Through this six-part series, we’ve studied all aspects of putting on a trial, focusing on the role that in-house counsel and other company representatives play in the process. We’ve also addressed what client representatives can expect from the trial counsel they choose. This includes regular communication, an awareness of the client company’s key messages, and ample availability for witness preparation, strategy sessions, and other meetings.
All of this contributes to securing a verdict in the company’s favor. That is the ultimate goal, and everything done during the trial has that end in mind. Yet, no matter the verdict and whether it comes down for or against the client, the work does not stop when the jury files out of the courtroom. In fact, the final stage is just gearing up. There are two key components for this last step: jury interviews and the post-mortem meeting.
Win or lose, trial lawyers, in-house counsel, and company stakeholders have much to learn from jurors. Since contact with selected jurors before or during trial is forbidden, trial lawyers and their clients have to rely on non-verbal cues to sense how receptive jurors have been. Body language can only reveal so much. It is then crucial to approach jurors after the trial to secure verbal feedback, unless contact with jurors is prohibited by applicable rule or order.
There are several opportunities to speak with jurors in a professional and respectful manner. In certain states, such as Ohio and Pennsylvania, some judges will ask jurors to remain in the jury box to answer questions from the trial lawyers on both sides. This is convenient, though the trial lawyers doing the questioning have to be fairly circumspect in terms of the questions they ask to avoid revealing their concerns regarding weaknesses in the case to the other side. They may, after all, be heading into many more similar cases in courts around the country. Still, this is also a good opportunity to see what kinds of questions opposing counsel ask.
A preferable option is to approach jurors in the hallway or outside the courthouse after they are dismissed, and ask if they are willing to answer a few questions. Some won’t want to talk. In that case, do not, but fine to ask if they would welcome a phone call in a few days once they’ve had a chance to get their lives back on track. Many jurors, however, will happily discuss the case right there and then.
No matter how the jury feedback interviews are done, it is important to only ask a few questions so as not to overwhelm them. The main four are:
- What convinced you to vote for or against the company?
- Were you able to clearly understand the company’s position through what was presented during trial, both by the lawyers and witnesses?
- Did the lawyers do a good job?
- Is there anything the lawyers could have done differently during the trial?
You may get short or even clipped responses to these questions. Some jurors, however, are happy to talk at length. All responses are helpful as they provide the basis for a well-informed post-mortem of the case, and always remember your obligation to treat jurors professionally and respectfully.
Once the jury interviews are done, the dust has settled, and everyone has gotten some rest, it is time to convene a post-mortem meeting to discuss the case. This is an opportunity to review everything that happened during the trial and assess the impact on the result. Even if the verdict was positive, there are always lessons to learn.
Some points to consider:
- Some client representatives choose to limit attendees at the post-mortem meeting. Others invite all in-house stakeholders and other outside trial teams working on similar cases in other jurisdictions. Some client representatives will share notes from a smaller meeting with other trial teams and internal stakeholders.
- If all trial counsel are present, this affords an opportunity to share experiences and pass on knowledge regarding what worked and what didn’t in the case. Armed with this information, the other trial teams can make adjustments to their strategies.
- It is often helpful to review jury feedback with an eye towards spotting trends in how individuals reacted — and voted. This can be done by a jury consultant, but the firm’s outside trial attorneys can also handle this. Assessing this data will help in jury selection going forward, and with decisions regarding how to approach other juries in similar cases.
- Once the meeting is done, it is important to collect and record the information presented in a way that can be easily accessed and re-used. Some companies create databases or draft organized memos. The important thing is not to let an opportunity for greater knowledge slip by.
Though the main feelings at the end of a, hopefully successful, trial are likely relief and elation, it is not yet the time to let things lie. Only by conducting good jury interviews and properly assessing all aspects of the trial through a post-mortem meeting can companies, their in-house counsel, and outside trial counsel learn for future cases.
Disclaimer: This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney-client relationship. The opinions expressed and any legal positions asserted in the article are those of the author and do not necessarily reflect the opinions or positions of Miles & Stockbridge P.C., its other lawyers, or InsideCounsel.