Have you ever picked a jury? Whether you have or haven't, let's go through a little thought experiment:
Imagine jury selection in a civil lawsuit involving an automobile versus train, crossing accident, and it's your role to decide which prospective jurors are bad for the plaintiff and which are bad for the defendant.
For context, the intersection at the crossing had a stop sign. The crossing had flashing red lights (that were working at the time of the accident). There were no gates at the crossing. The engineer was blowing the horn as the train approached the crossing. The driver went through the intersection against the flashing red lights, got T-boned by the train and sustained catastrophic injuries (permanent paraplegia). The accident was caught on video from the cab of the locomotive and by a surveillance camera near the intersection.
Plaintiff claims the accident would have been prevented if the railroad had installed gates at this crossing. Defendant claims the crossing was safe, and that the plaintiff violated traffic laws and was the sole cause of the accident. Further the defense argues that governmental entities, not the railroad are required by law to determine the level of protection at any particular crossing. However, evidence would show that if the railroad had asked the department of transportation for permission to upgrade the crossing on its own dime to include gates, it would have been granted.
In this hypothetical jury selection, assume that juror number 10 has the following demographic background:
Thirty-seven-year-old Caucasian female (looks to be 50 years old)
High school diploma
Household income somewhere between $50K and $75K
Single (never married)
Liberal
Employed in the healthcare field (direct service provider)
Two years at current employer
Renter
Has been on public assistance recently
Put yourself in plaintiff attorney's shoes, what do you do? Strike or pass? Now put yourself in defense counsel's shoes... same question - strike or pass? What do you make of this person based on her demographic characteristics?
It turns out the plaintiff's attorney should strike her. Are you surprised? Here's why:
True story - I recently did a mock trial for a case with this exact fact pattern. Of all 27 mock jurors, the juror with the demographic background outlined above was the most defense oriented of the group. In her opinion, the driver was the sole cause of the accident and deserved $0. Nothing any of her fellow jurors said could get her to budge from this position, not even by an inch. She argued from a personal responsibility perspective, i.e., it's the driver's duty to stop, look, and listen at a railroad crossing...if anyone drives his or her car in front of a train and gets hit, it's that person's fault, end of story.
Admittedly, I was surprised this woman was such defense-oriented juror. So I went back and read the responses to her background questionnaire, which was administered to all the participants before the start of the mock trial.
Here are some of the items she agreed/disagreed with on her questionnaire:
Railroads are a net benefit to the community - Agree
People who sue have a legitimate grievance - Strongly Disagree
Civil lawsuits have made society safer - Strongly Disagree
There are far too many lawsuits today - Strongly Agree
People are too quick to sue rather than work things out - Strongly Agree
Jury awards today are generally too high - Strongly Agree
There are too many frivolous lawsuits nowadays - Strongly Agree
The amount of Government regulation on railroads is - About Right
A bigger threat to the country is Big Government (compared to Large Corporations)
Now it makes sense why this particular juror would be a person the plaintiff's attorney should strike at trial. The point should be obvious: a person's attitudes, beliefs, experiences, and feelings are a much better predictor of future behavior than their demographic background. This isn't to say demographics aren't important, or should be ignored - they do tell part of the story - just not as much as attitudes, beliefs, experiences and feelings.
To drive the point home even further, let's flip this around for a second. Let's assume the first thing you learned about this prospective juror was everything in the second bullet point list. You'd be pretty confident about her plaintiff/defense propensities and you'd be right; whereas, if you only knew the items in the first bullet point list, you'd think you'd be pretty confident about her plaintiff/defense propensities, and you'd be wrong.
For more on how to improve witness preparation, check out the following posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135
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