Five Years Too Late

October 3, 2009

Thoughts on Jury Selection

Filed under: Uncategorized, venture capital — fiveyearstoolate @ 9:43 am
Eric Wiesen

Eric Wiesen

I spent the last two days at “jury duty”, meaning I was part of the pool of potential jurors used to select juries for civil cases in New York state court. While it did nothing to improve my estimation of our civil justice system, it did foment a few thoughts along the way.

First off, as an attorney you’d have to be basically insane to pick me as a juror. As most of the readers of this blog know, I used to be a lawyer, but that by itself isn’t sufficient these days to ensure that you aren’t selected to serve on a jury. In fact, many of my friends from law school and practice have served as jurors, and some even enjoyed it. No, what most of you probably don’t know is that for two years in college, prior to starting my first company, I worked at a trial consulting firm whose business was figuring out how to game juries.That (of course) isn’t how they market themselves – I think their language is “formulating, testing, refining, and implementing effective trial strategies and themes”. But the business is picking winning juries for their clients and figuring out how to present to those juries in a way likely to win them over.

It bears mentioning that I told the attorneys all of this as soon as they began to question me. Part of the reason I loathe going to jury service is the knowledge that no sane attorney would want a guy like me in the deliberations. Juries have a tendency to play “follow the leader” and you put a person with my background in there, it’s inevitable (even if it’s not necessarily sensible) that other jurors would look to the “expert” for guidance on how to interpret the law (never mind that juries are primarily fact finders, most jurors don’t understand the distinction). These attorneys, however, didn’t seem to understand this.

And that’s ultimately what I found a little bit interesting as I went through this process. Once you get past the waiting around phase of jury duty and are put in the pool for a particular case, most of your time consists of listening to the attorneys conduct void dire, the questioning of potential jurors. Some of this will be you answering questions, but mathematically the larges majority will be you listening. So I listened to these attorneys (who were exactly the type of lawyers you’d expect to see trying a personal injury case at the state trial court level) try to pick a jury by asking questions, I started to think about how picking a jury is somewhat analogous to assembling a venture portfolio (cut me some slack, I was bored and the defense attorney gave me very dirty looks every time I tried to sneak my Kindle up onto my note pad).

As early stage investors, no matter how much diligence we do, we only know a little bit about a company in which we invest. Hopefully we know we’re backing a great founder and team, solving a real problem in a big market and with an innovative product. But at the early stages of any of these businesses there are far more unknowns than knowns. That’s why we’re in the risk capital business. We do our best to understand the capabilities and attitude of entrepreneurs, to develop a thesis around the market in which they’ll play and the likely fit of their product(s) to that market. But it’s certainly art as well as science.

Picking a jury isn’t so different. As we try to assemble a portfolio that will, in aggregate, produce returns, trial attorneys try to pick 6 or 12 jurors (depending on the trial format) who will, in aggregate, produce a favorable judgment for their client. They get a few hours to question the randomly-selected potential jurors and then they have to make their choices and live with the results.

As I wrote about last month, asking great questions is a big part of being a great early-stage investor, particularly on the deal selection piece of early stage investing. Similarly, trial attorneys will live and die by the questions they ask. In fact, much of the work we did when I was a trial consultant was coaching and construction of questions to best help attorneys understand how to elicit likely trial bias one way or the other. And I assure you, simple common sense/stereotyping is NOT a reliable way to do this. The nice old lady in the corner can be the staunchest defense juror you ever saw and the guy in the suit can be the plaintiff’s best friend. You just don’t know unless you ask questions that tease their biases out of them, quickly, an without them knowing.

Which brings me to the questions asked by the attorneys in this case, who had clearly never had the benefit of working with my old firm or another like it. The plaintiff’s attorney asked every single juror, “Do you think people have a right to sue?” and “Are you comfortable awarding large money damages?” and “Are you biased against plaintiffs? Am I starting out at a disadvantage with you?”

These are the wrong questions. This (presumably inexperienced) attorney was asking for output, but jurors almost never know their own biases and can’t accurately provide that output. It would be like if we asked potential portfolio companies, “Are you going to have a lot of customers? Will they pay you a lot? Will your business be defensible via expanding network effects or other barriers to entry?” Those are the questions we ultimately need answered, but asking them directly is a waste of everybody’s time. In our world, every company is going to say yes to every questions, and in the jury world virtually every juror, when asked directly, “Can you be an objective and impartial juror in this case?” is going to find a way to say no, because very few people want to serve on juries.

Ultimately, the trial attorney and the venture capitalist are procedurally analogous. We ask questions do perform diligence not because we think the answers lie therein, but because we’re hoping to stack the deck in favor of our portfolio and our LPs. By investing in Ron Gonen, Sam Lessin or Ted Morgan, we think we get a built-in advantage over those who invest in competitors to these businesses. By choosing large and growing markets with fluctuating competitive dynamics we think we improve our chances of earning a return by investing in startups. Attorneys get a few questions per juror to try to figure out if, at the end of the trial, this juror is someone that’s likely to side with their client (because let’s be honest – no one is looking for objective, impartial jurors. Plaintiff’s counsel is looking for plaintiff jurors and defense counsel is looking for defense jurors). They hope to assemble a jury that returns a positive outcome for their client.

Watching these attorneys ask terrible questions certainly got me thinking about whether I’m asking the right questions when I meet new companies. And if that’s what I got from my two days at 71 Thomas St., I’ll count myself lucky.

9 Comments »

  1. Eric, this is a great analogy. I had my first experience with jury duty a few weeks ago, for a criminal case in which I ultimately wasn’t selected. The prosecutor and defendant’s attorney asked similarly blunt questions, which only seemed effective when a potential juror was eager to escape serving. People are rarely very good at assessing the precise shape and size of their own biases, and this may be especially true of the entrepreneurially-inclined.

    If nothing else, jury duty provides an excellent opportunity for these types of reflections away from one’s usual day-to-day obligations.

    Comment by Jeff Heuer — October 7, 2009 @ 10:42 am

  2. Eric, while you say some things of interest, I have to disagree with you about the general attitude of jurors. I have been picking juries for over 30 years and I feel that most jurors take what they are doing seriously and therefore strongly disagree with your statement that “in the jury world virtually every juror, when asked directly, “Can you be an objective and impartial juror in this case?” is going to find a way to say no, because very few people want to serve on juries. While there is no question that some jurors will say no, the majority don’t. And most of those who say no, appear to say no honestly. Most people would rather not be on jury duty, but once called respond honestly to the process, just as those who were drafted did.. The underestimation of jurors is often the reason for a verdict contrary to what is expected.
    Louis J. Schepp

    Comment by louandthelaw — November 9, 2009 @ 7:50 pm

    • Louis – appreciate the comments. It may be a semantic distinction, but in my experience first as a jury consultant and later as an attorney (admittedly one that didn’t pick juries), it wasn’t so much the underestimation of jurors as the failure to understand their perspective that caused surprising verdicts. Generally speaking, my experience with juries is that they are not capable of rendering thoughtful, informed verdicts, but it sounds like your experience is different. As a citizen, I hope your experience is more representative of the system at large than mine. – EDW

      Comment by fiveyearstoolate — November 11, 2009 @ 10:25 am

  3. Most of those 30 years were with an insurance carrier’s in-house law firm. I always tried to speak with my jury after verdicts (which in all but a few cases were favorable to me, and that means not always a win but less than we could have settled the case for,) and settlement. Many people feel this is a waste as they say that the jurors will just tell you what you want to hear. I feel if done right it can be most helpful. In those cases where I did not agree with the verdict, I at least understood how the jury, after speaking with them, came to their decision. And for the most part is was done responsibly.
    Bad verdicts I believe for the most part are the result of poor lawyering and unless you are in attendance for the trial, you really can’t criticize the result. Having spoken with someone involved in the Famous hot coffee case, I understand why the jury did not what they did. That case could have been settled for quite a bit less than the verdict (and in fact settled for much less than the verdict) But after hearing the facts, I can understand why the jury was angry with the defendant. Defense counsel did not understand the impact the evidence was having on the jury and so did not settled. This is often a common mistake. I only dealt once with a jury consultant (story for another day) but my general view is that they are not that helpful, especially when like yourself, they never picked a jury or tried a jury case in their life. Imagine have as a consultant in the operating room, a doctor who never operated. What real good is that. Night. LJS

    Comment by louandthelaw — November 13, 2009 @ 1:51 am

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