Dialsmith

Renowned jury consultant Howard Varinsky, of Varinsky Associates, took time from his busy schedule for a few questions from me this week. Trained in psychology and having practiced jury consulting for 25 years, Mr. Varinsky is an expert in developing winning trial strategies, voir dire and jury selection, witness preparation and courtroom communication. He is a lecturer, author and has appeared as a commentator on programs such as Nightline and Larry King Live. Mr. Varinsky has consulted for some of the most high-profile trials in recent years including for the prosecution in USA v. Martha Stewart and Peter Bacanovic and USA v. Timothy McVeigh and for the defense in State of Michigan v. Dr. Jack Kevorkian and State of New York v. Bernhard Goetz, among many others. I was interested to learn more about what makes Mr. Varinsky so successful and how his techniques may help others.

DP: Getting a mock jury together of people matching the profile of those you expect will serve on the actual jury is one thing, but how do you account for the individual personalities of the actual jurors and how those personalities will impact deliberation?

HV: In getting a mock jury together it is extremely important to match the demographics of a typical jury in a given venue. It is nearly impossible to account for and anticipate individual personality characteristics and differences of actual trial jurors, since the variety can be nearly infinite. It is much more important to match the socioeconomic status, politics and belief systems of trial jurors than their personalities. Actual trial juror personalities become more important when selecting jurors. They are not as important in pre-trial research.

DP: Much of what you do is based on persuasion – advising your clients on how to most effectively persuade a particular group of 12 people. Many who will read this interview are in sales, marketing and PR and they practice persuasion every day – getting clients to buy their products/services, choose them over the competition or see their company in a certain light. What, in your experience, are the keys to effective persuasion that would cross-over from jury consulting to sales, marketing, PR and business in general?

HV: For persuasion to be effective in any given area whether it is sales, marketing, or trial work it is imperative to be as knowledgeable as possible about your target population. In sales, marketing or PR the target population may be the general public or a particular demographic segment of the general public, where as in trial work the target population is twelve trial jurors and two or three alternates. By knowledgeable I mean that the [person] selling the product [or message] needs to understand the needs, values, and motivations of their target audience as well as how they feel about given “hot button” issues such as politics, economic issues, and current events. It is a lot easier to persuade once you have some intimacy, understanding of and connection to the recipients of a message than otherwise.

DP: What was the most surprising outcome of a trial for which you consulted and in hindsight, if the outcome was not in your side’s favor, what would you have done differently?

HV: It is always impossible to accurately predict how any given person will vote in a particular case. We can only try to ascertain probabilities based on observational data and cues. However those of us who excel at our craft should be correct much more often than not. If it was baseball the batting average should be around .900. Having said this, I remember one case where close to a billion dollars was at stake and I miscalculated on one juror who looked like he would be favorable to our side, but who in fact hung the jury against us. Our client prevailed at the retrial. However, I still go over that jury selection in my mind trying to figure out what cues that particular juror was exhibiting that I may have missed.

DP: During your 25 years in jury consulting, what tools, techniques and technologies have evolved that have had an impact on how you conduct your research and consult with your clients?

HV: Twenty-five years ago when I first started in jury consulting the field was mostly known for only jury selection. Our knowledge at the time was extremely primitive and our field has advanced tremendously. Our knowledge base on jury behavior is light-years beyond what we knew in the early 1980’s and nowadays we utilize sophisticated techniques such as focus groups, mock juries, and community attitude surveys and so forth.

DP: Thinking about the many high-profile trials in recent years, does one move by the prosecution or defense stick-out in your mind as a red flag moment – one in which you knew that event was going to be a liability for them?

HV: My most important red flag moment in a high-profile case was at the end of jury selection in the OJ case. At the time, I was a media commentator and guest on a variety of national talk shows and was not involved in the case. However, it was obvious to me that the case was won in jury selection. The prosecution blew it before opening statements ever began.

DP: Would you please elaborate on that? What was it about jury selection in that case that you believe doomed the prosecution from the start?

HV: In OJ, Marsha Clark thought black women would be great jurors for the prosecution. In actuality, they were great for the defense. As a homicide prosecutor, her experience was as an advocate for family members whose sons had been killed by gang violence. Her job was to bring the killers to justice, thus earning praise from black community and church members, and especially from the victims’ mothers. She approached the OJ jury selection from this perspective. She didn’t factor into her thinking the fact that OJ was a hero in the black community, or that in high profile cases, all standard ways of thinking usually do not apply because of the unusual dynamics of intense media attention. The defense conducted pretrial research and was fully aware of these factors.

DP: In your years of conducting research, what traits of human behavior prove consistent time and again and conversely, what continues to surprise you to this day?

HV: In my many years of jury consulting what impresses me most is the degree of consciousness jurors bring to deliberations. Nearly everyone rises to the occasion when meting out justice in civil or criminal trials. Contrary to popular belief, jury verdicts are correct in 999 out of 1,000 cases. If you find yourself disagreeing with a jury verdict you see or read in the media, it is a good bet you did not see the amount of detail with respect to the evidence or personally observe the witnesses in that trial. If you did, you probably would have voted the way the other jurors voted. Juries might be the last vestige of true democracy in our society.