Choosing the Right Juror Can Make or Break Your Case

 

Episode Synopsis: As a jury consultant for some of the nation’s most noted cases, including the Unabomber and the Boston Marathon bombings, attorney Denise de La Rue explores what lawyers can do to ensure they’re picking the best juries possible to represent their client’s most compelling case. Denise also shares how she uses focus groups and mock trials to prepare a case for trial and to win more favorable results in negotiations, as well as how to best prepare a witness and why pre-trial research can greatly impact the strategies used in court.

Podcast Transcript: The following is a transcript of Episode 1 of The Advocate’s Key podcast hosted by attorney Scott Key. Other episodes can be found at Apple Podcasts, Google Podcast, and Spotify.

Denise: I’ve done post-trial interviews. Usually, that’s when things did not go well for whoever’s hiring me to go back and talk to the jurors after the fact. And you’d be surprised at the times I’ve had a juror say to me, you know, “I don’t know why the attorneys didn’t ask me that. I kept thinking they would, I kept waiting for them to ask me and they never did. If they’d only asked, they would have known, like, I was not gonna be a good juror for them.”

Scott: That’s Denise de La Rue, trial strategist and jury consultant. Here, she’s sharing what it’s like to discover too late in the game that you were not thorough enough in jury selection, that you didn’t ask enough questions, or you didn’t ask the right question to discover the juror or jurors who made it onto the panel who were not the right jurors for your case. In this conversation, Denise and I discuss how jury consultants can transform what it’s like to practice law in trial, what it’s like to engage in litigation, and how jury consultants can change the game for you in a night or day sort of way. And even if you have a trial where there’s no budget, or there isn’t sufficient budget to use a jury consultant, how you can take some of the tools from the jury consultants toolbox to become more intentional in terms of choosing and selecting the right themes, thinking about jurors, preparing for trial, selecting your juror and executing when you get to trial.

My name is Scott Key, and you’re listening to “The Advocates Key” podcast, a show that explores the art and science of litigation with some of the nation’s top thinkers. For more information and content like this, go to scottkeylaw.com. All right. So, I’m joined with Denise de La Rue, I never know if I’m pronouncing your name right.

Denise: Yeah, perfect.

Scott: All right, and this is my first podcast. And so, Denise, you were the first person I thought of.

Denise: I am so excited. I loved…when you said that I was just thrilled. I’m not sure I deserve the honor but I’m delighted to be here.

Scott: So, introduce yourself, tell the listeners who you are and a little bit about what you do. I have a couple of introductory things but I thought I’d let you introduce yourself first.

Denise: Okay, well, I’m a jury and trial consultant. I am actually an attorney, but I have strictly a consulting practice. And that can mean different things depending on the type of practice a trial consultant has. But the major areas that I focus on are assisting attorneys with jury selection, doing pre-trial research, such as focus groups, or mock trials, and then preparing witnesses to testify for trial or deposition. I work in civil and criminal cases, and I go wherever the cases are throughout the United States from Honolulu to Miami, sort of my consulting area. And I have to say what I do is in no way, shape, or form near what the show “Bull” portrays. That’s just not the reality.

Scott: What about the movie “The Runaway Jury?”

Denise: Yeah, you know, it’s been a while, honestly, since I’ve seen that or read the book but it’s…you know, fiction is…If you were to watch in real-time what I do, it would not make for necessarily good television. So, everything is dramatized, we never have juror identities soon enough to do the kind of things that they showed in “Runaway Jury” nor would people have the resources. So, there may be a kernel of truth, as they say, I’m not sure “Bull” even has a kernel. But yeah, pretty much that’s not reality.

Scott: So, going back, I think you majored in psychology when you were an undergrad and then you went to law school at Georgia State?

Denise: Yeah, I did. I majored in psychology. And then I was doing some graduate work, I thought that was the direction I was going to go. And then I happened upon this wonderful world of jury consultants and decided, actually, that’s what I wanted to do. And I realized I could get a JD faster than a Ph.D. with no dissertation. So, I jumped ship there and went to law school, always with the idea of having a consulting practice though.

Scott: So, you went to law school with the intent that you were gonna become a consultant or a jury consultant when you got out.

Denise: And in fact, I was doing jury consulting while I was in law school, which made for challenging time management, but yes.

Scott: Did you do mock trial and moot court and things like that when you were in law school?

Denise: I did not have the time because I was doing it in real life. Yeah. So, no, I didn’t.

Scott: So, at what point did you know you were gonna go in that direction? Was this in undergrad that you figured out this was something that you wanted to do?

Denise: No, actually, I was in undergraduate school finishing up and I was also working as an actor and a writer, having nothing to do…I had been on jury duty once, but that was my only experience with the courtroom. And I got hired to be an actress at this program I know you’re familiar with called the National Criminal Defense College and for years was in Macon, Geordia at Mercer Law School, hosted there. And as a part of the continuing education, they hire actors to play witnesses being cross-examined or to play a client in a client interview setting. So, I went down did that and it just rocked my world, it just opened up a whole new world for me. And through that, I met a jury consultant, Kat Bennett, who sadly is no longer with us. But in talking to her decided, well, I think this may be what I wanna do.

Scott: Oh, got you.

Denise: So, I started volunteering to help public defenders and I found out yeah, this is what I want to do. And by that time, I knew some lawyers who were on faculty there and asked, could I volunteer to help them with a case? They were kind enough to say yes and then they started paying me a little money and referring me to other people and here we are, 25 years later.

Scott: You also were very instrumental in a mock trial, even right down to clothes that a person who’s accused might wear at counsel table. I know that you gave some good advice there in terms of come out of the…you know, maybe dial down the power suits and wear cardigans or sweater vests. And I think you were kind of instrumental even at that level.

Denise: So, if it’s okay, I’m gonna talk generically instead of about a particular case, but my memory is not different than yours. So, about the clothing aspect, do you wanna start there or [crosstalk 00:07:00.475]?

Scott: Sure, absolutely.

Denise: Yeah, I think, and, you know, what I hope people understand is, I would never be a part of anything that was to say let’s costume your client or make your client look like somebody they’re not because that just doesn’t work. Nobody’s trying to pull one over on the jury or the public or anything else by “cleaning somebody up” other than we would all clean ourselves up, right? If we were gonna be a witness in court, you and I wouldn’t go to court dressed like we probably are right now. So, of course, you know, it’s important to think about how you dress is appropriate for a proceeding.

But I think attorneys too often want to dress their client, honestly, like an attorney, you know, everybody has to wear a suit and tie because that’s what attorneys wear or, you know, whatever the equivalent would be, there’s a little more flexibility with women probably. But a lot of times clients aren’t used to wearing suits and ties, or that’s just not how they’re the most comfortable. And we don’t want people to perceive them as one of the trial team. So, if someone is more comfortable in a cardigan and a pullover sweater and a tie or, you know, a female client doesn’t need to wear a suit like the attorneys do then, you know, that’s just sort of what I try to do is give people permission to dress in a way that’s comfortable, that’s authentic to who they are, and also shows, obviously, respect for their proceeding.

Scott: So, one thing is we tend to think that the way you…we being lawyers think that the way that you dress professionally in court is the way lawyers dress in court. And so, we tend to wanna dress up our clients like they’re also lawyers.

Denise: Yeah, exactly.

Scott: So, I hear a lot of attorneys say, or particularly older attorneys that are kind of suspicious of jury consultants and, you know, they seem to think that they have this sixth sense for, you know, what works and what doesn’t. What does a jury consultant add to a civil or criminal trial that perhaps just lawyers, you know, even the best of lawyers wouldn’t necessarily bring to the table?

Denise: Well, I will say if an attorney with a lot of experience or whatever age doesn’t think they need a jury consultant then I’m not gonna try to convince them that they do. If they’re doing something that works for them then, you know, God bless them and continued success. But I think what attorneys I work with would say is that it always helps to have another set of eyes and ears. And you mentioned maybe my thoughts about going a little bit beyond the answer that the juror gives. I think that when you have somebody that is honestly a little more in-tune to listening than most attorneys are, that can be helpful. You know, I’m sitting there not really worried about motions and lemony that I have to argue as soon as the jury is picked or what my opening statement is gonna be, I’m really they’re focusing on what’s going on. And so, I think that’s helpful to have somebody who’s just dedicated to what’s happening in the moment, as we like to say, can be a little more mindful about what’s happening.

I do like to listen, and I think, not to stereotype but that’s not necessarily the strongest skill of a lot of attorneys. And, you know, I like to say, like, the three rules of real estate are location, location, location. The three rules of jury selection are listen, listen, listen. If you ask a juror what they think or feel about something, unless they’re just really gaming you to try to get on or off the jury, which isn’t most of the time, they will tell you. And if you’re curious about one answer, and don’t just check off the box that I got the jurur to answer that question now I can move on and follow up, they’ll really tell you some more.

I’ve done post-trial interviews. Usually, that’s when things did not go well for whoever’s hiring me to go back and talk to the jurors after the fact. And you’d be surprised at the times I’ve had a juror say to me, “I don’t know why the attorneys didn’t ask me that. I kept thinking they would, I kept waiting for them to ask me and they never did. If they’d only asked they would have known, like, I was not gonna be a good juror for them.” So I hope that trials that I work on if somebody were to go behind us and do post-trial interviews, we wouldn’t hear that. I hope we do a good job to the extent we’re allowed for really trying to find out what the jurors think and feel about.

Scott: Well, I’ve just noticed that in jury selection lawyers often tend to come in with their list of questions. And they just ask their questions and, kind of, stumble through it and it seems awkward. And it just seems like if you get that juror who does indicate some potential problems, it’s like the…you know, anytime I’ve heard you speak or heard or other jury consultants speak, I think I go back and I try to, sort of, incorporate some of that just when I pick a jury. And I found that the judges hate this stuff. I mean, judges hate it when you insulate a jury in advance from the rehabilitation questions that are coming.

Denise: Yeah, sure. So, I think that judges and attorneys are used to like, let’s get it done, get a jury in the box. So, a lot of judges, when you talk about rehabilitating, they want a juror to say they can be those magic words of fair and impartial. So, the Georgia Supreme Court, unlike a lot of other states and federal jurisdictions have said that those magic words are not sufficient. And it really admonished opposing counsel and judges from trying to rehabilitate the juror, you know, let’s believe what they’re saying. And for some reason, a lot of there listen to summaries of both sides of the case, they may see some video testimony if there has been any in the trial thus far, video depositions or things like that. Some people use actors to play witnesses or clients, I do not do that. And then jurors split into smaller groups for deliberations and they actually deliberate the case for a time and try to reach a verdict.

Scott: In a mock trial setting, is it typical or is that a place to perhaps get the defendant or maybe a key party witness some experience testifying? Can that be a component of that as well?

Denise: Sure, they could get experience. I think it’s more, I wouldn’t call them live to testify, you could put them on videotape, I think it’s a better tool to judge reaction to a person’s demeanor. And probably experienced testifying comes in a different setting where you can just roleplay with that for a longer period of time. But it clearly lets you get a look at what people who don’t know the client or don’t know a key witness think about him or her. And sometimes they come up with things that gosh, we just never ever, ever would have thought of. So, you know, that can be very helpful.

Scott: Well, I’ve had that experience after a trial. You know, like, win or lose I’ve had that experience where the case was decided on something that I didn’t think…I mean, I didn’t think about or I thought was a minor point. And that’s always frightening. I mean, even if you win, it’s frightening to find out that a case turned on something that you didn’t even really [inaudible 00:14:53] about or talk about in your opening and closing. You know, jurors will fixate on something out of the blue. And I find that cases where I’ve…even if I’ve informally focus grouped it, if I’ve gotten, you know, some colleagues together, you know, the budget wasn’t there for it, and I’ve kind of gone through it a little bit, I find that it cuts down on that factor a little bit.

Denise: Definitely. I mean, we can sit and brainstorm a case for, you know, six weeks, and not come up with questions that real people who aren’t lawyers or don’t work with lawyers have because we’re just looking at it from a very, very, very different perspective. No matter how hard we try, we can’t think like people who haven’t been in a courtroom before.

Scott: So, okay. So, here’s kind of a theory I have and people think I’m kidding when I say this, and this is gonna sound like it’s political commentary but it’s not political commentary. I mean, there may be some implicit political commentary in this. One thing, if there is a silver lining to the last four years of national electoral politics, and the things that have worked for Trump, and those who kind of are falling in line with Trump and the Republican Party,I’ve gotten the sense or…I’ve tried to say this to colleagues, and they just look at me quizzically. The takeaway I’ve gotten from national politics in the past few years is, maybe I should be trying more cases. Because it seems like the jurors that I fear the most being on my jury seems like they could just believe just about anything if you branded it, or messaged it, or themed it in the right way.

Denise: I think that people believe things that are congruent with what they already believe easiest. And I think that people don’t necessarily believe as much of the kind of rhetoric I think you’re speaking of as they suspend their disbelief or they don’t analyze it if the rest of the message is something that they like. So, I understand the dynamic you’re talking about but I don’t think that it necessarily applies to the courtroom where jurors are skeptical of lawyers, and we don’t have anything to offer them or give them.

Scott: Or to the extent that it does, I guess that would work in the favor of the prosecution in a criminal case or in the favor of the corporation in a civil case.

Denise: Depends on who the defendant and who the alleged victim is, right?

Scott: Mm-hmm.

Denise: Well, I think that it would be very different depending on the political bent you’re talking about. If you’re defending a white police officer in an officer-involved shooting versus, you know, an African-American defendant accused of shooting a white police officer. In each of those cases, there was a defendant. Is the defendant a white police officer or an African-American, 19-year-old citizen wearing a hoodie?

Scott: So, the politics could play different ways depending upon who the defendant is and what the defendant’s motives were.

Denise: Sure. Yeah, exactly.

Scott: All right. So, you mentioned a minute ago that part of what you do is you teach at the National Criminal Defense College. What is the National Criminal Defense College? And what role do you play in that?

Denise: Well, sadly, I haven’t…with other obligations, I haven’t gotten to teach in a number of years but I look forward to getting back. The National Criminal Defense College is a continuing legal education program for criminal defense lawyers, and they have different shorter programs during the year, but they come for a two-week session in the summer. My experience is largely public defenders, but certainly also lawyers in private practice. And they just are there to hone their courtroom skills from getting a case file and looking at the facts and the witnesses and finding a thematic approach to it to picking a jury, cross-examining witnesses, putting on their client for direct closing arguments. It’s a remarkable program that brings some of the humanity back into the lawyers’ minds and ethos.

Scott: And these are people, these are not law students. These are people who have been practicing for…

Denise: Oh, definitely. There may be some people who’ve only been at it a year or two and there are other people who’ve been at it 20 years. There’s always, you know, always room to think about something differently or get better. We know that.

Scott: And then when you teach there, do you…I’m assuming you’re focused in the area of jury selection.

Denise: Not only, that certainly, but also just the communications aspect of anything, of the cross-examination, just helping people to look at it with a thematic approach and thinking about what real people want to know, what would make this compelling to a jury. So it’s really probably more of a jury focus to all aspects of the trial.

Scott: Okay, so you’re taking people that potentially have been practicing for a while, and they’ve gone off to be in this program. I feel like in law school, if you have the opportunity to do mock trial or moot court, I feel like there you get a little bit…you know, there’s a little bit of focus on the idea of a theme or theory of the case. And it seems like that kind of goes away. You know, and you don’t really get a lot of that in CLEs. And I even think back to, I’ve thought that I’ve gotten some exposure to themes and theories of the case when I was in law school. But I think probably there’s a lot of focus on maybe developing catchphrases. Like, this is a case about, you know…if you watch high school mock trial, “This is a case about too hot to handle, too cold to hold. I’m Scott Key and along with co-counselor Denise De la Rue.”

Denise: Oh, I hate that. When I used to coach some mock trials, I would say, “Please don’t do that.” And they would say, “We have to, you know, it’s a format we were given.” Yeah.

Scott: So what mistakes or what challenges do you see with lawyers that kind of come through NCDC? Coming in, what are some of the challenges or some of the mistakes you see in a jury-focused approach or the notion of theories or themes of the case?

Denise: Well, you know, it’s just damn hard not to think like a lawyer. Right? So, if everybody could try to think about the case, once you…you got to, of course, identify the legal issues and see what kind of motions you need to…I mean, your brilliance, right, what kind of motions you need to file and argue and what kind of evidence you need to try to keep out or get in, all that’s crucial. But after that, with what you’re left with, not just jurors, people in our everyday lives, we learn and experience the world in terms of stories. And a story doesn’t mean I’m gonna make something up and try to fool you with it. It means that’s the way that we incorporate information. What does this remind me of, what in my life has been similar to this that I can, sort of, round out the details to figure out why this happened? Right?

We always do it. Your child has a friend who makes up a lie and that’s all we know, right? The kid made up a lie that they had a baby in high school when they really didn’t. Okay, what are we immediately gonna do? You and I are going to say, “Gee, why would that kid do that?” And we’re bringing on, you know, if nobody tells me why then I’m making up my own reasons from somebody else I knew who did something similar, and you may have a different story and that’s how we make sense of things. So, being cognizant of that, and realizing that you really do need a compelling story, or narrative may be the word that’s popular now, to tell the jury in order to understand why we’re in court today, whether it’s civil or criminal, it’s just as important.

Scott: Jurors don’t care about the elements of truth.

Denise: Could care less and will…

Scott: Or the jury instructions.

Denise: No, no. And they’ll only really pay attention to them if they’re motivated to, quite honestly. The way that you were talking earlier about, sort of, rationalization that we see going on today, politically, it happens in the jury room. They’re motivated to reach a certain decision, which is what they think is justice. They’re really trying to do the right thing, but the right thing as they understand it. So, yeah, it’s not as important, they will completely disregard an element of an offense, or add an additional one if they think it makes sense in the world. So, yeah, it’s just hard to make the rest of it equally as important or maybe more important once you find yourself in the courtroom.

Scott: So, what are some things you do to teach lawyers to get better at this stuff?

Denise: I guess just continuing to ask questions and following my own curiosity, you know, I by nature I’m curious, and I taught law school for a little bit, a class, as an adjunct professor at Georgia State. And I would just tell my students to please be curious and follow that and see where it leads because chances are the person or the thing that you’re curious about as a person, not as a lawyer, is going to lead you to where other jurors find the heart of the case.

Scott: Well, and even clients want you to do that. I mean, really, clients don’t care about the elements. You know, clients want…Or I even think about when I go to the doctor, you know, the doctor is taking a history. You know, doctor’s perspective is he’s getting a history for the chart and what I think I’m doing is not giving you a history, I’m telling you why I’m hurting or I’m trying you what’s wrong, and it’s usually in the form of a story.

Denise: Yeah, absolutely. And there have been times probably with all of us that when the doctor is ready to leave the room, having asked all of her questions or his questions, we say, “Ooh, ooh, one…there’s something else I really wanted to say,” you know. And so, you know, that’s something we can learn with our clients, too, is be sure to throw that out, what else? What have you not told me? You know, that’s one thing I’ll always say to clients when I’m preparing them for trial or deposition is, or any witness, what is the one thing that you hope they don’t ask?

Scott: Oh, that’s a good question.

Denise: Because we can…And sometimes it’s something that they…sometimes it’s like, oh, something we really needed to know. Sometimes it’s something they never would have asked, but the witness is just worried about it. But you find out a lot with those kinds of informations. Or, what’s a question you’ve thought about asking me, but you decided not to, go ahead and ask me that now. Or, what’s something I haven’t asked you that I probably should? You know, those kinds of things.

Scott: Are there questions like that, that you can ask in jury selection?

Denise: Yeah, sure.

Scott: What are some examples?

Denise: Are any of you sitting here with something that you think I really need to know and I just haven’t asked the right question, or I haven’t asked the question right? Is there anything else you think that any of the parties of the court would like to know about you as it might impact your jury service or affect the case or you just thought about while you’re sitting here? Those kinds of catch-all questions, and not everybody’s gonna speak about it. But the few that do, it’s usually manna from heaven, it’s usually like holy moly, you know, how did I…what if I hadn’t asked that?

Scott: That’s the juror that probably would have told you after…

Denise: Yeah. And the post-trial interview, right.

Scott: After you’ve lost.

Denise: Right, exactly.

Scott: You should have asked me this question.

Denise: If only you’d asked me that. Yeah.

Scott: Okay, so let’s…I’ll just kind of ask you…so just kind of covering the spectrum here. If there’s a case where there’s a good bit of, you know, the verdict is potentially huge and you do have the budget to do everything you can in terms of, you know, preparation for your jury, focus group, mock trial, having a jury consultant present, what are the range of things that a lawyer could do to, sort of, maximize his potential with a trial jury?

Denise: Well, so this doesn’t happen nearly as often. But depending on if there is press about the case, or there are issues about the case that impacts community, let’s say, if it involves something environmental, if there have been, you know, a certain part of town, utility company charged with dumping waste somewhere that’s impacted the community, something like that, even if you’re not trying for a change of venue, then sometimes people will do community surveys where you actually do a telephone survey with, you know, 200, 300, 400 people in a community to, sort of, see where the venue stands on certain issues. So, that’s something that’s definitely on the higher budget side of things but that can be done. Focus groups, like we talked about, more than one, exploring issues as well as, sort of, broad-brush facts about the case, mock trials, as we’ve said. Working with, sort of, more theme development, working with witnesses and clients before they testify.

Sometimes in cases if the issues are particularly sensitive or if there’s a lot of press about the case, you might get a juror questionnaire so that you can actually start to learn about what jurors think in more detail before you see them in court. Now, there’s availability, if you get a jury list and time to do a lot of social media research. In fact, you may have read the opinion in United States versus Tsarnaev, the Boston Marathon bombing. The sentence in that case just got reversed, in part because of the judge not allowing follow-up on some social media issues. Sometimes people have a shadow jury, I don’t much like this, but they’ll have three or four or five or six people sitting in court watching the entire proceeding. And they’re debriefed at the end of each day to say, what did you think? And that information goes back to the attorneys. That’s pretty elaborate but it does happen.

Scott: Okay, so say more about that. So, I’ve never heard of this before. So, you would put people in the courtroom. And are these like a cross-section of people?

Denise: Yeah. And ideally, you can’t do it exactly, you know, you try to get, let’s just say, four to six people that would somehow resemble the diversity of the people that are actually on the jury. So, you know, you wouldn’t get four Ph.D.s if you have a mostly blue-collar jury, you’d try to get people whose perspectives would, sort of, match that, maybe generally demographically match it. And they sit in court, they don’t know which side they’re working for because that could bias their opinion. So, you have somebody, kind of, managing them. They, you know, listen to what’s going on. And then at the end of the day, they’re debriefed by that person on whatever issues the attorney paying for it thinks are important. And that information goes back to the attorney. So, in real-time, they might alter what they’re doing a little bit based on what these people report.

Scott: No, why don’t you love the idea of that?

Denise: I don’t love the idea because in order for it to work…you know, as you well know, there are times in court where a lot goes on out of the jury’s presence. So…

Scott: And they may see some of that.

Denise: Yeah, they either have to see and hear it, which means they no longer now have the perspective of the jury. Or each time the jury leaves the courtroom…

Scott: They have to leave.

Denise: …they have to leave.

Scott: And you have to manage that or somebody…

Denise: Yeah. And it doesn’t take too long before people start wondering, even the jurors, who are these six people who get up and leave every time we do and come back in?

Scott: And it might make you appear a little slick.

Denise: Yeah. So, I think it becomes…you know, can become more of a spectacle. Of course, I’d like to say, just hire me to sit there, which I do sometimes. I mean, sometimes this is called, like, courtroom monitoring, that’s another thing. I will sit throughout a trial, sometimes a counsel table, sometimes in the gallery, even though, you know, obviously, I know what’s coming or that kind of thing. But it at least gives another perspective besides one strictly of the lawyer. But, you know, a lot of lawyers like that shadow jury thing, and I agree it has an appeal to it, obviously. But I think it can just really present more problems than sometimes it’s worth.

Scott: So, let me ask it the other way. So, that was the if you have the budget, these are things you can do. Suppose you don’t, suppose that you are…this is just a basic, you know, this is a jury trial, it’s very important to your client. But, you know, you don’t really have the budget for much of anything, you really can’t get a professional to help you with a focus group. The money’s not there for a jury consultant. But you really wanna try to do everything you can for your client, preparing for a case and being mindful of the jury during the case. What are some things you could do to sort of replicate focus grouping your themes or having a mock trial? What are some things you can do if you don’t have a lot of money?

Denise: Well, you know, obviously, it’s challenging, but it’s amazing that people will work for pizza, people love to eat, they love free food. So, if you wanna have an informal focus group on your own, and you really don’t have the funds, then I would try to get together a group of non-lawyers, preferably who don’t know you, who don’t know the lawyer. So, you might do that by calling half a dozen or 10 friends and saying, “Can you send me somebody who’s not a lawyer? It can be another soccer mom you know, or soccer dad, or it can be the person that cuts your hair, or takes care of your lawn, or somebody that you work with at your offic that’s like one or two steps removed. Would they be willing to come to, you know, my office for two or three hours and eat pizza and get a $5 Starbucks gift card or something like that?” And get them together and talk through your case. I mean, is it perfect? No, but are you gonna learn something? You know, absolutely, you are. So, that’s one thing you can do.

And another thing for help in the courtroom, it amazes me how often people go to court, lawyers go to court with no help. And there’s no way that you can take notes, engage with a juror, you know, and do all that stuff by yourself. So, students, whether it be in law school, or maybe even better, you know, sociology or psychology, would think that it’s really cool to go sit in a courtroom at counsel table, if possible, and just be there to take notes, make observations and, you know, that sort of thing to help you out. So, I think it’s great to give students that experience and also get yourself some free help. And I think those are a couple of things I always recommend.

Scott: And so, you mentioned Tsarnaev. Am I pronouncing that right?

Denise: Tsarnaev.

Scott: That’s the Boston Marathon case. And so, I think you actually worked on that case.

Denise: I did.

Scott: And you’ve worked on several cases with Judy Clark, I think, from reading up. I know that from what I’ve read of her, and I don’t know her personally, I know that one of the things that she does well, from what I’ve read, is she really gets to know the client very well.

Denise: Oh, yeah.

Scott: And spends, you know, just a tremendous amount of time. It seems like spending time with and getting to know the client seems like that’s as big a component to her preparation for trial as the legal research and the courtroom stuff. As a consultant, and again, I’m not asking you to reveal anything that’s privileged, when you work on those, you know, cases at that level…and you know, gosh, she’s done…I think you worked on the Ted Kaczynski case with her and…Do you as the consultant also participating in getting to know the client like at that level?

Denise: Yeah, sure. I mean, in both those cases you mentioned, Kaczynski, who is the Unabomber, people might recognize that more than his name, or Tsarnaev, you know, we were about six weeks, I think in both cases, picking a jury. So, I’m sitting by them or in the same table every day for that length of time so you do get to know them very well.

Scott: Is that a component of the pre-trial preparation in your role or…?

Denise: I mean, you got to know why you’re there, right? You got to, as Molly Ivins used to say, dance with the one that brung you. So, I think that’s an important part of every…it might not be for a lot of consultants, you know, some trial consultants are pretty siloed into just the area of the jury and that’s it. But it’s certainly always an area I’m interested in and it’s who we represent, it’s why we’re there.

Scott: So you as a consultant, again, I guess we go back to you have a good bit of a budget. When you say siloed, I think I know what you mean by that, but tell me the notion of being siloed in terms of the way a jury consultant might be used versus the use of a jury consultant, kind of, in the opposite direction.

Denise: So, I think a lot of people want a jury or trial consultant, you know, to do their area and just stay, sort of, in that field, and it’s not that important for them to be more inmeshed with the trial team. And that’s strictly a style or the preference of the lawyers and to a great extent, I guess, the personality of the consultant or consulting firm. Like, there are consulting firms, nationally, bigger than law firms. Those consultants probably tend to be a little more in their area. And then there are other times…and, you know, those cases you mentioned were death penalty cases. So, that’s different too than a large corporate, you know, case.

Scott: Well, those are heavy mitigation-focused. I mean, generally, in cases like that, guilt-innocence is not what you’re there for. And so, I guess, with the mitigation-focus, your knowledge of the client, and your having the client trust you as a…and sometimes in some of those death penalty cases…and I’m speaking more generally, I’m not speaking necessarily in terms of the ones that we named.

Denise: Yeah, sure.

Scott: You know, sometimes it seems like trial counsel or the trial team may be trying to save the client’s life against the client’s own wishes to be executed.

Denise: And that’s probably more the exception. Well, so I guess sometimes the…I can’t think that I’ve worked on a case, though I’m certain it occurs, where the client at trial really wants to be executed. Sometimes they disagree with the way you’re going to try to save their lives. You know, typically, if they wanted to be executed, they could plead guilty and go for it. In the case of Dylann Roof, you know, he didn’t wanna be executed, but he fired his…that I know of, but he fired his lawyers and what pro se. So, that kind of thing happens. But there can certainly be disagreement on their part on the kind of strategy that attorneys wanna use, or the kind of evidence they wanna present to try to get a jury to say, “This person, we’re gonna let them live.”

Scott: When you are in a situation where you are not siloed, where you were, you know, very integral to the defense team, when do you typically get involved in a case?

Denise: Hopefully sooner rather than later.

Scott: Okay. So, ideally, like if someone were gonna bring in you as a jury consultant, or a jury consultant in general, when really is the ideal time to bring that person on?

Denise: You know, I’ve just in the last few weeks gotten a call on a couple of cases. One will be capital and one is not, a more white-collar case, before the indictment. Those are attorneys…well, one was an attorney I work with a lot and the other, I was just referred to but, you know, there are different seasons of work during that. So, I may do some work and then not work again for a few months and then do some work later. But ideally, you’re thinking about it from the very, very, very beginning. Other people will call me and say, you know, “Got a trial in three weeks.” Those are the calls I don’t like to get. I would never recommend that.

Scott: So, what are you doing pre-indictment, you know, as a jury consultant? What are the sorts of things or activities you’re doing with counsel at that early stage in a case?

Denise: Oh, well, it’s just, you know, again, depending on budget or things that are going on, attorneys just wanna brainstorm sometimes. Or if there are things that are issues that affect a broad segment of the…or peoplewill have opinions about, sometimes you do some research, you know, just to get attorneys…to make sure they’re not drinking their own Kool-Aid, sort of, you know, sort of a reality check for them. Like, they might realize already I could use a sounding board outside this echo chamber.

Scott: Sort of the curse of knowledge, I think that’s what it’s called. Like, when you know something very well, you lose sight of what it’s like not to know that thing…

Denise: Exactly. Exactly. Yeah. So, certainly, that’s not always the case, most of the time, it’s not the case. But the minute somebody thinks about might I use a jury consultant or a trial consultant for some of this, I would say, make the call because, you know, sometimes then I would say, okay, with what you wanna do, let’s stay in touch. I think you’re a little far out, you know, if you don’t wanna do exploratory focus groups, you’ve got budget for one pre-trial research exercise by trial focus group. If we can only do it once, we need to wait and do it when we know some more, but it doesn’t hurt to go ahead and start thinking about it.

Scott: Well, a lot of lawyers will tell me, well, the case is very likely gonna settle. The case is very likely gonna plea when it’s all said and done. So, what’s the point of using a jury consultant when I’m pretty sure, you know, most cases settle anyway? Even with the idea that the case is likely to settle or…

Denise: You wanna get the best settlement you can, right. So, I work with a couple of lawyers…I’m not advocating this because it certainly is up to the lawyer to decide what they wanna do. But in civil cases, you know, you wanna get an idea of what a jury might do. So, it definitely helps educate yourself for settlement purposes. I’ve had lawyers think, oh, I’ve got a, you know, $10 million case. And there’s not a juror that’s gonna give them more than $2 million. So, they’ve got to…you know, that’s not necessarily exactly predictive, but it kind of wakes you up and makes you think about it.

Scott: Because I guess all plea bargaining and all settlement negotiations, they’re done with the fictional trial in mind.

Denise: They have to be, right? What are my chances of…? And then in some cases, I’ve worked on civil cases, the lawyers will take some of the data we get from the focus group, maybe verdict forms. And I go to mediation sometimes and we’ll take those to the mediation that will be in their mediation presentation. We did a focus group and they’ll say,…I always want parameters, but within reason, I’ll be glad to talk about how I recruited the people so they get some idea that this was a credible thing, not a one-sided thing that we did. And that can be compelling sometimes when they’re willing to share, you know, what we learned with the other side. Now, again, I’m not advocating that because there could be litigation. The other side could say, “Well, I think that’s discoverable.” I don’t think it would be, but there are those times when people litigate over knowing that kind of thing. So, that’s clearly a decision for the attorney to make, not all attorneys would make that call, but it happens.

Scott: And that’s a good opportunity, too, if you’re just paying people pizza and a gift card.

Denise: Right, right. You’re probably not gonna take that to the mediation with you.

Scott: Well, but I guess my point being that you probably are gonna want non-disclosure agreements.

Denise: Oh, always. Yeah, absolutely. Always, no matter if you’re doing it for pizza or for a lot of money, you always have the people sign a confidentiality agreement that they will not disclose what you talked about in the focus group.

Scott: Okay. So, even if you think this is a potential settlement, the use of a jury consultant is very helpful to assess what your case is actually worth.

Denise: Yeah. And what hurdles you have and also to sometimes give your client a wake-up call. They could be totally unrealistic and the lawyer knows it, but they’re not gonna listen. You know, or sometimes the clients that say, in a civil case, “This isn’t about the money, this isn’t about the money.” At some point, sadly, it’s got to be about the money because that’s all…I’ve had clients, I said, “What do you want as a result from this case? We’re not getting anywhere.” And they name things that a jury could not enforce. I want an apology. I want this, I want this. Well, the only way you’re ever gonna get that is with a settlement because that’s not on a verdict form.

Scott: So, even if you’re in a situation where you’re entertaining an offer, or you think there’s an offer, you know, potentially at hand, and you have a client that is perhaps being unrealistic. a jury consultant can be helpful to have a…just for the client to hear from a focus group or a mock trial jury kind of exposing the problems with the case [inaudible 00:45:15].

Denise: Yeah. And I think it goes a long way. And I think a lot of attorneys I work with would say this towards preserving the attorney-client relationship because it’s not the attorney delivering the hard news. It’s either the consultant or if you do focus group or mock trial, they get to hear it out of the mouths of other people. And that’s…you know, I’ve had a lot of cases settle a plea soon after we did that because of the attorney or the client suddenly getting very realistic about something that they had, sort of, not been realistic about before. Another thing, just an example I thought of in doing a focus group, if you’ve got the luxury enough ahead of time, I’ve been in a civil case before realized like, wow, when there was time to add parties, they wanna blame somebody we haven’t sued or our focus is on the wrong party. They’re not going to zing this doctor, but they are the hospital that we kind of threw in as an afterthought. We really weren’t pursuing much of a theory against the hospital.

Scott: And if the hospital’s not even a party or they’re wanting to apportion blame to some person that’s not in the suit, you need to get that person in the suit.

Denise: So, we’ve added parties and settled with the people that we thought were the main defendant in our sites and a civil suit because we realized the jury is just not going to go there. We need to focus, you know, somewhere else. They want this plaintiff to recover, but they have a different point of view on who’s at fault here. Now, obviously, you’re not gonna add people that, you know, there’s no claim against, but many times there are choices, or at least choices as to who’s the dominant defendant, who’s the more at fault. And jurors are the ones who are ultimately going to decide that.

Scott: Yeah. So that’s definitely an example of something. If you’re three weeks from trial…

Denise: Forget it.

Scott …you’re not going to add another party at that point, but if you’re early in the litigation, you can potentially.

Denise: Exactly. Exactly.

Scott: This has been great. Okay. So, I’m gonna take one piece of advice you just gave me. What is something that you would like for a listener to this podcast to know either about you or jury consulting that I just haven’t asked you about yet?

Denise: Gosh, gee, see, then I’m gonna be the juror sitting there going, “Nope, you’ve asked me everything.” You know, I think more of what I would say to jurors is a different thing. That’s where my mind was going when he started asking the question. But if your listeners are more attorneys, you know, I guess I’d just reiterate something that I’ve already said, and that is just please allow yourselves to be curious about your case and your clients and never stop asking questions and never stop listening because you get manna from heaven when you do that.

Scott: Yeah, and I think we just aren’t taught that way. I mean, we’re taught in the first year of law school to, you know, break things down to their essentials and, you know, we’re sort of taught this way of thinking that, you know, I don’t think before I went to law school I’d heard the word fact pattern. And, you know, we think of cases…and I can’t think of anything that’s more, you know, anti-story than a fact pattern. So, we’re taught about fact patterns. And, you know, when we’re studying for the bar, we get these multiple-choice questions that there’s not really a story. You know, it’s like party A, party B, what is the result? If as undergrads, you know, we…I majored in English as an undergrad and theology. You know, that’s very…

Denise: Then you know some story…

Scott: I know some story. And then my first year of law school, they proceeded to beat that out of me. And, you know, I think we probably spend the rest of our legal career trying to recover that because we need it. And, you know, clients, sometimes we run out of patience. And I think what I hear you saying is that, but not only with jurors and juries, but it could be the clients trying to tell us something that we should probably be more curious about.

Denise: Yeah, absolutely. No doubt. I mean, we’re here for a reason every single time, and that’s important to know. And based on what you’re saying too, I guess what I’d say to attorneys is, you know, please be the person in court that you are out of court. Don’t just start using, with jurors, the legal language and framing things in that way. If you’re a soccer coach or a Sunday school teacher, or a great griller, you know, for your neighborhood, whatever you are, remember to take that with you and come from that place when you’re in court. Not just from the lawyer who knows the language you got to use to the judge.

Scott: Because chances are people connect with the person…

Denise: They’re gonna relate to that.

Scott: Well, Denise, how can people find you if they are interested in talking to you?

Denise: They can call you, Scott, and you’ll give them my number. I have a…you could find me with your Google machine, trialstrategist.com or denisedelarue.com, which is probably harder to spell, will get you to my website.

Scott: Well, thank you so much. It’s been great hanging out with you.

Denise: Scott, always fun to talk to you.

Scott: All right. Take care.

Denise: You too.

Scott: Thanks for listening to “The Advocates Key.” For more information and content like this, including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review, and subscribe to this show wherever you get your audio content.

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