By Melissa M. Gomez
Special to the Legal
The answer to the question, obviously, is "no." So why do I see so many attorneys strike the same profile of person in every jury selection? Maybe it's because there is a certain kind of person the attorney has had a bad experience with in the past. Maybe it's because folks believe that because they work on a certain type of litigation, the juror profile stays the same, regardless of the idiosyncrasies within different cases. I can't give a definitive reason why this happens, but what I can say is it's a mistake that can have an enormous impact on a trial's outcome.
Take a pharmaceutical patent case I worked on a few years back. The case involved a patent for the process of making a vaccine for a certain kind of animal. I'll call them the fuzzy bunnies. I was working for the defense, and the court had already determined that my client's process infringed. The trial was damages only, and there were millions of dollars at stake.
So, what was the juror profile for this case? Well, of course as a defendant already determined to have infringed, we wanted the conservative, corporate-minded person who would understand our perspective on an intellectual level, right? We wanted to avoid emotional jurors who would see us an example of a badly behaving company that got caught red-handed, right? Wrong.
There was another aspect to this story that turned the profile in this case completely upside down. Although the process by which my client made the vaccine was found to have infringed, the effects of the vaccine were quite different. In fact, my client's vaccine was shown to be much better for the health of the fuzzy bunnies. In fact, the plaintiff’'s vaccine had a few problems with making the fuzzy bunnies sick … or even killing them.
So what happened? According to our mock trial research, folks who were more favorable to the defense were actually those folks who are traditionally seen as plaintiff-oriented. They did not view this case from a business perspective; they viewed it from a fuzzy bunny perspective. They did not like the fact that the plaintiff was trying to stop my client frommaking the better vaccine. Infringement inshmingement.
When we got to court, it was clear that the plaintiff had the idea that the traditional profile applied. They probably had a good result in other cases with the traditional plaintiff profile, and they were sticking to it. Consequently, both sides were striking the same profile of people. We were left with a jury full of fuzzy bunny-loving folks. Verdict: The exact royalty recommended by the defense and the absolute minimum the jurors could award by law.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. If you have questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.
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