a jealous rage when Alexander wanted to end their affair.
The 34-year-old former waitress was found guilty last year, but jurors could not agree on a sentence. While Arias’ murder conviction stands, prosecutors are putting on the second penalty phase with a new jury in another effort to secure the death penalty. If the new jury fails to reach a unanimous decision, the judge will then sentence Arias to spend the rest of her life behind bars or to be eligible for release after 25 years.
At least 300 prospective jurors will be called in the effort to seat an impartial panel, not an easy task in the case that has attracted so much attention.
“You’d have to have been living in a cave to have not heard about Jodi Arias,” said Phoenix defense lawyer Mel McDonald, a former judge and federal prosecutor. However, McDonald added, an impartial juror doesn’t mean they have never heard of Arias, just that they haven’t made a decision on whether she should live or die.
Jury consultant Jo-Ellan Dimitrius, who has worked on numerous high-profile cases, including the murder trials of Scott Peterson and OJ Simpson, said a key obstacle for Arias’ attorneys will be identifying so-called stealth jurors who will lie to get selected after already making up their minds on punishment.
“I can assure you they’re going to have at least one person on that panel that has an agenda,” Dimitrius said, adding that the possibility of another sentencing mistrial should be a huge concern for prosecutors.
“It just takes one whack-job, if you will, to hang a jury,” Dimitrius said.
She also said that in such high-profile cases, even prospective jurors who don’t know much about the trial might find themselves suddenly interested and ignore the judge’s admonishments to avoid any outside research. The jury questionnaire used to screen panelists will not be made public until after the jury is seated.
“They’re largely going to be focused on the media,” Dimitrius said. “Did you follow the case? Did you watch the TV coverage? Did you watch the trial every day? They’re going to want to find out if this is someone who is a court watcher or someone who just happened to see it in the paper the next day.”
One key difference in the second penalty phase is that there will be no live television coverage. Judge Sherry Stephens ruled that video cameras can record the proceedings, but nothing can be broadcast until after the verdict.
Arias’ five-month trial began in January 2013 and was broadcast live, providing endless cable TV and tabloid fodder, including a recorded phone sex call between Arias and the victim, nude photos, bloody crime-scene pictures and a defendant who described her life story in intimate detail over 18 days on the witness stand.
Arias’ attorneys claimed the televised spectacle led to threats against one of her lawyers and defence witnesses who opted not to testify.
Citing Arias’ right to a fair trial, Stephens is erring on the side of caution. The retrial is expected to last until mid-December.
How many times have you seen a litigator roll his/her eyes as a witness is testifying; wink at a juror; or lean back in the chair (as if it’s going to tip over) and gaze at the ceiling? Lawyers run a high risk of alienating themselves from the jury when they showboat.
I had the good fortune of beginning my career in the criminal courtrooms of Los Angeles. As a novice jury consultant, I learned the nuances of working in a courtroom within the confines of a familial environment. Because judges, prosecutors and defense attorneys interact with each other on a daily basis there is little tolerance for outrageous attorney behavior. Although, that’s not to say that it does happen from time to time.
Unfortunately, the civil courtroom isn’t so civil. It is rare for a civil litigator to get into the courtroom more than a few times a year. As such the unwritten rules of courtroom behavior don’t seem to apply to some litigators.
In our recent post-verdict interviews of a Southern District of New York and Arkansas Superior Court jury panel, the first words out of their mouths were how disgusted they were with particular lawyers that had argued the case. The jurors described the lawyers who were winking at them during witness examinations; sighing at inappropriate times; and laughing at witnesses when no one else was laughing. The respective verdicts didn’t bode well for those lawyers.
The opinions regarding lawyer demeanor aren’t unique to these geographical locations. We constantly receive feedback in this regard from jury panels across the country. So, what are those unwritten rules of courtroom behavior?
- Be cautious of rolling your eyes
- Never laugh at inappropriate times
- Consider the recipient’s reaction when you wink
- Remember that a juror’s physical space can be negatively pierced when you stare at them
- Never physically mock an opponent in front of a jury
While all of this may seem common sense even experienced litigators can forget these principles. You can be an effective advocate without displaying inappropriate and unprofessional behavior. Remember that when the jurors walk into the courtroom they view the courtroom as an alien environment in which everything and everyone is under scrutiny.
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The nuances of attracting and securing a new client as a lawyer haven’t received much written commentary. With the economic crisis still affecting our business interactions it is becoming much more difficult to attract and secure corporate clients. How does a lawyer deal with increasing pressure to deliver the corporate client? Here’s a thought that may not be particularly groundbreaking but certainly timely in our technological society: digital footprints.
What are digital footprints? They are the tracks, data and information left by any corporation on the internet through either their own manipulation (postings, blogs, etc.) or through the manipulation of others.
In your due diligence of a potential corporate client, how often do you “Google” the corporation and its key management? How often do you go beyond the articles written about the entity and read the actual comments posted to the particular article? Further, how often do you consider the source and readership of the article? If Huffington Post writes the article then you’re generally apt to find more liberal readers reacting to the article and can make some assumptions about potential juror bias based on that fact. If Fox News posts the article then chances are your responders will be more conservative.
It’s really shocking to know how many companies still operate in the dark ages when it comes to self-assessment of their digital footprint and the manner in which it impacts public perception. It doesn’t take a rocket scientist to hypothesize that the more you research the digital tracks of a corporation the better prepared you will be to highlight their strengths and weaknesses when you’re in that “Beauty Contest” in front of the client. This synthesized knowledge will aide in the presentation and persuasion process as it relates to potential litigation.
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Well, the out of touch “reality stars” family Kardashian have once again demonstrated their inability to understand basic rules of human conduct. Over the weekend, Khloe Kardashian wore an Indian headdress to a party being held for her one-year old niece, North West. Clearly she was totally oblivious to the racial consequences of doing so.
Apparently, Khloe hasn’t heard that the Native American culture considers the headdress a sacred and spiritually powerful item that is only to be worn by chiefs or highly regarded warriors of certain tribes. It is important to note that it is considered a serious insult for a non-native to wear such an article of tribal culture. I have been told by many native-Americans that it could potentially bring negative side effects to the wearer. Hmmm—do you think she needs to bring on any more negativity during her divorce from Lamar?
Navajo healer, Gomo Martinez, from Lukachukai, Arizona, has stated to me that a “war bonnet is a highly respected article of culture for the native-American. It almost always signifies a person of extreme importance within the tribe”. Another interesting side note is that if a non-native is using real eagle feathers and they don’t have a permit for those feathers then “they are violating federal law as well.”
Lawyers should always keep in mind the possibility of public persona bias when dealing with a client or witness.
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