April 03, 2016 practice points

Do-It-Yourself Jury Surveys

A jury survey allows jurors to give feedback into areas where you can improve

By Hon. Mark A. Drummond

"You were very polite, looked neat, and brought out many small points in the defendant's favor." This is a response to a juror feedback questionnaire.

Unfortunately, for me, this was feedback I received from a case I had lost. Although gratified that this one juror thought I was both polite and neat in my appearance, it was little solace to my client that I brought out many "small points" in his favor. Fortunately, the feedback was for my eyes only.

For nearly 20 years as a trial attorney, I sent out a juror feedback questionnaire. When I became a judge, I continued the practice. While your verdict is the ultimate feedback, the verdict only tells you what they decided. It does not tell you the why and how of their decision. It also does not tell you who led the charge for or against you.

The Benefits

What is the benefit of a jury survey? With a case you lost, the answer is obvious. With a good survey, it may give you some insight into areas where you can improve.

Why send out a survey in a case you won? After all, what more do you need? I have always thought that the primary reasons bad habits become entrenched come from those cases which attorneys win. The case is won and the conclusion reached is that, from an advocacy perspective, everything was perfect. So, there is a hesitancy to change anything. If it worked once, it will work again.

Seasoned advocates know that the advocacy is only part of the equation in a win. The facts, the law, and how the witnesses come across all play a large part. If an attorney translates a win into advocacy perfection, they are making a mistake.

Only by sending out a jury survey will the jurors get a chance to tell the winner—or the loser—whether or not they were too repetitious, too strident, or too sarcastic. They might tell you problems they had hearing a particular witness or seeing a particular diagram. Some absolutely love the process and go as far as outlining the back and forth thought process that went on in the jury room. Insight and feedback like this are priceless.

Getting Started

You first need to find out whether jury surveys are even allowed in your state, in this particular court, and by this particular judge. I believe you need to check all three levels before contacting any juror after a verdict.

Some jurisdictions have a flat prohibition against contacting jurors. Evidently, the thought is that they have done their duty and we do not want to impose on them anymore. Some courts may have the same restrictions, as do some judges. So, you must first make very sure that sending the survey is proper.

The Survey

When I was an attorney, I always made sure to include these four questions on the jury survey:

  1. What did you like best about the jury trial experience?
  2. What did you like least about the jury trial experience?
  3. As a trial lawyer, what did I do best during the jury trial?
  4. As a trial lawyer, in what areas could you see improvement? (Please be brutally honest with this question. You will not hurt my feelings and it could only help me improve.)

My thought behind this questionnaire was that I wanted the questions to be few and very simple. I also wanted to make very sure that they should feel free to offer any criticism. This invitation to criticize—whether about a habit of mine that was distracting or something that may have offended them—was repeated in my cover letter.

Most judges wanted me to wait until the jury term was over before sending the letter and questionnaire. The judges did not want them to be receiving feedback questionnaires during the middle of the jury term. However, once I had the judge's permission, and once the jury term was over, the letters were sent that day.

I found any delay in sending the letters severely affected the return rate. In addition, you will find that your return rate is higher on cases that you lose versus the ones that you win. I guess it's like "Come on, you won the case. What more do you want from us?"

The questionnaire I now send out as a judge is a bit different and includes a specific question seeking their feedback on the new rule in Illinois, which allows for jury questions. Now, I ask these five questions:

  1. What part of the advocacy, or presentation in the case, did you find persuasive?
  2. What part of the advocacy, or presentation in the case, did you find not persuasive?
  3. What did you find out about the process that you like?
  4. What did you find out about the process that you did not like?
  5. Do you have any feedback on questions from the jury?

I, too, wait until the jury term is over and I also wait an additional 30 days to make sure I have no post-trial motions. This delay does not seem to affect my return rate. I would imagine since it is a judge asking the questions, they are more responsive.

Additional Tips

In addition to the questionnaire and cover letter, it is essential that you enclose a self-addressed stamped envelope. I found that a 50 percent return rate was exceptional, and usually only about one-third of the jurors would return their questionnaire.

In my cover letter, I added "I would welcome the chance to talk with you about how the case was presented to you. If you would like to talk about the case, please let me know the best way to reach you at a time convenient for you." Some jurors, especially those involved in lengthy trials, love to talk about the advocacy.

After all, jury service, at first, makes most people apprehensive. However, after they are done, most feel a sense of satisfaction for doing a civic duty for something that was very important to the people in court that day or week. They like to talk about that experience, especially since they were prohibited from talking about the case during the trial.

If they are willing to talk to you then you might be able to do some very unscientific, demographic research. I found that, for the most part, the older the juror, the more likely they were to want to talk about the case. From these interviews, I formed the idea that we may truly not want a jury of our peers!

This conclusion came from a case where I represented a young female teenage driver. The older jurors on that case gave her the benefit of the doubt and found in her favor. The older jurors told me that they wished I had not picked so many younger jurors. Her "peers" had judged her more harshly.

It is no surprise that more jurors were willing to put down personal contact information once I became a judge. I would imagine there would be a hesitancy on most jurors to critique advocates in the first place. Second, if the advocate requesting the information had lost, a hesitancy to talk to that advocate is understandable. Third, some jurors might not be sure if the survey was approved be the judge.

There were some judges who would allow me to put on my cover letter that it was being sent with the judge's permission. This definitely increased by return rate. If I felt that counsel's contact would be professional I would now also allow them to put my stamp of approval on the jury feedback questionnaire. However, to date, no attorney has ever asked for my permission to send out surveys.

From doing these surveys for nearly 40 years, I received not only good feedback on advocacy, but also comments received about witnesses. Most of the comments were about the experts.

Although the questions are tailored for input concerning the advocate, jurors seem to love to comment on the doctors, professors, or "experts," who they obviously considered to be hired guns. Given some of the feedback, I would seriously question hiring certain experts again.

To whet your appetite even further, here are a few of my favorite responses. One juror wrote, "I feel that with all of your evidence you had a very strong case—clear up until the end. The verdict was hard to come to." Perhaps I should not have given my closing argument?

On the question concerning improving my performance, one juror responded, "You're OK now—improvement isn't necessary." It was nice to know that they thought no improvement was necessary, but the appellation "OK" is not exactly a ringing endorsement, is it?

In my next column, I will give you tips gleaned from all of these jury surveys and compile the commons threads that seem to appear in survey after survey. Until then, good luck with your trials.

 

Mark A. Drummond is an associate editor for Litigation News and associate circuit court judge of the Eighth Judicial Circuit of Illinois.


Keywords: jury survey, repetition, persuasiveness, visual aids

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