New and young lawyers will definitely receive training on how to conduct voir dire. Unfortunately, training on how to properly conduct a post-trial interview of jurors is far less ubiquitous. Voir dire relies on assumptions about how a juror may respond to the facts and case presented. These assumptions are based on his or her background and other personal attributes. A properly conducted post-trial interview provides insight into the thoughts of a juror and the juror’s analysis of a case. Attorneys use post-trial juror interviews to openly discuss juror opinions. These interviews are especially useful to obtain feedback and analyze the effectiveness of the trial strategy, attorneys, and witnesses.
Attorneys can use post-trial juror interviews to determine where jurors could not agree. For instance, in a recent wrongful death case, the attorneys from both sides briefly interviewed jurors in the hallway after trial. This specific case ended in a hung jury. There was animosity among the jurors because of their inability to reach a verdict. A small group of jurors exited the court room and could not be interviewed. The remaining jurors congregated in small groups outside the courtroom. The attorneys spoke with the jurors, but any chance of effectively interviewing jurors was frustrated because of the attorneys’ inability to speak with jurors individually and away from opposing counsel. Neither side wanted to openly discuss juror opinions for fear of informing opposing counsel as to their theory of why the jury could not agree. However, these attorneys could have taken steps to better manage the post-trial interview process, as discussed below.
The first step to a successful trial interview is to understand local rules regarding communication with a juror. A trial court determines if and when a juror interview may occur. Some courts prohibit post-trial interviews while other courts allow them upon request. The majority of courts thank their jurors for their service and advise them that they may speak with the attorneys about the case, but jurors are also advised that they are not required to do so.
Many attorneys choose not to conduct juror interviews when the verdict is in their favor because attorneys fear the interview will reveal details that could lead to the verdict being overturned. While that may be a legitimate concern, if opposing counsel appears likely to appeal or if the verdict was against your client, then it is worth considering doing a post-trial juror interview.
Assuming a post-trial interview is allowed, the second step is to determine when the interview should take place. Before the trial concludes, decide when and where you will speak to the jurors. It is also helpful to think of the subject for your conversations. It is usually difficult to have any meaningful conversation with jurors immediately following trial because these conversations are often rushed. The conversations are rushed because some jurors may feel overwhelmed with the process and simply want to leave, but there is also the possibility that a juror may be talkative and you will not be able to break to speak to a different juror. It is most efficient to introduce yourself, thank the individual for jury service, and ask whether you can contact the individual later to discuss the case. Once you receive contact information, make the call within two to three weeks of trial and contact as many jurors as possible.
The third step is deciding who should make the call. Jurors answer questions differently based on the person to whom they are speaking. Jurors may be more willing to go into detail when answering questions for the side they favor. Some jurors may be more willing to speak with someone other than the lawyer from trial. Helpful alternatives include paralegals, staff, or a third-party vendor. It is best that whoever makes the call introduces himself or herself, states the party he or she represents, and explains the purpose of the call. It may be best that the interviewer be someone other than the attorney who conducted trial in order to avoid potential bias in the interview. Any initial reluctance to discuss and share will often go away once a caller establishes rapport with a juror.
Finally, what information should be discussed? Before making the call to jurors, it is best to outline the intended subject matter. Attorneys often think that they know what information is or is not important at trial. The jury may believe differently. Look to determine what facts the jurors considered important and what strengths and weaknesses of the case they saw. Allow jurors to talk about what they considered important and why. This can all be achieved by asking open-ended questions. The following are some example questions: What facts or information was persuasive? Were there facts or information that jurors wanted but did not receive? How did the jurors deliberate? Did any juror strongly advocate for a specific side? What does the juror remember from opening and closing arguments? Which witness was most persuasive? Were trial aids effective? How were damages decided? What did the juror think of each attorney? Most importantly, listen to the jurors and use their comments to lead the conversation.
An attorney should document all information received in a post-trial interview. This information can be extremely helpful for later use and analysis. Ask a juror’s permission to record the interview from the start of the call. This can avoid missing information because it can be difficult to take notes and listen. Whether or not the interview is recorded, make sure the information is summarized in a memo for preparing to try similar cases. In addition, share the information with the critiqued attorneys for their use and reflection.
Ultimately, post-trial juror interviews are extremely helpful to gather information on what went right or wrong. Attorneys often do not receive feedback on their performance. A juror’s opinion and feedback are important for future cases. Being open to listening is key. Jurors often have many thoughts and reactions they want to share, and these are likely the concerns they had in their analysis of the case.
Edd Peyton is with Lewis Thomason King Krieg & Waldrop, PC, in Memphis, Tennessee. Escarlet Escobar is a third-year student at University of Memphis School of Law.