A juror may be a litigator’s greatest friend or foe when trying a case. But how do you determine whether a juror will be your greatest supporter or opponent in a jury trial? Legaltech is leveraging data analytics to provide these answers. From gathering data, analyzing risks, and suggesting strategy, artificial intelligence is being used to read the jury, providing litigators with a leg up on the competition.
Knowledge of person’s biases, fears, and beliefs can be used to empanel a jury sympathetic to your client, draft a persuasive legal argument, and ultimately win your case. But how do you attain this knowledge? Voir dire and questionnaires may get you close to learning
Legaltech is automating juror research and analytics with AI and machine learning.
Voltaire, whose software is powered by IBM’s Watson, automates research and analytics of potential jurors during voir dire. For example, once a jury list in uploaded into Voltaire, the system automatically matches the jurors with public records, social media, online authorship, campaign contributions, and proprietary data sources, such as online petition signatures. This data can then be supplemented in real time by filling in the answers jurors give to voir dire questions and by the attorney’s personal judgments. This data is then run through an analytics system that contextualizes the information and provides insight into potential biases and risks of each juror in relation to the specific case being litigated. In theory, this will help attorneys to make more informed decisions regarding the juror’s they choose to empanel or challenge.
Similar to Voltaire is Vijilent. Vijilent also uses machine learning and AI technology to crawl through public and paid for databases online to create individual personality profiles. While Voltaire focuses its service on jurors, Vijilent advertises itself as a data aggregator for anyone involved in the trial, including jurors, witnesses, and parties to a case. It is not clear whether this information can be updated in real time like Voltaire, but it can still offer insight into individual biases, and when needed, will properly preserve social media profiles in accordance with the Federal Rules of Evidence.
Legaltech creates more opportunities for virtual focus groups to gather more accurate juror data from the trial jurisdiction.
Other jury analytic services are more traditional than Voltaire and Vijilent, but still leverage technology for more efficient jury research and analysis. For example, Jury Analyst conducts virtual focus groups that sample a diverse cross section of the community or jurisdiction in which the case will be litigated. The virtual focus groups, often containing hundreds of individuals, help litigators discover key pieces of information the jurors want to know about and how the jurors feel about the information obtained so far. The virtual setting is supposed to save litigators time and money, while also producing more accurate results for informed decision making. The data obtained from these virtual focus groups are then used to develop jury selection and voir dire strategies using a proprietary analytics system developed from years of data points.
Legaltech is providing insight into juror emotions.
Jury Lab, like Jury Analyst, also uses mock jurors to develop litigation strategy. The focus here, however, is on measuring jury responses to opening and closing arguments. Using Jury Lab Emotional Response technology, legal teams can test arguments, key points, opening and closing arguments, photographic and video evidence, witnesses, and more, to pre-determine how a real jury might perceive their trial strategy. According to Jury Lab, its Emotional Response technology uses a series of optical arrays to track and capture dozens of separate locations on the faces of jurors during mock trials. The software measure and marks every subtle facial expression at the moment it happens. Once this information is gathered, digital algorithms convert the captured expressions into measurable, quantified inputs. These inputs then generate customized reports for legal teams to improve their arguments and strengthen their legal strategies. Jury Lab claims that it can increase the accuracy of gauging people’s emotions by 95%.
But, there may be legal and ethical concerns with some technology.
These strides in legaltech are obviously invaluable for attorneys in jury trials. Not only do they have the potential to reduce the time and resources spent on juror analysis, this data can provide more accurate data than individual observation. However, the aggregation and use of an individual’s data potentially raises privacy concerns of the jurors and also the legality of data collection methods. With recent events regarding Facebook, Cambridge Analytica, LinkedIn, and HiQ Labs, Inc., attorneys should be cognizant of the ethical and legal issues regarding the technology they are using and the data they are collecting for trial purposes.
Are you using any jury analytic focused technology in your practice? If not, are you interested in it, or would you rather rely on traditional methods of juror analysis? We want to hear from you.
About Trial by Tech
Trial by Tech is a blog brought to you by Baylor Law’s Executive LL.M. in Litigation Management—the first program in the nation designed exclusively for lawyers who aspire to direct effective litigation strategy, control electronic discovery, leverage technology, manage a team, and lead their company’s or firm’s efforts to manage a high-volume, high-stakes docket.
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Attorneypreneur, writer, technologist. Nerdy for legaltech, politics, crypto, cybersecurity, innovation. Presently in-house at Williams & Brown. Former adviser at Baylor Law, and founder of two technology and legal consulting companies. @JoshuaWeaverEsq