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The Psychology of Jury Selection with Kelsie Russell of Simon Law Group · Justice Team Podcast

• 0:00
  Bob:
• 0:01
  Welcome to this episode of the Justice Team Podcast on the Justice Team Network. And today we have a very special guest. We have Kelsie Russell, who was a teacher, then went to law school, then became a court clerk, then ran jury consultant and focus groups. And she's going to talk to us today about the psychology of jury selection. Going to talk about seeing it firsthand as a court clerk, as a trial lawyer, and how emotional intelligence and how literature factors in to jury selection. Welcome Kelsie.
• 0:02
  Kelsie:
• 0:03
  That's right. Welcome. And I'll just make one clarification for the record. I didn't clerk after law school. It was during law school.
• 0:04
  Bob:
• 0:05
  Oh, during law school.
• 0:06
  Kelsie:
• 0:07
  I externed with a federal judge during law school, so.
• 0:08
  Bob:
• 0:09
  How was that?
• 0:10
  Kelsie:
• 0:11
  It was great. I loved it. I had been at the U.S. attorneys the semester before that and I got to be a part of the first civil trial post-COVID with the U.S. attorney's Southern District. Loved it. Was in the courtroom. I said, I want to be in court every single day. So I thought if I clerked for a judge or extern for a judge, I'd be able to go to court every day. So I did that.
• 0:12
  Bob:
• 0:13
  And then COVID hit, and then you eventually did. So was it a jury trial or bench trial?
• 0:14
  Kelsie:
• 0:15
  It was a jury trial.
• 0:16
  Bob:
• 0:17
  Wow.
• 0:18
  Kelsie:
• 0:19
  It was an employment case. It was very fascinating. Very interesting. Yeah, it was a great experience. I loved it.
• 0:20
  Bob:
• 0:21
  And was it everybody in masks, I assume at that time?
• 0:22
  Kelsie:
• 0:23
  No, because it was post-COVID. So this was the fall of 21.
• 0:24
  Bob:
• 0:25
  Wow.
• 0:26
  Kelsie:
• 0:27
  Yeah, fall of 21.
• 0:28
  Bob:
• 0:29
  I tried two right after COVID. One, late 2020. No, it was 2021 and we were still in masks.
• 0:30
  Kelsie:
• 0:31
  Oh, really? Nope. Not in Southern District. They didn't make them. No.
• 0:32
  Bob:
• 0:33
  We were in Central District. Well, one was Federal Court Central and the other one was, it was in Van Nuys. But yeah, it was different rules. Different rules. But do you think that, well, you didn't get to experience it firsthand, but it was a struggle not to be able to see juries facial expressions. Ugh.
• 0:34
  Kelsie:
• 0:35
  Right.
• 0:36
  Bob:
• 0:37
  Ugh.
• 0:38
  Kelsie:
• 0:39
  Yes. Yes. So during COVID, that's when I started the jury consulting and doing focus groups. And it was online, it was virtually, and so that you could still see people's faces, see their reactions, and online doing it on Zoom, you could zoom in on their faces and get a real close up look of how juries responded to your case. So that was really fascinating. And I still do those and I really enjoy doing those too.
• 0:40
  Bob:
• 0:41
  Yeah. So let's walk us through, now you went to undergrad Oklahoma.
• 0:42
  Kelsie:
• 0:43
  Seattle Pacific.
• 0:44
  Bob:
• 0:45
  Seattle Pacific.
• 0:46
  Kelsie:
• 0:47
  Yes. So a small liberal arts school in Seattle,-
• 0:48
  Bob:
• 0:49
  In Seattle.
• 0:50
  Kelsie:
• 0:51
  Which that's where my family's from. So I had spent a lot of my summers up there.
• 0:52
  Bob:
• 0:53
  I could have swore I saw something Oklahoma related.
• 0:54
  Kelsie:
• 0:55
  So I got a master's in education in Oklahoma. So that's where my teaching career began, was starting in Oklahoma.
• 0:56
  Bob:
• 0:57
  And what type of teaching did you do?
• 0:58
  Kelsie:
• 0:59
  So I started off when I was getting my master's, I actually worked for the University of Oklahoma athletic department, and I taught a study skills class to all the freshmen student athletes. And then I also tutored students in small groups and individually, particularly in their reading and writing. I tutored a lot of football players specifically.
• 1:00
  Bob:
• 1:01
  So do you think, like if you had to get some advice for trial lawyers out there, what can they be doing when they're not like quote, unquote in season? If they're not in the trial, how can they help excel their people skills or their reading juror skills? What are some things they could be doing?
• 1:02
  Kelsie:
• 1:03
  Yeah, I would say just learning other people's perspectives of life, getting out of our bubble as lawyers, our way of thinking as lawyers, exposing yourself to lots of different stories, right, different life stories, life backgrounds, different cultures, different parts of the country. I know there's lawyers who maybe they mostly practice in one city, one town, one state, but I think it's just great to get different people's perspectives. That really opens your mind. And then I do think, I also believe in reading literature, reading fiction to think creatively.
• 1:04
  Bob:
• 1:05
  See, instead of fiction, I like to play like role-playing games like Dungeons & Dragons. That's how I like to think critically and be in different situations and figure out how you're going to get out of it and stuff like that. But I mean, one thing you talked about is perspective, and I think it's important for people that are watching or listening, don't think you're going to roll up into that courtroom and just automatically have some sort of rapport or know what these jurors are thinking.
• 1:06
  Kelsie:
• 1:07
  Right. Yes.
• 1:08
  Bob:
• 1:09
  Not going to happen.
• 1:10
  Kelsie:
• 1:11
  Yes, 100%. And I would probably say, especially the longer you've been an attorney and the longer you've been with that legal mindset, I noticed it even in myself. The longer I'm practicing law, I just see things from a more legal perspective. And I think it's really important to remember that human perspective, that this is the first time some of these people might ever be in court or be a part of the justice system. And so just remembering that they're seeing it with brand new eyes from whatever their personal experience has been.
• 1:12
  Bob:
• 1:13
  Yeah. And for most people out there, practice tip, you're usually not seeing your jury pool or who's on the jury till that day when you walk into the courtroom. There's some places, I've been in Arizona where you'll get a few days ahead of time, the juror list, be able to do some research and be able to see how they're thinking and feeling things. But for most of our listeners out there, you're walking in that day and seeing the jury for the first time. So if you are in a jurisdiction you're not familiar with, go spend some time there. Go to a bar, that's what I would do. Go to the grocery store, talk to the clerk, just go around to different shops and stores and be in the community and talk to folks. Talk about what their struggles are. How do you think it'd be good tips for people to get that perspective from individuals with your background? Because you do a lot of focus groups and you get people to talk.
• 1:14
  Kelsie:
• 1:15
  Yes.
• 1:16
  Bob:
• 1:17
  So walk us through some practical tips we can do to get people to talk, to learn their perspective. What are some things that you do?
• 1:18
  Kelsie:
• 1:19
  Getting to know their background. Tell me about are you from here? How long have you lived here? What brought you here? What do you like about living here? What's it like to be here? Walk me through a day in the life. You mentioned all these places people could go, bars. Well, what about the local library?
• 1:20
  Bob:
• 1:21
  Nice.
• 1:22
  Kelsie:
• 1:23
  You could meet some really interesting people there. You would meet parents there who are there to get their kids help. You would meet maybe people who need more services there. Yeah, I think those are great questions. Just get people talking about their background, their perspective, their beliefs, how they see things the way that they see things and why.
• 1:24
  Bob:
• 1:25
  Yeah. I mean, you also pick up some terminology, how they mentioned roadways, directionals also. It's that rapport with the jury to kind of understand the community where you're trying the case.
• 1:26
  Kelsie:
• 1:27
  That's very true because I'm from San Diego, and so when we're talking about freeways, we say the five, the 15, the 56. When I lived in Austin, Texas, everyone said I-35.
• 1:28
  Bob:
• 1:29
  That's funny.
• 1:30
  Kelsie:
• 1:31
  Rather than the number. I think in LA you guys just say the number.
• 1:32
  Bob:
• 1:33
  Say the number. The 101. Yeah. But I grew up in Pittsburgh was just the parkway, which to me was weird. Is like you have a driveway that you park in, but you have a parkway that you drive in, drive on. It never made sense to me. Yeah. But yeah, you learn these little things. So when you do, let's fast-forward a little bit here, when you're doing focus groups, I know a lot are online, kind of walk through people, because you could do it very inexpensively. There's some focus groups you could do at mock courtrooms and all the gravitas, but how are some ways that people could do it for very low budget?
• 1:34
  Kelsie:
• 1:35
  Yeah. So when I've worked at other firms, we would just put a Craigslist ad out. I don't know if there's an equivalent different to Craigslist now, but that's an easy cheap way. You'll pay people pizza and dinner for them to come and give you some time. You have them sign a release when they come to your physical space, or you could do it on Zoom, send them a link ahead of time, have them sign a release ahead of time. You can have someone from your office run it. Right. You can have an administrative person be the greeter, be the bailiff, so to speak, have the attorneys present, have somebody who's not the attorney facilitate the discussion, the focus group discussion afterwards. That would be a super low budget way. You wouldn't have to hire anyone from out of your firm.
• 1:36
  Bob:
• 1:37
  Wow. Yeah. You should do a lot of these things, in my opinion because I think focus groups are great to get the pulse on certain issues or how they feel about maybe even visuals or evidence.
• 1:38
  Kelsie:
• 1:39
  Yes.
• 1:40
  Bob:
• 1:41
  And it's sometimes it's a harder gauge for like my opinion for the value of the case. I think it's better for issue spotting. And that's just my personal take on it. But others may disagree.
• 1:42
  Kelsie:
• 1:43
  Yes. Yeah. I mean, you can always practice using a number. I mean, a lot of times in focus groups when there are no numbers given, then you see what people will come up with, which is interesting to see the calculations people form to try and,-
• 1:44
  Bob:
• 1:45
  Yeah. And how get there, how they get there.
• 1:46
  Kelsie:
• 1:47
  Justify the number.
• 1:48
  Bob:
• 1:49
  Yeah.
• 1:50
  Kelsie:
• 1:51
  Sometimes I did a focus group that it was a class action, but it had to do with a certain profession. And they said, okay, this is a class action, so it must be across the whole country. So we're just going to say in every state there's these many of this type of a job and we're just going to times it by that number and okay, that's how much we're going to decide on. Even though we have presented no evidence of how many there were in the class, how many there were in each state in the class, but they just came up with that on their own, so.
• 1:52
  Bob:
• 1:53
  And do you ever identify, when you get through the jury selection process, rather than just focus groups, picking actual jurors, identifying those jurors that are the stronger personalities that can swing the jury for you?
• 1:54
  Kelsie:
• 1:55
  Yes.
• 1:56
  Bob:
• 1:57
  How critical? Because I think it's one of the most critical parts of jury selection. I think it's jury deselection, but you have to try to find those three. I try to get three strong personalities. So you can win the whole jury.
• 1:58
  Kelsie:
• 1:59
  Yes, yes.
• 2:00
  Bob:
• 2:01
  How do you go about doing that for yours?
• 2:02
  Kelsie:
• 2:03
  So well, we usually have screening processes of people who will not be allowed to come to the focus group, which is more about what's your knowledge with the individuals involved. So usually when there's a strong personality, I mean, I just kind of work with that personality. I get their background on, "Hey, you seem really good with people, or hey, you really seem to be commanding." This is usually after the fact. "What do you do for work?" I remember one of the last focus groups I did, this woman, she was currently working for the police department, I think it was for a school district. So she was working with the kids in the police, like a school district police department. But she said, "Oh, I used to work for CPS. I used to be a part of these meetings where we would have to talk about kids and their rights and doing what's best for them. And it would be really important to hear everyone's perspective and go around the table and make sure everyone hears." So I think that's maybe a good indicator of what's their background. Do they have a commanding job?
• 2:04
  Bob:
• 2:05
  [inaudible 00:10:52] we asked a lot of questions like that jury selection. "Hey, are you a manager of people?"
• 2:06
  Kelsie:
• 2:07
  Yes.
• 2:08
  Bob:
• 2:09
  "Are you able to settle disputes in your job? What does that look like?" Because those are usually the folks that and you could tell. The ones that are more talkative,-
• 2:10
  Kelsie:
• 2:11
  Yes.
• 2:12
  Bob:
• 2:13
  Tend to be the folks that you want.
• 2:14
  Kelsie:
• 2:15
  Yes. Or people who've owned businesses.
• 2:16
  Bob:
• 2:17
  Yep.
• 2:18
  Kelsie:
• 2:19
  So they've had to own a business, make financial decisions. Those people a lot of times have a lot to say about the numbers, right, and where that money's really going. Bring up those conversations. So that's another theme that I've seen play out.
• 2:20
  Bob:
• 2:21
  Yeah. And I think we'll talk about is emotional intelligence, which I think is fascinating. For me personally, the more emotional intelligent people that I can find on my jury, that's who I want. That's generally my litmus test. And in life, I think that's the number one missing quality in America right now, lack of emotional intelligence. But how are you able to identify those that have a high emotional intelligence? Do you score them? What are you looking for when you're picking a jury or being a jury consultant or in focus groups?
• 2:22
  Kelsie:
• 2:23
  I think for emotional intelligence, it's about that perspective taking. Are they able to take on someone else's perspective and really listen and put themselves in that person's shoes versus I think the juror maybe you don't want, like especially coming from PI, is the person who will tell their personal story of, well, my dad went to the hospital and he didn't get the best care and he didn't get a million dollars, so this person shouldn't get it. It's like they personalize their own perspective and they project it.
• 2:24
  Bob:
• 2:25
  And that's all that matters. That's all that matters.
• 2:26
  Kelsie:
• 2:27
  Yeah. They project it onto someone else. So I think an emotionally intelligent person is someone who can say, "Wow, your perspective is different from mine, and it's still valid."
• 2:28
  Bob:
• 2:29
  I like that.
• 2:30
  Kelsie:
• 2:31
  "And just because I went through something different that was horrendous and it didn't result the way I wanted it to doesn't mean it shouldn't result the way you want it to."
• 2:32
  Bob:
• 2:33
  Yeah, and I look for words if people are saying the I and my a lot rather than us and we. If people are saying us and we all the time, yeah, sign me up, man.
• 2:34
  Kelsie:
• 2:35
  Yeah.
• 2:36
  Bob:
• 2:37
  That's usually a good person that I want on my jury. Whenever you're, how do you take it's, swinging away from emotional intelligence for a second. I also like empathetic people, obviously.
• 2:38
  Kelsie:
• 2:39
  Yes.
• 2:40
  Bob:
• 2:41
  Not sympathetic, empathetic. We teach the difference during jury selection. We've talked about that in other episodes, but walk us through how you use literature and have you used literature as a teacher,-
• 2:42
  Kelsie:
• 2:43
  Yes.
• 2:44
  Bob:
• 2:45
  To be able to look through that perspective lens?
• 2:46
  Kelsie:
• 2:47
  Yes. So the goal of why I wanted to be a teacher and why I went into education is because, and I've make this joke, I taught middle school first and I loved it. And people would say, "How can you teach middle school Kelsie? The kids are so crazy." And I would say, "I don't think life changes that much after middle school." Middle school is where you start getting really self-conscious, there's lots of cliques. And I thought, okay, if I could go and teach in middle school and through literature, help these kids see they're not that different from the other kids in their class, then that could help minimize the cliques, the bullying, this separatist mindset.
• 2:48
  Bob:
• 2:49
  I think that's the number one thing, is to be able to have kids set a social perspective for them too, just from teaching.
• 2:50
  Kelsie:
• 2:51
  Exactly.
• 2:52
  Bob:
• 2:53
  I think that's a big thing that people actually miss. So a few weeks ago I was at the, we did some work with the Navy SEALs in San Diego.
• 2:54
  Kelsie:
• 2:55
  Oh, cool.
• 2:56
  Bob:
• 2:57
  And the way that they score to see if somebody can actually become a Navy SEAL, they have IQ tests, but it's usually an emotional intelligence score. Yeah. Because usually they say, "We can get you physically there, we can get you all these things." But it's usually that they can't get it. It's like the barrier. People say there's a certain number. If you can't get past this number in their emotional intelligence score, they can't make it. It's crazy.
• 2:58
  Kelsie:
• 2:59
  Yes. And it has to do with empathy because empathy is very hard to intellectually teach someone. So that's where the power of literature comes in and reading fiction, because you read someone else's story, a character and what they're going through, and it helps you see that their life, you're seeing it through their eyes a lot of times, or you're seeing all the factors that come into play for that person. And what I loved about teaching for middle school, kids were so, and even high school, they're so self-conscious, they're so afraid to confess or admit certain things. But if you have a character and you're analyzing that character in a story and you're asking your students, why do you think he did what he did?
• 3:00
  Or why do you think this happened? Or what do you think his insecurities are? Then kids can talk about it. They'll talk about themselves, but they're not talking about themselves, they're talking about the character. So it's a way for them to process human behavior and why people do things the way they do. Trying to understand motives. I think another thing about emotional intelligence is that you understand people have multiple motives for why they do things the way they do. I think a lot of times we assume, oh, that person's just greedy. They just care about money. Okay. Well, maybe they do care about money. Maybe they're trying to make the most money they can, but they might also have a sick parent who they're trying to out care of.
• 3:01
  Bob:
• 3:02
  Find out out the why.
• 3:03
  Kelsie:
• 3:04
  There might be other reasons.
• 3:05
  Bob:
• 3:06
  And that's like I always tell people, you never know. You encounter somebody and it's like they just might be having a really bad day.
• 3:07
  Kelsie:
• 3:08
  Right.
• 3:09
  Bob:
• 3:10
  You just don't know the why and just...
• 3:11
  Kelsie:
• 3:12
  Right. And sometimes there's more than one why. Sometimes people can, they might have an altruistic view, they might really believe in what they're doing, but at the same time, they want to get paid well for it. That's an example.
• 3:13
  Bob:
• 3:14
  They just might be an asshole. I mean, to be honest. That person just might be a total asshole.
• 3:15
  Kelsie:
• 3:16
  That's true too. Sometimes you need to be able to figure out,-
• 3:17
  Bob:
• 3:18
  Who's the asshole.
• 3:19
  Kelsie:
• 3:20
  Right. That's an important skill too.
• 3:21
  Bob:
• 3:22
  Yeah. And it can be readily identifiable when you're picking a jury and stuff like that. So in your career now, being a trial lawyer, how do you think your life experience has helped you to identify folks?
• 3:23
  Kelsie:
• 3:24
  To identify folks? I think I,-
• 3:25
  Bob:
• 3:26
  Like in juries.
• 3:27
  Kelsie:
• 3:28
  Right. I think I've just been exposed to a lot of different kinds of people from different walks of life. And when I did teach, I taught in three different states. I taught people from cultures that were very different from the one that I grew up in. And it really taught me how just different people are, what's important to them, how to listen. And so I think that's probably the biggest thing, is that I've been exposed to so much. It's hard to understand things you've never been exposed to. Right. We have natural biases that we might not even know we have about different types of people. And I think the more you're exposed to people who are different from you, you see that different cultures, different types of people are complex. Right.
• 3:29
  So I might have come from Southern California from a suburban white neighborhood, and so I might not have been exposed to certain types of cultures or people. So I might have a bias. I might think, okay, all people of this particular culture are like this because I've only ever interacted with maybe a handful of people from that type of a culture, or that race, or ethnicity, or background. But the more you interact with people from a different ethnicity, or a different race, or a different class even, a different area of the country, you see, oh, not everyone is the same. Even from this one group. Right. I can't say all people from Oklahoma are like this.
• 3:30
  Bob:
• 3:31
  Yeah, you can't.
• 3:32
  Kelsie:
• 3:33
  All people from Texas are like this. But you realize in those moments how much you did think someone from a particular group that you don't maybe identify with, you did have a bias. You thought, oh, I thought they all thought this.
• 3:34
  Bob:
• 3:35
  Yeah. And I do think you can find a commonality with almost anybody if you try to get there and one of the things with jury selection is you find the commonalities between, well, you as a lawyer, maybe the juror to have some rapport, but more importantly with your client. I would say find that hook. And if you can get those commonalities out from people, most people at their core, I mean they want to make themselves feel vindicated or right.
• 3:36
  Kelsie:
• 3:37
  Yes.
• 3:38
  Bob:
• 3:39
  So if a jury feels like that they are helping somebody like them, or they have a similar story and they can vindicate this person through them, you're winning.
• 3:40
  Kelsie:
• 3:41
  Right. Exactly.
• 3:42
  Bob:
• 3:43
  But it takes that literature part of it. If you can make your client the protagonist, the defense the antagonist or the villain or some kind of villain on the other side.
• 3:44
  Kelsie:
• 3:45
  Yes.
• 3:46
  Bob:
• 3:47
  But I like that. Maybe I'll start asking juries if they read a lot of fiction and if in the fiction if they put themselves in the shoes of the protagonist.
• 3:48
  Kelsie:
• 3:49
  Yeah, that could be a question. Yeah, that's a great way. That could be a possibility. But yeah. Yeah. I think understanding people's motives, I think that's a big thing because when you're analyzing literature and you're analyzing a character, you're analyzing why, why are they doing what they're doing? And I think a lot of people sit and wonder that. They wonder that about the plaintiff. Why did the plaintiff bring this case? And so I think trying to portray that why that's not just greed or revenge, I don't know. You have to figure out your jury, your jurisdiction, your themes of your case. But I think what does unite us, it is those internal desires, right, those internal experiences and trying to connect with those.
• 3:50
  Bob:
• 3:51
  I love it. Well, Kelsie, thanks for coming on this episode of the Justice Team Podcast. If anybody needs to find you, what's the best method?
• 3:52
  Kelsie:
• 3:53
  They can probably reach out to me through our website or,-
• 3:54
  Bob:
• 3:55
  Sure. Email, website, if they want to reach you. If a listener has a question about jury selection or focus groups, how are they going to,-
• 3:56
  Kelsie:
• 3:57
  Oh, probably right now, LinkedIn would be the best.
• 3:58
  Bob:
• 3:59
  Nice. Yeah.
• 4:00
  Kelsie:
• 4:01
  Find me on LinkedIn. I'm very active on there and it's easy for me to respond. And I message a lot of people. I get a lot of people reaching out to me. I'll jump on a Zoom with people. I've had people reach out to me about jury consulting, and I'll just jump on a Zoom with them and talk about it.
• 4:02
  Bob:
• 4:03
  Yeah. Yeah, practice point for everybody listening, it's good to bounce ideas off of other people. Don't see through their lens of just you as a lawyer. Take a common folk perspective to it and talk to as many people as you can about your facts and embrace your bad facts and tell the juries your bad facts, especially in focus groups. Hide your good stuff. You want to see all the people about the bad stuff.
• 4:04
  Kelsie:
• 4:05
  That's right. Yep. Agreed.
• 4:06
  Bob:
• 4:07
  Well, thank you for good stuff here, Kelsie. Thanks for coming on this episode of the Justice Team Podcast. Go to Justiceteamnetwork.com or on our YouTube channel or on the Apple Podcast, whatever you guys want to find. Listen to us there. Thanks for listening or watching this episode of the Justice Team Podcast.