IMS Insights Episode 56: The Strategic Advantages of Working with Jury Consultants

IMS Senior Jury Consultant Aref Jabbour, PhD joins podcast host and IMS Client Success Advisor Adam Bloomberg to discuss jury consultants’ work with attorneys and witnesses, juror perception of the trial process, and the strategic value of jury pool research.  (Part 1 of 2)

IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 45,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at imslegal.com.

Transcript

Hello, and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg. Today, we’re speaking with IMS Senior Jury Consultant Dr. Aref Jabbour about the unique role consultants play in helping attorneys and witnesses communicate their case to the jury, the effects of high-profile trials on public perception, and using social media research to identify jurors’ existing beliefs and inform voir dire and jury selection strategy.

Dr. Jabbour applies clinical psychology and research expertise to numerous cases, including product liability, white-collar crime, toxic tort, catastrophic injury, and complex business litigation. He has published and presented numerous works on jury research, juror perceptions, voir dire strategy, and nuclear verdicts.

Adam Bloomberg:

Aref, thank you for making time today. I see by your CV that you went to Northwestern University for your undergrad, and Penn State for your master's and your PhD, congratulations. Why don’t you talk to us a little bit about how that helped you launch your career.

Aref Jabbour:

Sure. It's great to be here. Thank you for having me, and I'm excited about the opportunity to do a little bit of teaching, hopefully. I got into psychology early on as an undergrad at Northwestern and dove into it, taking as many classes, in fact, taking all the classes I think they had in psychology, and then switching to clinical at Penn State. I always had a fascination with why people do things and what makes people tick and how to help people, when initially being trained as a clinician. Listening skills, communication skills, understanding where people are coming from, what values drive them to think and behave in the ways that they do. And spending the years and gathering that knowledge, and also practicum, because at Penn State there was a clinic there that you get as much practical experience as you want, seeing patients from the community. So those communication skills got honed fairly early and fairly quickly, thankfully.

Adam Bloomberg:

So how did the direction of your career change towards the legal field?

Aref Jabbour:

After that training was done, I'd realized that I wanted to do something different, still taking a lot of the skills of writing reports and questionnaires, as well as some didactic teaching components. And also the skills of communicating, helping people, getting things across better. And also understanding what's behind somebody's thought processes or beliefs or systems of what makes them tick. And where could I do that? At first, I didn't know. So, the jury consulting field, I tell people I fell into it, just literally meeting somebody who worked at where I worked two employers ago, and got to learn from them what it was about. Got the job, and then I started into the career path of learning everything I can about all the different services that are provided, that jury consultants typically do.

Adam Bloomberg:

That’s a fascinating path you’ve taken. I can see that that’s what makes you a good jury consultant. You understand what resonates with a specific group of people based on who they are, their beliefs, their biases, their experiences, and then apply that to help craft the storytelling techniques the trial attorneys use to reach the jury. When it comes to your work, what would you say your role is, and what’s the value you bring to a case?

Aref Jabbour:

That's a great question. When I'm introducing somebody to a topic, especially a lawyer who's never used jury consultants, I use the analogy of, we're the translators between the language that the lawyers speak and the language that jurors understand and speak. And to try to bridge the gap between the two and find the ways, the words, the messages, the themes, the arguments that will resonate for a particular case, that the lawyer is comfortable using, that the jurors can understand. And that they're reaching the jurors in the way that they need to be reached. And then that's at the most top, high-level conceptualization, the way I think about it. And then as you drill down, there's a lot of teaching, helping lawyers how to ask specific questions when you're assisting with voir dire, how to frame stories. Attorneys live through cases for years; they know all the details. The jurors don't, so we need to figure out what are the details that matter. And that ends up being a critical component of our work, funneling it down to, these are the few things or the few many things that really matter to people. And there's also another component, which is the witness preparation where, whether it's the expert or fact witnesses, who have to understand that testifying, whether on a deposition or trial, is not like normal conversation. And what are some of the pitfalls that are specific to each person that may get in the way of them being an effective communicator. 3:48-4:04

Adam Bloomberg:

Now let’s talk a little bit about trials. We’ve seen some recent, really high-profile trials – Heard vs. Depp, the Elizabeth Holmes trial. What do you think the average person on the street’s perception is about trials, and these sorts of trials versus reality? 

Aref Jabbour:

Most people's perceptions still to this day about how trials go are based on what they watch, whether in movies or television, right? So, there's one, the expectation that trials go really fast. And there's the expectation that everything's clear in a trial. There's an expectation of a clear-cut case that's presented from one side or the other. But now with, whether it be just media in general or social media or even YouTube, because people can watch certain parts of the trials on YouTube channels, there are more and more people exposed to what's really happening in the courtroom. So, they realize jury selection is a tough process. Being a witness on the stand is not what you see, it's like on TV, there's sometimes a lot less drama than you think there is. Things are a lot more dry than they might be in the movies or on film.

Adam Bloomberg: 

I have definitely watched some shows that dramatize the courtroom, and when comparing to reality, you’re right. It’s way drier. What other differences do you think jurors are noticing when watching real trials?

Aref Jabbour:

It's typically when they see how verdicts are handed down. There's usually maybe one or two components in a verdict form in the TV show or on movies. But in these cases, there’s complicated questions. And some of the individuals, whether they be at the criminal trial, may have been found guilty of some components or charges and not others. And others like the Johnny Depp was, because he won his case, but then people have to understand what he was really suing for and cut through the drama, right. It's the sensational, yes, it's a divorce case, it's a libel case. I think it was. And then understand what are the critical, what are the legal questions that are at stake here and how interesting is that to really cut to the chase. And then people I think are realizing, are seeing that there's a lot of back and forth. Even if a verdict is handed down, there's still appeals or the potential for appeals and things to go back and forth and back and forth. So my perception is, I hope that people are learning more about how the legal system actually works for good or bad, and how complicated it is and what trials really look like. 

Adam Bloomberg:

Yeah, nowhere near as glamorous as folks think it is. How about your expertise when it comes to witness preparation. Whether you’re helping, let’s say, a company witness, somebody who has never testified, or helping an expert prepare for a deposition or trial, what’s involved and how do you approach that? 

Aref Jabbour:

Sure. I think that component is one of the areas that my background in clinical psychology really comes into play, more so than maybe some of the other things that we do. And that, I approach witness prep on a very individual basis. Where, let's say there's a fact witness, somebody who's not an expert, and individuals who don't really understand what's involved in a deposition, what the tone of the questions is going to be like. And also the first component is to work through what feelings they have about being a witness in the first place. I don't think I've ever met a witness who was excited to be deposed or to be a trial witness. But there are some people who are debilitated by being in that position, whether they be really nervous or angry or anxious or fearful. Some people might be fearful that they're going to lose their job. Some people are concerned that their testimony is going to win or lose the case. So, there's a lot of things at play. So, we try to work through those, work through people's expectations or beliefs. And that really varies from person to person.

Adam Bloomberg:

What other aspects do you consider when preparing witnesses?

Aref Jabbour:

There's a certain amount of education that comes in play from the lawyers, their lawyers, about what the case is, what their role's going to be, why they're being called to testify. And then there's a didactic component where sometimes we have a presentation about the do's and don'ts. Can be a witness testifying, how being a witness is not same as normal conversation. We show them a chart, here's what you do in normal conversation, you don't do that. And go through examples, at least on paper. The most learning happens in the practicum where the lawyers do a practice cross-examination of the witness and to see how they do under pressure. And through that, sometimes it takes more than one session. We develop the themes or the home bases or the safe spots that these individuals, these witnesses need to go through and to explain, and to the jury, ultimately the trier of fact, even if they're being deposed or they end up being in trial. 

Adam Bloomberg:

Does your approach to witness preparation change when you’re working with an expert?

Aref Jabbour:

For experts, there's a little bit more. Sometimes or oftentimes experts have testified plenty of times, whether they have been deposed or at trial. And the goal there is to make sure, for us to assess or for me to assess, how effective of a teacher that person is. They may be the greatest, and latest and greatest, and most educated in their field, but are they able to display and communicate concepts to laypeople that in ways, ultimately, that they can repeat to each other in the deliberation room. Or are they perceived as pedantic, in some cases, or not as clear and communicative? And how do they teach, how do they understand the concepts? Because jurors ultimately care a lot more with how approachable and understandable a particular expert witness is rather than their pedigree and how many letters they have after their names. So we come in listening for answers that may need more explanation, looking for opportunities where witnesses can capitalize on to provide those explanations. And then helping them formulate them in their own words so that they can find opportunities to educate the jury. While the attorneys are providing us the universe of the questions and the topics, we're trying to provide what the messages should be and how they should be communicated across. Again, to make sure that the jury understands and believes what they're saying rather than them dismissing a particular witness or not believing them or finding them to be unpleasant.

Adam Bloomberg:

Let’s move forward a little bit in the case timeline to jury selection. One of the services that you and your team provide lawyers and trial teams are social media searches. Can you describe what IMS does when it comes to social media searches of the jury pool?

Aref Jabbour:

Almost every person we know has some social media presence one way or another. Some are more active than others. And we understand that people, certain people might be a lot more vocal and expressive on different social media outlets than they would be in person. And so that then has become a universe for us to investigate and see what people are saying and doing on their devices or at home on their computers. So what we do is we have a team of professionals who, in every particular case, when we have the names of potential jurors, if we can get them ahead of time and we know the location, they delve deep and dig into each particular juror and create a file of anything they can find, whether it be on Facebook posts, Facebook pictures, pages they follow, Twitter posts, LinkedIn profiles, and any other sort of social media outlets that somebody's active on.

And that gives us a window of, hopefully, somebody's thoughts and beliefs and values that they have, to bolster what we can collect from them where there's a jury questionnaire from the voir dire process. Oftentimes those two are limited, maybe nonexistent. And then, so we get some data, some information about someone from their social media in terms of what they value, who they follow and why. And it may be rare that somebody might have something so probative, but when you do find that, it's really critical. So, we always have to assume that there might be something there about each particular person that's a potential juror.

Adam Bloomberg:

Right. I’m curious to know, are there any situations – different venues, certain judges – where it’s not allowed? Are there any rules against it?

Aref Jabbour:

As far as I know, there are no rules against it. However, in my experience, there have been some judges who have explicitly said, and they have been, in my experience, federal court, have said there cannot be any social media research on any of the jurors. And so obviously we have to adhere to those, to that rule and not do anything. In other instances, there might be some rulings that are pending and then the judges will say, "You may be able to do some social media research, but you can't put that information on anything for the moment. You can save it in ways or at least save links but not have anything yet put down anywhere." And then once a ruling or a final judgment is made, then it goes one way or the other. So, it varies, but most often it's allowed.

Adam Bloomberg:

What's something we can learn about a juror that can make or break a case?

Aref Jabbour:

So let's say if you're dealing with a toxic tort case of somebody who claims they were exposed to something and may have caused a disease that they have. And you're working in a jurisdiction where you may know that most people there have strong opinions or anti-corporate opinions, but you really, so you're dealing with a pool that may already be particularly biased against your client, your corporate client, but you want to really find the worst of the worst in that respect. And that brings up the other side point of jury selection being more about deselection, finding the bad apples, at least for our clients. Then so if we dig deep into a particular person's social media profile, and they are active on social media to begin with and they regularly post things, and then they are expressing strong opinions and sharing them with the world that may be anti-corporate, or maybe something that they said directly against this particular defendant or other similar ones, and they shared them out there, so they're making their voice heard about these particular biases and opinions that they have. In that scenario, let's say that person didn't speak up much in the courtroom during voir dire, or if they're answering questions on a questionnaire and they didn't put much about any opinions, and say I don't have any strong opinions, but when we looked behind the curtain, then they have a lot of strong opinions. So, then we know, and we can advise our clients that this person is dangerous for your case because we've discovered these, this, this, and that in their profile, and that helps inform our opinion of them.

Adam Bloomberg:

I've been in cases where, for whatever reason, a trial team has decided not to use PhDs who are deep into the social science, and they have their own staff – admins, paralegals, associates – do their searches. Can you talk to us about the differences between those two approaches? 

Aref Jabbour:

Sure. Well, I think at top of mind is the number of hours and the staffing that we are able to provide versus if they were to use somebody in their own offices to do that. If we’re retained to do that, then we have a set number, or a varying number of people I should say, who are able to devote their time and efforts to doing just that. And two, three, maybe four hours per witness or per juror, depending on how many there are and how complicated the case may be. And we can find, we can dig deeper in that sense and provide the background checks and the deep dive into somebody's social media profile to see and go through all of the posts, or as many as possible, all the postings on Twitter to see what bubbles up to the surface. And if somebody posts something along, who does not favor, let's say, tort reform, and they say everybody should get as much money as they can. Or maybe they even referenced a recent huge nuclear verdict that happened. And they say well, that's not even enough money to compensate such and such plaintiff, or these corporations have even more money that they need to pay. There's something there, right. And I think that the advantage is having the number of people who are dedicated to doing just that, and get into it as deep as possible. I think that's what differentiates, whether it be, whether somebody doing it in their law firm who have other plenty of other things that they can be doing, and they may not know what to look for. The other thing is, in terms of what to look for, we’re typically retained to do these social media searches, whether in conjunction or after we've done jury research, and then we have a profile and we are looking for certain things, and then we're looking for certain things to fit that profile. And if we find them, those opinions within the social media search, then that helps that way as well.

Adam Bloomberg:

You talked about toxic tort cases in state court, and sometimes those can go for weeks until you pick a jury, but what happens in cases, say in federal court, where you have a very limited amount of time, sometimes you have two hours. How do you approach those situations?  

Aref Jabbour:

That's a tough situation, but also, again, it's something that highlights how prepared the attorneys need to be to conduct a very surgical voir dire. And that's another way that we can be of help. Let's say we have a patent infringement or copyright infringement case in federal court, and we only have an hour to ask questions. So, the lawyers need to know exactly which questions need to be asked, but also pay attention to what the other side is, what other questions they're asking on the other side. So, if we have done research, then we can distill questions from our jury research that are critical to ask to get at people's potential biases, again in this surgical strike scenario. And also, we have profiles that we could develop again to get at them in as quickly as possible. And so, I think in those situations where time is limited, we even add more value because we have to help the lawyers so they don't have to think about, which questions do I need to ask? Here are the 5, 10, 15 questions that you need to ask if you only have an hour to make sure that we get the folks that we need to get off the case.

Thank you to Dr. Aref Jabbour for speaking with us today, and a special thanks to our listeners. Please join us next time and subscribe to the IMS Insights Podcast.

IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years and in more than 40,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.