Tips for conducting post-trial juror interviews

Courtney Collins
Magna Legal Services

To be a fly on a wall during a jury deliberation is perhaps a dream for most attorneys. While on some level this dream can be achieved through jury research, including focus groups and mock trials, the inner workings of the case’s actual jury often remains a mystery.

The answer to the seemingly impossible question of how the actual jury came to a decision can be found in the form of post-trial juror interviews. While dependent upon the case venue as to whether these types of interviews are permissible, conversations with the real jurors after trial can prove to be helpful not only for discovering the reasoning behind that jury’s verdict, but often for future cases with the same experts or similar fact patterns.

The following is a short list of tips for conducting this type of interview:

Know the rules of the venue

First, it is important to establish the law of post-trial communication and contact with jurors in the case-specific venue. Without this knowledge, contact with a juror could lead to a compromised verdict.
That happened recently in the Court of Common Pleas of Philadelphia County. After the jury rendered a defense verdict, plaintiffs’ counsel attempted to bypass the no-contact-with-a-seated-juror rule by hiring a private investigator to interview the alternate juror.

Even though the contact was with an alternate, it led to several pending motions against plaintiffs’ counsel. Even walking the line can result in unfavorable consequences for your client.

Have a plan

Before any communication is made with jurors, determine your end goal. Decide what information you want to know ahead of time; “winging it” with jurors leads to disorganization and unclear messages.
The information jurors provide will be equally valuable whether it is favorable or not toward your client. Do not be afraid to press for constructive criticism of the attorneys and sentiments about key players or evidence in the case. For example, a demonstrative your expert believed in was lost on jurors.

Talking to jurors in past cases serves to help counsel in future cases, so plan accordingly.

Approach with neutrality

When contacting jurors, it is vital that the conversation is approached with impartiality.

The inclusion of a third party to conduct the interviews is an easy way to successfully complete the interview without bias. The third-party individual will lack the personal investment that attorneys or firm employees may have and will simply work as a conduit to gather the most valued information.

Experienced consultants are skilled in writing the interview instrument and are trained to probe in meaningful yet non-judgmental ways. Moreover, consultants conduct these often and know how to effectively probe for additional information on important topics.

Make contact quickly

Contacting jurors quickly after the trial is important as the details of the case and deliberations will be fresh in their minds. Fresh recollections lend themselves to more accurate recollections and a better basis for comparisons among jurors’ stories, leading to a better sense of the driving forces in the room, the salient points, and jurors’ motivations and loyalties.

The best way to begin this immediately after a trial is to approach jurors upon dismissal and ask for their contact information. Searching for numbers, especially for jurors with common names in populated areas, can be difficult.

In addition, getting jurors’ contact information and permission to contact them can help you connect without any cloud of suspicion and ensures jurors are more likely to answer the phone.

Prepare for rejection and  overall hesitation

Although rare, some jurors are willing to speak about the deliberation without any inquiry, but most jurors will be skeptical and want to know why the interview is being conducted and at whose request.

Therefore, it is important to establish answers to those questions prior to making contact so that all jurors are receiving uniform feedback. In our experience, explaining that you are happy to disclose those details at the end of the interview so as not to influence their answers is usually satisfying. More often than not, they forget to follow up on their initial inquiries once they have become comfortable answering the questions.

Despite everything being above board, some jurors remain unwilling to talk. Their rejection must be respected, but it is perfectly appropriate to leave a contact number where an interviewer can be reached.

It has also proven successful to let them know that someone else on the panel has already spoken or has an appointment to speak later that day, if true.

However difficult all this sounds, the true hurdle to the interviews will be making initial contact. Counsel and the team should make a concerted effort pre-trial and during trial to ensure that the jurors’ contact information is accurate. If not, it is perfectly appropriate after the verdict to ask for the best way to reach them.

Although it will be a fine line between harassment and diligence, if no response is received after some time (generally two weeks), with scattered phone calls and emails, the no engagement from a juror should be accepted as that person’s response.

Set goals but be flexible

Have a prepared list of questions for the interview. This will be a reminder of the key topics you hope to cover. But you must be flexible.

As in life, you will come across both talkative and more reserved jurors. For more talkative jurors, allow the conversation to flow, as that can lead to potential topics that are useful to the client.

Remember, most people will be unwilling to speak for more than an hour (unless they are retired), and you may not want to sacrifice the issues the trial team is most interested in for juror tangents on other issues. Ask the juror if you can circle back to that because you are conscious about taking up too much of the juror’s time.

Lastly, take the comfort level of jurors into account. This is especially important for more reserved jurors and is helpful in determining when the interview is over.

Take notes

While it may seem obvious, taking notes throughout the course of the interview is important. Again, a more talkative juror may direct the conversation “off-script,” so having notes to review and reference once the interview is complete will be critical in the overall assessment and comparison of the jurors’ positions.

Ask for follow-up

Although it is ideal to complete the interview in the course of one conversation, additional follow-up questions might arise given time to digest the interview. Consequently, establishing with the juror that additional contact may be needed allows for less pushback from the juror as it will not come as a surprise.

It is also helpful to ask the juror if he or she would be willing to sign an affidavit verifying the validity of the interview, especially if the contents will be used for post-trial motions.

As a newer consultant to the field, I am always eager to conduct this type of research and can attest to the value. While key topics and arguments specific to clients’ cases are often uncovered, time and time again it is the power of personality that surprises me.

In one case, I interviewed several defense-leaning jurors. They shared that the dominant plaintiff foreperson persuaded the initial defense-leaning jury to render a plaintiff verdict. Although not groundbreaking by any means, it is a gentle reminder not to discount the human factor.

Juror demographics certainly have their place within jury selection. However, the personality of jurors, in addition to their life experience and leadership potential, is something worth remembering.

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Courtney Collins is a litigation consultant at Magna Legal Services. She can be contacted at ccollins@magnals.com.