Monday, August 22, 2011

The Undeniable Advantage of Juror Questionnaires over Voir Dire

For more than 25 years, it has been apparent to many litigation consultants that a questionnaire is a more effective, efficient, and valid vehicle for eliciting TRUTHFUL responses to issues of concern to attorneys during jury selection. Now a recently published research report confirms what we have believed, and adds some additional detail to the comparative advantages of jury questionnaires over verbal voir dire in jury selection.

This latest research reported here [(Flores, D.M. (2011). Methods of expanded voir dire and written questionnaires: Experimental results on juror self-disclosure and implications for trial practice. Court Call, Summer, 2011, pp. 1-6.)] is notable for comparing answers on a jury questionnaire to 3 different kinds of voir dire: group voir dire (the most common practice in the US), individual questions to jurors seated with the panel in court, individual questioning of prospective jurors with only judge and attorneys present in court, and finally, individual interviews of prospective jurors in a separate room with judge and attorneys present.

Compared to information provided by prospective jurors on a jury questionnaire, jurors FAILED to provide candid answers to group voir dire 67% of the time, to individual questions from a judge 50% of the time, to individual questions from attorneys 33% of the time, and to private voir dire questions away from other panel members, 20% of the time. Most importantly, jurors were willing to (and did) provide the information withheld during voir dire on juror questionnaires.

The implications of these findings are profound for Texas family law attorneys (Texas is one of two states with jury trials in divorce and custody cases.). As Texas courts have become more crowded with the increase in population over the last 20 years, judges are increasingly limiting voir dire in jury selection to group and individual questions of the panel in court, with time limits of one hour per side becoming a common practice. Many judges are reluctant to allow the use of jury questionnaires, while some are adamantly opposed and refuse to allow their use.

This new research may lead to a new avenue of appeal in family law jury cases. When 2/3 of jurors are withholding relevant information from attorneys during group voir dire, the judge's failure to allow more valid and reliable ways of learning about the attitudes of prospective jurors (when juror questionnaires have been requested and denied by the court) raises the question of whether parties have been denied the due process to which they are entitled under the Constitution.

Jury consultants have been teaching attorneys about the barriers (physical, emotional, social, and psychological) to complete and honest self-disclosure by prospective jurors during voir dire in the courtroom for many years, and suggesting strategies to overcome those barriers and make it possible for panel members to be completely honest. We (litigation consultants) have long recognized that questionnaires were the best solution to this problem, and the new experimental research confirms what trial practice has demonstrated many times: Jury questionnaires have no equal in the search for the 'truth' about juror attitudes.

Wednesday, August 17, 2011

Mediation Strategies--Making the First Offer--Don't Try to "Sell" It!

There's an opportune time to do things, a right time for everything on the earth: ... A right time to shut up and another to speak up...
Eccleciastes 3 from "The Message" by Eugene Peterson

A new study published in the Journal of Personality and Social Psychology strongly suggests that making too strong a case in presenting an opening offer in a negotiation is counter-productive. The study looked at negotiations where the parties made an opening offer with no explanation or persuasive argument and compared those negotiations to situations where the opening offer was accompanied by a persuasive argument in support of the terms being offered.

The study found that parties who made an opening offer without "selling" it ended the negotiations with results that were CLOSER to their opening offer than parties who made an offer and then tried to "sell it" to the other side. The explanation appears to be that "selling" the opening offer provokes counter-arguments by the other party and leads to counter-offers that are farther away from the opening offer than when the offer is presented without a sales pitch.

This study has significant implications in family law litigation and settlement negotiations. Both clients and attorneys would be well-served to leave the advocacy for another day when making an opening settlement offer. However difficult it might be to make the offer without a 'pitch', it is clear that restraint is going to save the client some money and get them more of what they want.

Bottom line: There is an opportune time for advocating, and opening negotiations is NOT it. When making an offer--leave the arguments for the courtroom and help your client get more of what they want.

Here's the reference for the research:

J Pers Soc Psychol. 2011 Aug;101(2):245-55.
Negotiation as a form of persuasion: Arguments in first offers.
Maaravi Y, Ganzach Y, Pazy A.
Faculty of Management, Leon Recanati Graduate School of Business Administration, Tel Aviv University.

PMID: 21500924 [PubMed - in process]

Monday, August 08, 2011

Preparing to Mediate vs Preparing to Litigate- How Family Lawyers Can Use Client-Centered Strategies to Provide the Best Legal Representation

The cases are stereotyical: a successful middle aged man decides to divorce his wife of 20 plus years after a long period of acrimony and mutual animosity. Both spouses hire very competent lawyers and while the temporary support and financial issues are settled quickly, visitation for the children cannot be resolved, leading to temporary hearing. Following the hearing, discovery begins in earnest, and because of the custody/visitation issues and an exchange of inflammatory allegations, the parties' depositions are scheduled. Attorneys for both sides are surprised by what they find out during THEIR OWN client's depositions, and scramble to adjust to the "new facts" and prepare for mediation. The first mediation fails, as each side clings to unrealistic expectations and anger-driven rigidity and retaliation. In their candid and off the record discussions, attorneys for both parties agree that the case "needs to settle" but neither one can get the clients to do the right thing. Sound familiar?

The trend in family law litigation continues to move in the direction of fewer trials and more alternative dispute resolution, like mediation and, to some extent, collaborative divorce. This change away from litigation and trial preparation to mediation places family law attorneys under a new set of pressures early in the life of case: to discover both the strength and weaknesses of the client's case, to get the client to perform well in temporary hearings and depositions, and to uncover leverage points in the opposing party's positions prior to mediation in order to be in the strongest possible position at mediation. In other words, mandatory mediation policies have effectively "front-loaded" the case preparation tasks for family law attorneys, and created a greater sense of urgency for getting the "complete picture" sooner rather than later.

There are client-centered strategies available to manage these difficult and challenging cases. Here are a few of the strategies that have worked for my clients and their lawyers:

1. Take the time early in the case to get a complete history of the client, the client's spouse, the marriage, and each of the children. This interview should last 2-3 hours, and the goal is to get the client comfortable and talking, and let them "tell their story". Most clients expect that they will get a chance to "tell their side" in court (they won't, we all know) so this will be their one and only opportunity. Clients don't know what is legally relevant, but they will tell you all kinds of relevant facts, if given the chance. Most importantly, they will reveal the challenges and weaknesses in their own cases and minimize the surprises that can really hurt their cases later.

2. Emotional divorce and legal divorce proceed on entirely different timelines. When their is a conflict between the emotional divorce and the legal divorce--the emotional divorce ALWAYS trumps the legal divorce, and can stop the legal process in its tracks. When clients exhibit any of these characteristics, some kind of professional help is needed for the client ASAP: a hurt and angry wife still stunned by allegations of infidelity, a husband who describes his wife as an addict (food, drugs, shopping, alcohol), a wife who describes her husband as "abusive" and has been physically assaulted or emotionally beaten down, when either spouse is either a borderline personality disorder or narcissistic. Get professional consultation from a consulting expert about how to best support your client. Failure to address the emotional divorce factors is the greatest cause of mediation failures in my experience.

3. Take the time early in the case to explain in detail the litigation process, terms of art (motion, hearing, pleading, mediation, discovery etc.), and the sequence of events and a timeline. A typical divorce in North Texas takes 12-15 months, but most clients think tell me they think it will take about "6 months". This is just the first of the unrealistic expectations that clients have stuck in their heads, and managing and correcting these expectations is critical to maintaining the relationship with the client, and in making the process less stressful for client and attorney.

4. Before any hearing or deposition, take the time to teach your client how to be an effective witness, and the rehearse their testimony and cross examination with them. I have NEVER had a client tell me that rehearsing for their testimony in a temporary hearing or deposition was a waste of time--not one, not ever. Attorneys live in courtrooms and are comfortable there; clients are uniformly terrified, and consequently, without training and practice, are uniformly terrible witnesses. Clients not only willingly pay for time to prepare, they genuinely appreciate learning the rules and developing confidence to perform well.

5. Before mediation, explain the process to the client. Talk about the usual barriers to reaching an agreement, and have the client consider BEFOREHAND, and tell you in explicit detail, their bottom line position on all the custody and property issues. This will create an opportunity to manage the client's expectations, and prevent misunderstandings between attorney and client that can undermine successful mediation.

In summary, family law attorneys can provide the highest quality representation to their clients by recognizing that early, thorough, and considerate consultation which meets the CLIENT'S needs early in the divorce litigation process can make the entire experience less stressful for both attorney and client.

For more information or to arrange a consultation, call Dr. Karlson at 972.839.2394 or send email to