Best of 2008: Fool’s gold
The Internet changes everything right? Not this: A fool and his money — especially the kind paid to consultants — are still soon parted:
Pre-Internet, lawyers would do their best to flesh out the backgrounds of people who might sit in the jury box. “We used to drive by the juror’s house and take a picture just to get a snapshot of, who is this human being?” recalled Robert Hirschhorn, a Dallas-based attorney and jury consultant.
Yet picking the panel whose judgment could send a client to prison or direct the disposition of millions of dollars often came down to intuition. Today, for a growing number of attorneys who want to take the guesswork out of the process, a Web search is a required first stop.
In one recent patent case he consulted on, Hirschhorn says an Internet search revealed that a potential juror owned a business helping beauty pageant contestants find costumes. According to her Web site, she wouldn’t sell certain clothing lines because the designs were patent-protected — “a gold nugget,” he said. “It told us she understood the value of proprietary information.”
It told you that, did it, Robert? Some patent! What did you charge for that brilliant advice? Did this gold nugget tell you perhaps her confusion between patents and copyrights or something else that may or may not govern what clothing lines she could sell could hurt your client rather than help it? Did it tell you whether and how much she perhaps resented not being able to sell those “patent-protected” clothing lines “because of some legal technicality”?
Did it tell you anything useful at all? It gets better:
More often, scouring a juror’s postings is an exercise in online psychoanalysis. Social networking sites and blogs can be particularly useful.
“Facebook tells you how people perceive themselves,” Hirschhorn said. “Blogs allow you to peer inside their minds. It’s like tapping a phone call: You’re finding out unfiltered what a person is thinking or feeling.”
Wow. Sounds like the usual amateur psychoanalysis, actually — wild speculation — but with one difference. Unlike other armchair psychologists, this guy actually charges more than a therapist.
Look: Facebook, blogs, all these things tell you how people want you to perceive them, not “how people perceive themselves” or even if they exist at all. Every pixel we upload is the result of a conscious choice we make about what we want the world to think about us. Not everything that is thought deserves to be written, and then some. Who knows what verdicts lurk in the hearts of men? Just ask my friend “Article III Groupie.”
We can no longer say we’ve “never lost” a jury verdict — the one by an (advisory!) jury against our client in Arizona last summer was, however pared-down, ultimately not our way — but post-trial discussions with the jurors confirmed that we’ve never gone wrong picking one: They agreed that if they had been allowed to render a verdict against our client on damages,* they would have awarded a dollar or, if they’d been allowed, nothing.
Consult this: Our trial experience, built upon the sage counsel of a former mentor at least one far more experienced than we on the same point, has taught us that the main things that count in picking a jury are (a) be sure you know in advance whether they are going to be told that pool members are being dismissed peremptorily by one party or the other; and (b) decide before you try your case whether you intend to insult jurors’ intelligence or not. If you are, then if you’re like us you’ll get your client to settle instead, or practice criminal law. If you’re not, then get straightforward, honest-seeming people who can follow a logical argument past A and B and maybe beyond C. Period.
Well, for extra credit, here’s (c): If you are, per (b), trying to avoid having intelligent or informed people sit on the panel, don’t be so “intelligent” that you fail to realize, when sifting your pool for dummies during (a), that the “dumb” jurors are onto you.
Beyond that, claiming to read tea leaves like the ones being peddled in this article (via O’Keefe again!) is not only an exercise in futility, as anyone just reading those statements (assuming they’ve been reported correctly) and who has any familiarity with either human nature of social networking can see. It’s an insult to our own intelligence, and to the intelligence of the general counsels and clients who’ve been suckered into not only paying for this nonsense but purchasing an accountability insurance policy for their trial counsel.
And there‘s yer gold nuggest.
*Lucky for us, as regular readers know, the judge ruled that there would be no damages in the case at all (this and other great rulings have been appealed by the plaintiff).