November 28, 2023

Podcast - Key Lessons and Takeaways for Jury Trials

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small is joined by Jason Bloom, a jury consultant and the founder and president of Bloom Strategic Consulting Inc., for an interesting conversation on key lessons and takeaways for jury trials. Mr. Bloom shares how he came to be a jury consultant, do's and don'ts for trial lawyers when working with juries, the current state of juries as a whole and more.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Dan Small: Jason Bloom, welcome to "The Trial Lawyer's Handbook" podcast. It's great to have you here today. Just to get us started, give us a sense of what you do as a jury consultant, and how did you get into that line of work?

Becoming a Jury Consultant

Jason Bloom: OK. Well, yeah, thanks for having me, first and foremost. I really enjoy talking about this stuff and teaching about this stuff, hoping that everyone who watches this podcast can just take away something that they can use in their next jury trial. But for starters, I'm not a lawyer. My background is in forensic psychology. So I discovered when I was about 19 or 20 years old that I really liked psychology, but I did not want to be a therapist. I don't really care about your earliest childhood memory, and I really, really like the law, but I didn't want to be a lawyer. I didn't really want to do a whole lot of reading and a whole lot of writing for work. And so what sort of fascinated me is the intersection of those two disciplines, which was jury decision making and how juries decide cases, make decisions. You know, you might open up the newspaper or open up your social media site or open up something on the Internet and see a jury verdict, $300 million verdict, not guilty verdict, defense verdict, whatever it might be, and you might scratch your head and say, I wonder how that happened. Maybe asking it of one of your own cases. Quite frankly, in the past, I've spent the last, now almost 30 years, studying that. And it's still very, very fascinating to me. So I got an undergraduate degree in psychology, and then I got a graduate degree in forensic psychology, which was really hard to find back in the early '90s. And as a jury consultant, I really just do three things, you know, I do mock trials, focus groups, mock jury studies, you may call them, where what we're trying to do is test out the case, test it out in front of a representative sample of people who would be jurors in a particular venue and just learn what's important, what's not important, what works, what doesn't work, how to change the narrative to get a better outcome or result, both on liability and/or damages, as well as guilt or innocent in the criminal realm. I also do jury selection, which is what the jury consultant is probably most known for, and that is at the time of trial, helping my client decide who's going to be a risky juror, who's going to be a good juror, how do we find these people in the jury selection process? What questions do we need to ask? What responses do we need to analyze in order to determine who's going to be risky and who's not, if they sit on a particular jury? And then the third and final thing I do is witness communications training, which I know you do a lot of as well, Dan, but I've developed two classes. One's called Depo Ready, and one's called Jury Ready. In each of them is a three-hour tutorial on the art of communicating testimony in either situation, either inside a deposition or inside a jury trial. And I've been able to extend the Jury Ready program to prepare witnesses to testify in bench trials, arbitrations, ITC hearings, I've prepped people to testify in front of Congress. And I really believe that testifying is partly an attitude, a mindset, really understanding what's going on and what the witness' role is, and I love to sort of relay some of the things I've learned about testifying to those who have never testified before and basically get rid of a lot of the stress because a deposition or a courtroom can be a pressure cooker. And not everyone knows how to handle being inside of a pressure cooker.

Dan Small: That's great. Let me start with the mock trials, because you actually did a mock trial for us this summer on a difficult case, and I was amazed with how much I learned. Tell me, what are three things that trial lawyers often miss in presenting their cases to a jury?

What Do Trial Lawyers Miss When Presenting Cases to a Jury?

Jason Bloom: Yeah, so we all, just as humans and trial lawyers especially, all think that everyone around us sees the world the same way that we do. It's called naive realism, and it's not true. I mean, many lawyers, people in the legal community, you live inside of a bubble. In other words, you have different daily problems and issues than the average juror who might be a nurse, a teacher, someone who runs a very small business, someone who might be retired, a homemaker, someone who might be a mid-level manager. And, you know, everything that we decide in life, or most of what decisions we make in life, are born from life experiences and predispositions. Think about it. A lot of what happens to us in our lives, fortunately or unfortunately, happens at work. And so a lot of jurors look at these disputes, especially the civil disputes, from the perspective of the experience that they've had work, and there's just no real shared experiences between what lawyers do and what that teacher does, what that nurse does, what that X-ray technician does. So I think that's the biggest thing, and that's really where the focus groups come in and have a lot of utility, is because you realize that not everyone sees the world the same way that you do or your client does, or your fact witness or your expert witness might see it. And I think the best lawyers out there, by far and away, are those who are answering the questions that the voter, the decision maker, the jury member is actually asking. And if you can predict what those questions are and then you can answer them in a palatable and digestible way to an average juror, then I think you've really found the art of advocacy, quite frankly.

I mean, many lawyers, people in the legal community, you live inside of a bubble. In other words, you have different daily problems and issues than the average juror who might be a nurse, a teacher, someone who runs a very small business, someone who might be retired, a homemaker, someone who might be a mid-level manager. And, you know, everything that we decide in life, or most of what decisions we make in life, are born from life experiences and predispositions. 

Dan Small: On the flip side, what are some of the things that you've seen lawyers do that impressed you that they said, yeah, this is right, this is the way to do this?

What Do Trial Lawyers Get Right?

Jason Bloom: Getting to the point is a really big deal. And we've just got to appreciate that there's the difference between sort of explaining something to someone and answering someone's question. But I believe that humans, and jurors too, are sort of like, there's this black box theory where the lawyer or the witness, the expert witness, the fact witness might think, if I show this to the jury or I say this to the jury or I tell this to the jury or I show that to the jury, and I put it all inside this black box and I shake it up, I'm going to get the verdict that's right and just, I verdict that is in favor of me. And I think that humans and jurors as well are like candles. You have to light them. You have to inspire them. And I think it's all about human motivation. So, for example, I can explain to you how the treadmill works. And the treadmill works in a very complex way as well. But I can try to explain that to you over minutes, hours or even days, but that doesn't motivate you to want to get on the treadmill. That doesn't motivate you to want to buy this manufacturer's treadmill as opposed to this manufacturer's treadmill. I've got to motivate you to see the world the same way that the client does. And that, again, is the art of advocacy. The other things that I've been seeing out there are visual aids. I mean, it sort of sounds like a platitude to say jurors are visual learners or people are visual learners, but they like to see stuff. They really like to see stuff. And then the best lawyers out there also are still incorporating civility into the trial process. Some places around the country, these trials go off the rails rather easily, I guess you could say, and I think the jury appreciates the civility.

And I think that humans and jurors as well are like candles. You have to light them. You have to inspire them. And I think it's all about human motivation.

Dan Small: I was a teacher before I was a lawyer, and I'm very big on the notion that people learn not just with their ears and only lawyers or law school professors think that, you know, lecturing people is the best way to teach them. So I'm with you all the way on the visuals.

Jason Bloom: Yeah, I mean, think about this. It's easier to use the eyes than the ears, and attention spans are lower than ever now. And what we're asking these jurors to do — and I'm a very big believer in the jury process, I think juries get it right — but I know they get it right based on the perception of the facts, not the facts. Both the lawyer, and the witness too, is basically a perception manager at the end of the day, but we're asking these people to make big decisions, at least for the clients involved, by watching a series of conversations between lawyers and witnesses about events that they were not at and subject matter that they have no experience in. And if you can learn how they make those decisions inside that sandbox, then you can learn how to communicate to them. You can learn how to persuade to them, you can learn what makes them click and really what doesn't matter at all inside that sandbox.

Dan Small: What about the complex cases? Whether it's complex because of numbers, or complex because of intellectual property or technology, how do you present a complex case to a jury of normal people?

Presenting a Complex Case to a Jury

Jason Bloom: Yeah, you wrestle with this a lot, especially in the intellectual property space, but a lot of contractual disagreements involve complex subject matter as well. I believe that every case can be made simple if we break it down, and it just takes breaking it down. And there's a lot of intellectual capital among members of the legal field, and getting them all together in a room and talking about the case really accelerates the process of breaking it down to its bare bones, to something that's understandable by a juror. Maybe not by everyone on the planet, but certainly by someone who's going to sit in jury service. You know, for example, a car is a very complex piece of machinery, and at some point in time, we all bought a car. A house can be complex, too. At some point in time, we all bought a house. And you learn a lot about that house. You learned a lot about that car. You learned a lot about that job that you last took. But I bet the reason why you bought that last car, bought that last home, took that last job, probably boiled down to two or three reasons. Jury decision making is the exact same thing, and you really got to learn what are those reasons you may have bought the car. Because of the price. You may have bought it because of the number of people that it will hold. You may have bought it because of the miles per gallon or the charge, the battery in it, how many miles that would go if you were buying an electric vehicle. But there's a whole lot of data and a whole lot of information that's very complex about that car, but it just kind of boiled down to two or three decision points. And every single case has that, and finding it and being able to focus on it, that is the key towards a path to victory.

And there's a lot of intellectual capital among members of the legal field, and getting them all together in a room and talking about the case really accelerates the process of breaking it down to its bare bones, to something that's understandable by a juror. 

Dan Small: Absolutely. Think about it in terms of what are the core themes of the case, not what are the details of it. Let me switch over to your role as a jury consultant. You're in and out of courtrooms all the time, looking at juries, picking juries. What are you seeing these days? What's happening out there?

The Current State of Juries

Jason Bloom: Several things. One is more of a desire to serve. I think a lot of people generally across the country are frustrated about something in society. This could be a spillover from the pandemic, it could have started a little bit before then and was accelerated by that. But you know, what can you do if you're frustrated by your community or your society? The answer is not a whole lot. You can vote, or you can serve on a jury. So I used to sort of measure this or tally this when I'd go to jury selections. It was always interesting to me the number of people that would raise their hand and try to get dismissed or excused due to a hardship, and then also what that hardship was, whether it's a business travel, vacation travel — which, by the way, I've never seen a judge ask for proof of vacation or business travel tickets, and a lot of times they are refundable. That's a side note. Or other hardships that used to be 25 to 30 percent of the jury venire would raise their hand and try to get dismissed due to some sort of hardship. Now, it's a lot lower. It's more like 10 to 15 percent. And I think that people just want to serve on juries because they want to participate in their society, because they want to write some wrongs. The other thing I've seen is class warfare. It's sort of latent in all of this, but if you think about it  — and this is really in sort of negligence type cases more than anything else — most plaintiffs are part of the 99 percent. Most corporations, corporate defendants would be considered or perceived to be part of the 1 percent. And most jury members perceive themselves to be part of the 99 percent. And the 99 percent doesn't want to help out the 1 percent, and the 1 percent doesn't want to help out the 99 percent as well. So it's something that we saw about 15 years ago, 12 or 15 years ago, with the Occupy Wall Street sort of movement where it was class warfare. And it was very interesting because certain demographics inside of the jury population were really identifying with the 99 percent, and some were more identifying with the 1 percent. The other thing I've seen is just jury nullification, this tendency to rewrite social norms. The defendant can always argue we followed the law, we followed our policies, we did what the guidelines said, and the jury members are thinking to themselves, that's fantastic. You need to change your policies. You need to change the guidelines. You need to go above and beyond the standards. And because you did not, because I do not like those policies, because I, the jury, do not like those standards, I'm going to vote against you. And again, let me also say there's a lot of oppositional voting going on out there. That is, these juries are not voting for the plaintiff as much as they are voting against the defendant. And I think if you look and study voting in elections, you'll see a lot of that as well. That is oppositional voting. And then the final thing I'm seeing a lot more of is distrust. No one trusts anyone at all. When I'm doing focus groups, you know, I always throw out a question that I get more and more serious about. It adds a little bit of levity to the process, but it's actually a very serious question, and I trust that I'm getting candid responses when I ask these mock jurors, these focus group participants, how many of you think that maybe, maybe we didn't land on the moon, and depending on where you are on the country, it can be as high as 33 percent of my mock jurors that are raising their hand, rethinking whether or not we actually landed on the moon. And that's just a distrust in sort of the government, a distrust in society and knowing that kind of what we're receiving, you know, or thinking, what we're receiving from the media may not actually be true.

Dan Small: Looking at the next to last two categories that you talked about, this is absolutely fascinating. But the oppositional voting and the class voting. How do trial lawyers defending a case like that, what can they do about it?

Jason Bloom: Yeah, the oppositional voting is a real issue. And I think you've got to deputize the jury and say something if you're on the defense, like, you may not like these rules, but we should get a little bit of credibility for actually following them. And, you know, you may not like them and this is not really your opportunity to tell us whether or not you like our rules, but rather judge our conduct against what we are supposed to or required to do. I mean, that's the best thing that I've seen happen out there. And in terms of class warfare, I think we've got to show compassion. If it's a negligence case, I think the defendant has to show some compassion for the injured person, the deceased person and their family members, etc., etc., rather than going in there cold and indifferent. Because we got stereotypes, we got generalizations, we've got this big issue, this big word now, and that is accountability. That creeps into a lot of deliberations in mock jury studies. Famous plaintiff lawyers used to say, you know, in order to get large verdicts, you've got to make the jury mad and you've got to make them sad. Well, I think there's a third ingredient now, and that is you've got to make the jury want to hold one side accountable for failing to do something. And there are ways that the defendant can hold the plaintiff accountable, and there are ways that the plaintiff can convince the jury to hold the defendant accountable, but when you're studying these large verdicts and you're asking about rationales, why did you award this much? You're more and more hearing this word accountability or hold them accountable, which is really, really interesting. Again, I think this is a product of what we're seeing out there in society, knowing that most of what we know is coming from our phone. Most of what we know that's coming from our phone is being fed to us through the filter called an algorithm, you know, so we're just receiving the information that we subscribe to. And I think that also leads to a polarization of society, but that's for another time. But that is something that's operational injury decision making as well.

Dan Small: Something that we're both passionate about and that is witness preparation. As you know, I wrote the ABA's manual on witness preparation, and I do a lot of writing and speaking, but I get called in to help prepare key witnesses in cases. And one of the things I found very much along the lines of you're saying is that there are cases where I also believe in juries, and I believe that they have exceptionally good "jerk radars" is what I call it. They can smell a jerk and they don't like it. And there are extraordinary number of cases, I find, where the final verdict is likely to depend in part on who the jury thinks is a jerk. Do you find that in your witness preparation work?

Jason Bloom: I do. And I really like that word, the jerk thing. I think that jurors sniff out witnesses like dogs sniff out new people. And once that dog's determined you're not dog friendly, there's not a whole lot you can do. And so being a jerk, it's absolutely not the right way to go. You've got to kill with kindness. I've always thought that — you know, I tell this to witnesses, too — if those jurors, those decision makers, those voters over there, if they would say at the end of your testimony, I would work for him, I would work for her, I would do business with him, I would do business with her, you're good as gold. And I've also learned that the jurors will remember how the witness was and how the witness made them, the jury, feel for the rest of their lives. They will remember exactly what the witness said for maybe 24 hours. And that's just the power of the how you come across as opposed to the what you say. But many people spend a lot of time on the what you say and far too little time on the how you say it. We write these screenplays, these outlines with questions and answers for, for direct, and then on cross there's a little bit of practice, but on cross is when people become unglued, you know, and they return to their natural state. I think people are kind of like rubber bands. You can stretch them out a little bit, but it's very easy to trigger it and let go, you know, and go back to your natural state. And again, that goes back to this jerk mentality, this jerk reaction that is definitely unintentional, but it leaves a lasting impression on the voter.

 I think that jurors sniff out witnesses like dogs sniff out new people. And once that dog's determined you're not dog friendly, there's not a whole lot you can do. 

Dan Small: So, look, as trial lawyers, I've said, we all learn from other people's stories and experiences. Do you have a favorite trial story from one of the cases you worked on?

Favorite Trial Story

Jason Bloom: I've been doing this 27 years. I think my favorite case was, it was a white collar criminal case. I worked for Roger Clemens, who was a baseball player who was on trial in Washington, D.C., criminal trial for perjury and obstruction of Congress, which I think is an oxymoron, by the way. And the reason why this one stands out is because I'm really, really fortunate that I was able, literally, I was able to apply my skill set to my boyhood idol. And I think the story that I take away from here is one related to jury selection and the use of focus groups for predicting good jurors, bad jurors that you can use in jury selection. And when we were picking this jury up in Washington, D.C., we literally had about 60 or 70 pieces of data on each individual prospective juror through the use of questioning and a questionnaire. I mean, that's a lot of data. But through our focus groups, we really learned that whether or not this juror would be risky or not for Roger Clemens came down to like three things. So we had a lot of data that we just didn't need to use, and we didn't need to go down all these rabbit holes and worry about this data point and worry about that data point. It really just came down to three things, and it worked. We used those three things, those three criteria, when selecting our jury in that particular case, and it actually worked. So I thought that was really, really cool in terms of using the predictive power of focus groups to engineer a minimally risky jury.

Dan Small: We hear a lot about nuclear verdicts and we read a lot about them. What's your take on those? Are they here to stay? Is that a growing trend or a receding trend?

Nuclear Verdicts

Jason Bloom: I love this. Are they here to stay? It's like whenever I meet an economist who's a witness or an expert witness, you always ask them about the market, and of course they don't know, is the stock market go up, is whatever's going on in the market temporary or not. I think it's temporary. It resembles what we saw during the Occupy Wall Street movement, which eventually went away. But I think I read some research that in these nuclear verdicts, which I think are verdicts of $10 million or more, are considered nuclear, that 85 percent of the dollar amount is soft damages— mental anguish, emotional distress, pain and suffering type stuff — as opposed to the hard damages — the loss of earnings and medical — which I think that's really, really fascinating. And some of these verdicts, they have to be oppositional voting in nature because these numbers, it's generational wealth for many, many, many generations to come. And I think what it's signifying is we don't like what the defendant did or what the defendant failed to do. And the only way to get that message across is with a big number. And there's very good plaintiff lawyers out there that are suggesting that to jurors in closing arguments. One I remember recently was telling these jurors that they had more power than the President of the United States to make this company change its conduct, which yes, that's true, but that's pretty powerful. And then I guess the last thing is something I said earlier, and that has to do with the accountability. I mean, who's going to hold people in society accountable for not doing something right or failing to do something that they should do? I mean, who's going to hold them accountable? We could look, you know, to law enforcement, but you're not going to find it, you know, or many people won't find it. So I think that's what's attributing to it, is the desire to hold people accountable. The oppositional voting in nature.

Dan Small: Before we close out, Holland & Knight calls this podcast "The Trial Lawyer's Handbook." Any parting wisdom for trial lawyers that we haven't covered?

Parting Wisdom

Jason Bloom: I mean, I think jurors get it right, but I also think jury behavior, it's predictable. I mean, every single person is different, every single panel of 8 jurors or 12 jurors is slightly different, but there's a lot of consistencies in the way that they problem solve these disputes. And I would encourage people, I hate to sound like a salesman, but I would encourage people to do some sort of mock jury study, some sort of focus group, to eliminate the guesswork associated with what's going to work and what's not going to work. Because, again, jury decision making is predictable. Big believer in the jury system and also very big believer in verdict by proxy, that is finding what makes them click and running with that towards your path to victory.

Dan Small: Jason Bloom, trial consultant, jury consultant extraordinaire. Thank you so much for joining us on Holland & Knight's "Trial Lawyer's Handbook" podcast. Thanks very much.

Jason Bloom: Thank you, Dan.

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