United States: Importance Of Jury Selection, Technology And Expert Testimony

Originally published by The Legal Intelligencer

Ronald L. Williams authored The Legal Intelligencer article, "Importance of Jury Selection, Technology and Expert Testimony."

Successfully trying a construction case to a jury requires thoughtful selection of a jury, effective utilization of technology and preparation of expert testimony that is utilized persuasively. Trial counsel who utilize and complete these tasks effectively have an excellent opportunity to prevail at trial.

When it comes to jury selection, trial counsel cannot wait until the eve of trial to think about the composition of a jury. Nor can trial counsel walk into voir dire without knowing all of the rules for jury selection, which may be unique to that specific tribunal. That may sound easy, but both are critical to complete effectively. Remember preparation and opportunity in jury selection can lead to success in the identification of jurors inclined to find your case attractive.

Trial counsel must know the manner in which the judge will hold voir dire. Sometimes the judge conducts most of voir dire, sometimes it is left to others, including, but not limited to, counsel. Trial counsel also needs to know what type of information will be supplied about prospective jurors and be able to assimilate that information in a manner that allows the best use of trial counsel's ability to strike jurors. Striking jurors to avoid more "problematic" jurors must be done sparingly—and with great precision.

Trial counsel must demonstrate during voir dire an ability to introduce trial themes. During this process, trial counsel must begin the appeal to the jury by virtue of the themes, understanding that some jurors, bringing their own experiences to the case, will find some themes appealing and others less attractive. Additionally, trial counsel needs to carefully record with precision responses to each question posed so as to utilize strikes for cause. Of course, jury selection constitutes a team effort. The team must consist of trial counsel, the client, and, if appropriate, a jury consultant. Each must understand the pros and cons of each prospective juror and be able to exercise judgment to help formulate the best possible panel. At the end of the day, common sense in selection cannot be understated. Selection of a jury, after all, is not just the first opportunity to introduce the case and its themes, but it is also an opportunity for trial counsel to introduce the client and entire trial team. Remember, jurors usually reach the right result and having an appreciation for this portion of the process can lead to a jury panel that heightens the probability of success. Trial counsel must, as well, take the process very seriously.

Notwithstanding these recommendations, the case can take a turn for the worse even with the best jury. Once in defending a case, opposing counsel gave a 60-minute opening at the end of which almost half the jurors were asleep. Needless to say, the judge took a break so that the jurors could freshen up and the case settled shortly thereafter with a recognition by the parties that even a good jury panel can be bored to tears by one side or the other or both.

On the subject of technology, trial counsel must recognize that effectively utilizing a technology expert and high-level equipment will entertain a jury and heighten the probability that the case ends in a positive result.

Today, trial courts rely heavily upon trial counsel who recognize the importance of effectively using technology. Therefore, trial counsel must impress upon a client that it is critical to maximizing the probability of success to retain a technology expert and have that expert engaged in the case as early as possible. Obviously trial counsel and clients have a sensitivity about costs, which can and should be contained. However, having a technology expert absorb and understand the exhibits will enable the effective presentation of witnesses, both lay and expert, introduction of the documents, as well as solidifying openings and closings. Trial counsel should not give up utilization of exhibits in hard copy form. However, use of exhibits in hard copy form should be more for effect. There are technology experts who demonstrate a high level of understanding of the subject matter of the litigation and the law, and then there are technology experts whose expertise is more confined to everyday technology. So long as it is feasible, it is better to have an expert who is willing to understand the subject matter and understand the law than it is to simply have somebody whom trial counsel might refer to as a technology expert alone. The difference can manifest itself in a way as basic as a technology expert putting an exhibit before a jury that has been precluded by a prior ruling of a judge. In such an instance, it is hard to reverse course once the exhibit is in front of the jury as jurors typically pay close attention to the documents themselves and the language on the screen. A highly skilled technology expert does not make such a mistake. A technology expert must know the exhibits that will be utilized in openings, with each witness, with each cross, as well as closings. If the technology expert understands the script for each witness, then no time will be lost and the presentation proceeds smoothly. However, if the technology expert is flailing for documents, unsure of which exhibit to put up or simply cannot get the document to appear on the screen, the court and the jury will be less than impressed. Likewise, the client will draw its own conclusions. Therefore, orchestration is everything, and the client has to understand that. For this reason as well, early involvement of somebody highly qualified can maximize the probability of a desirable result for the client.

Finally, the utilization of experts in construction litigation constitutes a critical step that all too often is not completed effectively. Obviously, clients frequently do not want to spend money on retention of an expert early and yet the payoff or return on investment can be huge. After all, retention of an expert early and utilization of that expert during the discovery process can afford trial counsel the opportunity to request precise discovery. Further, early retention of an expert can educate trial counsel on all aspects of the presentation and, frequently, the need for retention of additional experts.

In this day and age, jurors expect, as do courts, specialists. Even if an expert survives an appropriate motion, you need to ask the question early—is the expert that has been retained truly a specialist or a jack of all trades? The latter can leave a jury unimpressed and, potentially, lead to a bad result.

Through early involvement, the expert can provide a comprehensive report that addresses all necessary aspects of the case. Frequently, experts do not appear to understand their role in a litigation and, as a result, can issue reports that contain opinions that are not helpful or, worse, embarrassing. A good expert report can contain less content rather than more. Sometimes experts think that a book with numerous exhibits will carry the day. However, exhibits poorly prepared can provide effective ground for cross-examination by trial counsel who can undercut the expert's credibility through the opinions offered in the exhibits provided.

Of course, if trial counsel obtains the consent of the client for early retention, and trial counsel cannot obtain the opinions through an expert that are needed, sound alternatives can be considered on a timely basis. Frequently, because of client concerns about costs, an expert is retained after considerable legal fees are expended. That should be avoided.

Assuming that the expert can prepare a report that can withstand scrutiny, the expert needs to be able to present the findings of the report in a manner that is entertaining and, in effect, in a manner that involves teaching and not simply lecturing. The jurors, like most people, do not appreciate the "lecture" as much as they appreciate someone who takes the time to teach. All too often, experts can be so impressed by their own credentials that jurors are left unimpressed.

Of course, through effective voir dire, ferreting out the true credentials of an expert can be effective. Effective voir dire or appropriate motion can narrow the opinions that can be offered by an expert.

Finally, if an expert has the opportunity to observe the testimony in court, the expert can be more comfortable, more persuasive, and, of course, potentially lead to a much better result. Naturally, if an expert can be present during opposing counsel's expert testimony, the expert can then offer meaningful rebuttal if appropriate. Through being present, at the very least, the expert can provide trial counsel meaningful input for purposes of cross-examination.

In summary, trial counsel who carefully and thoughtfully prepare for jury selection increase the likelihood of success at trial. That likelihood experiences further enhancement by trial counsel who utilize technology and a technology expert effectively. Finally, utilizing the appropriate experts effectively will enable the client to have maximum opportunity for success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.