PERKINS COIE PODCAST: Talking Jury Selection With JurorSearch CEO Dan Johnson

PERKINS COIE PODCAST: Talking Jury Selection With JurorSearch CEO Dan Johnson

A Conversation with Dan Johnson, Co-Founder of JurorSearch

Intro:                           Welcome to White Collar Briefly, a Perkins Coie mini-pod. Delivered in short doses, this mini-podcast features informal, on topic discussions with in-house experts, outside counsel, and other thought leaders on a wide array of cutting edge and practical white collar and compliance topics. Visit PerkinsCoie.com for more information on our nationally ranked white collar and investigations practice. The views expressed on this podcast do not necessarily reflect the views of Perkins Coie LLP, and should not be considered legal advice.

Markus Funk:              Today we’re joined by Dan Johnson, the CEO and co-founder of JurorSearch, a Chicago based software company. So Dan, first of all, welcome to the podcast.

Dan Johnson:              Great to be here. Thanks, Markus.

Markus Funk:              So, tell us a little bit about your background and how you got involved in JurorSearch and also what that software platform does.

Dan Johnson:              Yes. I’m a retired attorney. I never had the privilege that you have had, Markus, to litigate in a lot of jury trials, but I always loved software and realized there might be an opportunity to share some software with the litigation bar. I used to have a data company, so we were pitching litigators the idea that, “Hey, you can look up all sorts of things about jurors. What do you guys think about that for voir dire?” And the feedback was, “The data’s nice. Maybe it’s right, maybe it’s wrong, but boy that software’s cool. We don’t really have an interface, certainly when there’s a bunch of people working on a case at the same time. We don’t have a way that everybody can login and share their impressions, and, you know, ‘I like John Doe, but I really don’t like Sally Struthers, but my colleague does, so we need to talk about it, and we’ve got background research getting piped in, but we don’t have a way to integrate that with everything else that’s happening.’ So why don’t you guys work on the software and forget about the data?” So we took that advice, dumped all the data, and exclusively work on the best—what we like to think of as the best—software platform for managing all the often frantic communications around jury selection in one intuitive place.

Markus Funk:              And so, let me ask a question. When I first heard about JurorSearch, I thought that most of the most experienced trial attorneys tend to be more senior. And the folks who are more senior tend to be more resistant, as a group, to innovation and to software strategies. In other words, I certainly remember in my days as in AUSA, a lot of our jury selection was done on a notepad with notes scribbled and sent to one another. How have you found the reality of introducing trial attorneys to this platform to be? In other words, do you get a lot of resistance? Do people say, you know, “I don’t really need this. I just need my gut feeling and a notepad to handle jury selection”? What’s been the reception you’ve received from the marketplace?

Dan Johnson:              You’re right. There is a generational thing. People around our age, you know, Gen-X and younger, we’re screen first. People older than us tend to be paper first, and then they’ll move over to the screen sometimes. And so, people that are screen first find it a little shocking that very sophisticated litigators, when it’s jury selection time, will pull out a stack of Post-Its and a six different color highlighters, and a big old cardboard with a chart written on it. Right? With like four rows and a bunch of columns, where they will scribble notes down to try to keep track of their impressions of each juror. And that’s how it is for a lot of very sophisticated teams when it comes to jury selection. And so, most of our clients find us to say, “I’ve been looking for something like this. There’s got to be a better way to manage the process. I don’t want AI or machine learning. I don’t want you to tell me who to pick. I can make my own decisions. I just want it to be all organized so that if I’ve got a written jury questionnaire, I’m not shuffling through those every time I start questioning another juror to find, you know, page five I highlighted the answer to question 16. And I’m not scribbling my notes on the margins of the jury cards”—which, you know, happens a lot of times. And the challenge when that occurs is you forget something, or you don’t have all of the relevant notes or materials or research at your fingertips when you’ve got to make a peremptory strike decision. So, sometimes the lead attorney might be a little more seasoned and will let the second handle the screen. And so the second will do all the data entry; will keep track of everything. And when the seasoned one, who wants to build a rapport with the jury, and is making eye contact—and just, like, you know, if you’re writing notes, typically you want to scribble that note down fast, because you’re trying to build rapport and make as much eye contact as possible. And so, whether you’re using a pen and paper, or a tablet or a laptop, typically the attorney wants to be zeroed in on the jurors as much as you can. That’s where that second or the third really comes in handy to keep track of everything, write it down on a legal pad, or type it into the platform, so that all those notes are available to the lead attorney to make his or her decision when it comes time to making the call.

Markus Funk:              And in this day and age, when a lot of people have, essentially, virtual lives, how much of calling of social media platforms et cetera do you see attorneys engaged in? In other words, how much background checking do people do in most of the jury selection processes that you’ve seen?

Dan Johnson:              Yeah, quite a bit. It’s tougher in federal court where they tend not to give as much time. State court tends to be more inclusive of a more vigorous voir dire process. But as long as there’s an hour or two—you know, there are firms that exclusively do this, and they have people at the ready that when those names and addresses are first distributed, they start looking up people’s social media profiles, because discovering evidence of bias that would make it close to impossible or extremely difficult for a juror to be impartial, that’s important. And not every juror is always 100% forthcoming on their background or biases or perspectives.

Markus Funk:              And how do you bring that in? In other words, if you’ve got a panel, and you know that this one juror said—let’s say you’re a prosecutor and they have sort of very anti-government sentiments—how do you see attorneys actually bring that up or bring that in? Do they do sidebars? Do they ask general questions and then use the answers to try to disqualify that particular person if they things that are inconsistent with what you’ve found on their virtual lives?

Dan Johnson:              I’ve seen it mostly helpful for determining their peremptory strikes. And that they want to know something about a juror, less to bring it up to them, and more to understand who they’d like to use among their peremptories. They might—if you’re on the defense, say, they’re a blue lives matter person, or they’re a q-anon, or whatever it is—but if you’ve kind of discovered this—that they’re posting it publicly, right—you’re not, like, unearthing a secret. You might then—sometimes they’ll ask, sort of the hand-raiser questions, you know: “Anybody here heard of q-anon? Or, “Anybody,” you know, “go to the George Floyd protests?” Or, “Anyone think that the police or government can’t be fair under any circumstances for some members of our society?” And then have those general open-ended questions knowing that you’d like to get your target to talk about it so you can get them out for cause rather than using one of your peremptories.

Markus Funk:              Does your platform assist in doing that background investigation? Is it a place where you park the information? How does your platform really process that?

Dan Johnson:              Yeah, that’s a great question. We’re essentially a bespoke Google Sheets, or a very custom-built shared platform for the team and for any vendors around the world. So, we don’t do any scraping of social media. Any of the automatic products out there, I found, aren’t that great. It really does take a human to review posts or profiles to find the relevant nuggets of information. There just aren’t—at least in 2022, I haven’t discovered—any really good programs where you can sort of just plug it in and it’ll spit out things they found that are relevant. There are, however, lots of people that are skilled at this, that tend to use our platform to work with their clients—you know, the litigators—to say, “You’ve given us the names”—previously, you know, they do it without us too, right? They’ll just end up emailing a whole bunch of PDFs around, and then it’s that firehose of information for the litigator in the courtroom to try to sift through and to find the important stuff. So, you know, frantically checking your phone, or trying to filter through the emails, or maybe it’s a text chain, or whispers in the courtroom. So that communications issue is what we solve. But the fun part is it does open up access to lots of the vendors out there that do do this sort of social media background research for litigators, and it becomes a lot easier to hire these folks to do it, because you’re on the same platform. You can get the results in a more organized way.

Markus Funk:              One of the things—different litigators obviously have very different approaches—one of the things I was curious about, as someone—as you said, you may not have tried a lot of cases yourself, but you’ve certainly been around a lot of trials and seen a lot of strategies. I remember as a prosecutor, some folks had the view that they would never want anyone who is big into science fiction on their panel because they’re more likely to believe things that aren’t based in fact but require a lot of imagination. In other words, they’re more likely to believe a defense argument that requires a lot of imagination. And likewise, some colleagues of mine had a thing about the chin. If your chin was tilted more than 90% up at them when they’re asking questions—in other words, if a juror is giving what you could consider a skeptical look at them, that’s another little indicator that they’d use to try and decide when to exercise their peremptory challenges. Let’s go through a couple of different types. Obviously we have prosecutors, defense attorneys; we have civil litigators, plaintiff’s attorneys, and defense attorneys. Are there certain characteristics or questions that you’ve seen, let’s say defense attorneys use, to try to figure out, “Okay, I want to get rid of these people who are going to be against my position. I’m gonna exercise my peremptory challenges.” Have you seen any questions that defense counsel, let’s say in the criminal context, tend to use, and then we’ll switch over to the civil context.

Dan Johnson:              Yeah. No, it is interesting. I do work with a lot of trial consultants, so I do get to hear from them—as I’m getting to know them—what they find to be most valuable or impactful. A lot of times, certainly in the criminal case, respect for authority is an important parameter, or skepticism of authority. And so, whether you’re kind of a rule-follower generally, or whether you have contempt and disdain for those that break the rules, often intentionally, is often a good filter for whether the government or the defense might want that juror to be impaneled.

Markus Funk:              And how about the civil side? Again, I’m sure different attorneys have very different personal practices in this regard. But let’s say plaintiff’s attorneys. What kinds of characteristics have you found to be useful to look for in terms of identifying a juror who is likely to be dispositionally in your corner as a plaintiff’s attorney.

Dan Johnson:              Yeah, you know it’s funny, there’s a debate about teachers. Sometimes plaintiffs feel like they love teachers, because they care about the little guy. And some plaintiff’s attorneys will tell me, “I’ll never impanel a teacher. They’re into discipline” [laughter]. They don’t like it. They feel like we’re doing something wrong, or we’re being greedy, or we’re breaking the rules somehow. I think the antipathy towards large institutions or big business, or the sense that things are corrupt or rigged against the little guy, is often a pretty powerful indicator as to whether somebody’s gonna be comfortable landing on, certainly, something like punitive damages.

Markus Funk:              And I’m going to guess that you’ve seen some situations where you and the jury consultant and the attorneys were very confident that you had the right person on the jury and it turned out that you guys were wrong. I’ve certainly had that happen. Or vice versa. Can you—without necessarily attributing any names to this, or any case numbers—but have you had that happen? Have you seen that, where you guys just—everyone thought, “Oh this guy is a great juror for us. They’re really answering all the questions the right way,” and then it turned out you were dead wrong? Or conversely, where you thought, “This is—darn it, we didn’t want this person on the jury. We thought for sure the other side would strike them,” and they ended up being your foreperson, and really, you know, being a very good juror for you? Can you think of any instances where that happened?

Dan Johnson:              I’ve heard of those stories. And I heard the stories where—because I tend to set people up on their software, and then unless they talk to me about their case, I don’t get to see what’s happening, or what they’re asking. But I find it so interesting that I like to hear about what their strategies are or how they’d like to use it. But once they’re in the case, I don’t get to see anything. But a lot of times I’ll hear that what they’re really worried about is the, sort of, juror with the agenda. And that there’s somebody that wants to be in that box for a reason, so will present as disinterested, totally impartial, because they’re looking to either help the plaintiff or help the defense. So a lot of jury selection strategy revolves around deselection, rather than selection, where they’re combing for and looking for those few that can torpedo the whole thing—those few that are with an agenda but will sometimes lie in order to get on that jury and do what that juror feels is the right and just thing. And so that’s where the background research can help. They don’t have to bring it up; they’ll just use one of their peremptories, and let the juror with an agenda go. That is often what I hear is one of the biggest fears. And one of the values of the peremptory strike regime is the ability for each side to eliminate those that they believe won’t be impartial, so you end up with a far more impartial jury.

Markus Funk:              Turning to jury consultants: I know when I left the government and went into private practice, that’s the first time that I’ve ever had any contact with jury consultants. And I’m guessing that you’ve seen different personalities, different approaches that worked better than others. How helpful are jury consultants, really, in terms of helping the trial team pick the right jury? And also, what are the characteristics of the really good ones, and conversely, the characteristics of the ones that may not be so good? In other words, let’s start with, sort of, how helpful are they really? And I know this is a loaded question given what you do, but I’ll ask it anyway.

Dan Johnson:              Yeah. No, that’s fair. From my perspective, I certainly think they add a lot of value—again, not litigating myself. Only because, like most experts, they’re obsessed with it. It’s all they do; it’s all they think about. And I think from having some sense of the psychology of group decision making, and some notion of how you’re asking a juror to end up with your line of reasoning, and what that means for someone’s personality, that they will in fact end up saying, “Yes,”—you know, on the defense side—“this plaintiff has suffered atrociously bad injuries. And I’m willing to say you’re not going to be financially compensated even though it tugs at my heart strings to see you and your parents in the courtroom every day.” And it takes a personality that’s willing to do that. And conversely, people that are comfortable with—pick the number, ten million or a hundred million dollar judgment—“I’m willing to say, ‘You will in fact pay that.’” And so, I think it’s helpful, even just on the conversation and initial consultation side, to have that framing of: “Who are the type of people that you think are most likely to land on your argument?” Because, you know, most people aren’t. We’re trained as attorneys to think very rationally, and we’re trained to apply the law to a set of facts. But 99% of the people don’t have that training. So I do think it is helpful to be exposed to people that do this for a living and think about it all the time, and a lot of the tips are—you know, maybe they feel a little commonsensical—but I think they’ve got some resonance. What’s interesting to me is there’s a whole range of services that they offer. And so, they can get into crafting your questions, or crafting your survey assuming you get one, sitting with you at counsel table, and being with you the whole time. But I don’t think it’s necessary—certainly in every case—to have that scope of partnership at a trial. But I’d encourage anybody, if you’ve got any budget at all, to have a conversation or two, because there are insights that they bring (just doing this all the time) that I think you’ll get something out of the conversation.

Markus Funk:              You know, I think the point you just made, Dan, about how different jury consultants offer a different range of alternatives of services, and that you really have to choose the ones you want or think will be most helpful—anecdotally, I mean, for me, the first civil trial I did was a fairly large one down in Miami state court; and like I said, never had a jury consultant although I had done dozens of trials, and we did mock trials and we had questions for the jurors: what arguments do they like and not like. And count me a skeptic at that point still, about this whole process; it felt very, sort of, artificial. And we’d bring all these civilians in that would get paid a little bit of money just to, sort of, sit in these fake jury duties with truncated arguments and then weigh in on them. And then at the actual trial, we had the jury consultants sit with us, work with us, give her feedback on jurors; and as you know, usually time is very short and you’re kind of frantic—which is, no doubt, one of the benefits of your software, which helps you become a little less frantic, a little more organized. But then you have an additional person—not just your trial team, not just paralegals—you have an additional person telling you, “Oh, I really like this juror,” and other people saying, “Oh, I really don’t like that juror.” And then ultimately there is a decider that has to make a decision about, “Who are we gonna try to exercise our peremptories against?” Or, “Who do you want to insulate?” How often do you see the jury consultants, sort of, being the primary mover there, where they really make the decision? And how often do you see it where the lawyer—the lead lawyer—in other words, how much deference have you seen lawyers pay to jury consultants where there might be a difference of opinion about whether a particular juror is good or bad?

Dan Johnson:              That’s a great question. I think there’s certainly a range. I think most trial consultants feel that they present the strategy to the litigator, but ultimately—I haven’t really seen many trial consultants, sort of, talk about it like, “This was my pick,” but rather, “I felt good about this pick, but it’s always the litigator’s decision.” I’m sure there are some litigators that are happy to defer. But, you know, litigators and deference don’t always run together, and so, you know [laughter], I do—I think it is more the case that the jury consultant is a trusted advisor that often will win the day with the litigator, because they usually know what they’re doing. But sometimes they’re gut calls, and those—ultimately it’s the litigators decision. So, I think there is a range, but I do think—at least I’ve heard more—that when the trial consultant’s more involved from the beginning, helping to shape the narrative, testing some of the narrative themes, and crafting some of the questions, reviewing the answers as they come in—it makes for a more collaborative relationship when it comes time to picking those jurors.

Dan Johnson:              And in the federal system, typically, the attorneys play less of a role in terms of jury selection, in the sense that they—especially on the criminal side—often judges will want to have the questions given to them. The judges will ask the questions, and you can ask one or two follow ups. One of the big differences I noticed in this Miami trial, is that basically you could kind of—there were very few parameters or limits around what you could do, in terms of talking to the jury. What have you seen from attorneys that you really like? Like, what type of personality types have you seen that do really well with jurors? And what personality types have you seen that, sort of, rub the jurors the wrong way?

Dan Johnson:              Yeah, that’s interesting. I do—there’s a big difference in federal and state court. Federal court is typically very truncated and a, often, judge-centric process. And state courts, they vary widely in how they run jury selection. And sometimes judges still like to run a very tight ship at the risk of jurors with an agenda making it on without really a vigorous process of vetting. And sometimes they really let the attorneys battle it out, to end up with  only the jury pool that’s been vetted in the sense that anyone with any objections has been removed. And so, it is a fine line, because the attorney is always trying to appear friendly, and trusted, and somebody that the juror is rooting for as, you know, an honest person that is doing the right thing, but at the same time, aggressively getting rid of people that are going to be adverse to the client’s interest. And so, I think it’s helpful to always go in with one person, so that if somebody else needs to stand up and ask some tough questions, they can, and then the lead attorney can remain the friendlier one. I think it’s just really hard—and I get in on the prosecutor or the public defender side—it’s just not the resources to do it with somebody else. It’s just really a challenge to do it by yourself.

Markus Funk:              Yeah, you know, one of the things that really jumped out at me in context of doing that first trial on the state side is how important it is to have that  initial reaction of the jury as a pool, because it’s kind of them against—in their mind, they’re a team. And if you start attacking any of their people—their members of their team—even if the juror is totally providing inappropriate answers, or seems totally disinterested in the process, they hold it against you. And one of the things we notices is that one of the sides took a lecturing approach to jury selection. It really seemed to go down very badly with the jurors, whereas the other side tried to be more friendly and engage them and talk. And one of the—I want to get your feedback on this—one of the things I think was important, it’s something we always were taught in the US attorney’s office is to be a fair person so that the jury looks at you as someone they can rely on. In other words, if I’m the prosecutor and I ask a question about defendants, and some guy says something like, “Oh, I think criminals should go to jail,” you could then just say this is a good guy for us, so I’m gonna not ask anymore questions. Or you can hold their feet to the fire a little bit, and make sure they’re gonna be fair to both sides. In other words, they’re not just, “Hey I think the government’s right always, so therefore we should always put people in jail.” So, we really—we were always trained to—both because it’s the right thing to do, but also because when jurors are watching you, they say, “Oh, this guy is really fair to both sides. He asks questions that may get answers that are bad for him, but maybe good for him,” and I put those in quotes. And I think in that civil case, we didn’t see that. We saw the other side, really, asking questions about—trying to elicit jurors who are gonna be more beneficial to their perspective, and then leaving all questions that might seem to be indicative of a lack of fairness that would go against the other side, as if those things weren’t even said. That was one observation I had that carried in well from the government days. Curious to get your perception on that.

Dan Johnson:              Yeah, you know, there’s something noble about a jury, whenever it’s impaneled. And it’s really an American experiment. I always like it when there’s sort of a speech about it, when the gratitude for their service is expressed sincerely, and the gravity of the task before them as citizens in our republic. I do think it’s ennobling. And I would encourage litigators to spend a little time thanking them on behalf of a unique American government institution. I do think that tends to lead to “better behavior” by citizens serving as jurors, when they’re called to it. I get into a lot of the studies and the judges that work on this stuff, because I have a court product too. And typically, pre-getting-summoned, people are not high on jury service. Avoid it, get out of it. But once people do it, their perspective of jury service skyrockets. Most people have an excellent experience at jury service if they actually do a trial. And they’re kind of proud of themselves for participating. And there are always exceptions. But generally, the sort of baseline view of jury duty is pretty low before it starts, and it goes way high after it happens. And I think that speaks well of juries in general.

Markus Funk:              We’re in the post-COVID—or at least, one hopes, post-COVID phase—and I’m wondering whether you’ve seen that that has any impact on jury trials. We all often hear about the vanishing jury trial—how there were once so many jury trials and now there’s so few, and how all these big law firms, really the people with the big jury trial experience really tend to be people who came to law firms from the government, let’s say, as opposed to trial experience gained while at a large law firm, because companies rationally try to avoid trials whenever possible. What are your thoughts on the post-COVID reality of jury selection and jury trials?

Dan Johnson:              Yeah, I think typically, pre-COVID, about 150,000 jury trial a year, you know 5,000 federal, the rest, state. That plummeted during the pandemic, to a trickle. Now it’s largely back, and there’s a backlog—I read or heard somebody speak about—a two-yearish backlog. And so, the pace of jury trials is picking up; the volume is larger. There are a lot of settlements, you know, a lot of people will—a lot of cases settle—this happens to me a lot—where, you know, people are ready to go on the platform, and the first ten jurors come in, and then that’s when they reach a settlement. And so, sometimes it takes having a jury actually getting impaneled before the parties are ready to reach an agreement that neither one of them really likes, but they get there. But I think that there is a backlog, and I think the judges that are struggling with it are very cognizant of it, and are looking for any efficiencies to improve the process so more of these cases can get heard.

Markus Funk:              You know, prior to our conversation now, we had talked about the ABA model rules on technological or technology competence. How do they factor in to what you do—what you see?

Dan Johnson:              Yeah, I mean, there’s a general model rule that attorneys are to improve their competence in technology. Typewriters aren’t really, you know, appropriate any longer, so our ability to write using word processing software is really standard these days. I think in other aspects of litigation—jury selection being one of them—using modern tools to ensure that notes aren’t lost, all information is readily available, any background research can be integrated along with courtroom impressions, I think that’s typically a good move for litigators to do, and take advantage of the technological advances that are broadly available.

Markus Funk:              We don’t need to get into all the details of the background of this particular case, but I saw on your website, you mentioned a case in which a judge—months after the case was over sua sponte, and without any motion from the other side, essentially found that there were BATS violations in a federal case. I happen to think I know the case and know the circumstances there which were very difficult for the people involved. Because again, in this case, the judge came out many months after the trial was over and said, “Hey I’ve been thinking about this a while; government, tell me why you struck this juror, or these jurors.” How is your platform helpful in terms of being able to—not avoid those situations, I don’t think they come up that often—but to address situations where, whatever the context, later there’s an allegation of bias or some misconduct in terms of jury selection?

Dan Johnson:              Yeah, it’s a great question. And as a refresher to listeners that might not be as familiar, Supreme Court case law has made clear that peremptory challenges are permitted for any reason except on the basis of race or gender. And so, it’s broadly considered “Batson challenges” after the case—where Batson was the defendant who became the plaintiff and brought this allegation which the Supreme Court ultimately affirmed, that the prosecutor was striking all African American jurors, and that became impermissible. The challenge, like a lot of implicit bias within our society, is how to demonstrate that or show that, and on the government side, or on the civil side—you can bring a Batson challenge on a civil case too—to ensure that every peremptory strike, there is a Batson compliant reason to justify the strike, meaning race or gender neutral, and so, the reason for exercising the peremptory strike should be documented and available in case there is a—what’s often called a Batson challenge—and which can come months later, and is sometimes called a “Batson reconstruction hearing,” where the party that is facing a Batson challenge—meaning their strikes were impermissibly motivated by racial or gender bias—you need to show: no, the potential juror happened to be a female, or male, or happened to be a particular racial group, but that’s not why we chose to strike that juror, it’s because he or she expressed this and said that and had this or that in the background, and thus, we didn’t feel he or she could be an impartial juror. The challenge, of course, in this case, that you mentioned—but it could happen anywhere—is that in a fast paced jury selection, finding those scribbled notes as to why a peremptory challenge was exercised for a particular juror can be a problem, and the nice part about software is that it’s all saved, it’s organized, you know, you have to put it in there, and so your notes as to why you chose to exercise a peremptory strike are kept in a really easy way so even if in the middle of trial, you’ve got your notes, you’ve got your motivation, you’ve got your reason, and for a training exercise, it’s a good practice for new litigators and new associates to be refreshed and remember, “Hey when you want to strike somebody, go through and make sure,” you know, “there is a legit reason to exercise that strike. Because if you don’t have one, maybe you shouldn’t exercise that strike, right? Maybe that’s implicit bias that’s manifesting.” So, it’s a good gut check to make sure everyone’s on the straight and narrow. Those Batson reconstruction hearings can be chilling, because in this case, they come up sua sponte, they can come up months later, so it’s good practice to have a very vigorous system of recording all of the notes that are your reasons for each of these peremptory strikes.

Markus Funk:              And so, maybe ending where we might have otherwise begun, Dan, how did you get into this line of work? As I understand it, you’re a University of Chicago Law School graduate—sorry to see that you did not get into Northwestern; that must be the reason that you went to the University of Chicago [laughter].

Dan Johnson:              Sting, STING! You don’t need to rub salt in the wound.

Markus Funk:              —A very fine institution that I actually had the privilege of teaching a class at for a period of time and my colleagues and former colleagues teach—

Dan Johnson:              Oh great, I didn’t know that—

Markus Funk:              —Yeah. A great, great school—

Dan Johnson:              —Oh, that’s great—

Markus Funk:              —But, how did you go from going to the University of Chicago Law School, graduating, and then how did you get to where you are now doing juror-focused software work?

Dan Johnson:              Yeah, I mean, long and winding road, but I really loved software. I just love the idea that you can hear what people are struggling with, hear their workflow challenges, and you can create something that if it solves—if you and I talk—you know, I just don’t have a way to do this. And if I can solve that for you, well the same thing is going to work for 100 other people or 1000 other people that are in the same shoes. So, I just love that whole idea that if you solve a problem for somebody, and it’s totally replicable for 1000 new people. And it was—really, a trial consultant in Chicago—I was pitching this idea of data, and, you know, “You can look up anything about somebody these days,”—which you can—and he said, “Yeah, I don’t know if I trust all that, what magazines they subscribe to, or maybe there was a survey, and somebody extrapolates… and I’m sure there are very smart people that he’s probably against, you know, whatever, climate change, or maybe he’s for abortion rights,” or whatever it is. Maybe that’s true, maybe it’s not. But as an industry, we don’t really have a tool for that. And when he shared that very high-dollar impactful trials are using Post-Its, I thought, well that’s a niche I should try to pursue.

Markus Funk:              Have you ever seen prosecutors or defense attorneys, and the federal defenders or the state defenders—I’ll take out of the mix our well healed private practitioners—but have you seen prosecutors, for example, use jury consultants? And then I’ll ask you how they can afford it. But have you seen that?

Dan Johnson:              Most trial consultants are very open to pro bono working with the government, right? Everybody recognizes that they’re resources constrained. And most trial consultants are on-boarding new people, and so, whether it’s because they happen to believe it, maybe they’re more defense oriented people or more prosecution oriented people and maybe they just want to help, but if some of your folks on the government side are listening, I think they should ask. I’ve been pleasantly surprised—because, you know, I’ve got government clients—we’re free to government agencies for the same reason: they’re resource constrained. And so, a lot of times—one state’s attorney told me, “I like the software. It’s good. It’s a lot better than what we’re doing. But what I really like is there’s an expert on the other side. That when I’m facing a tough call, I’m gonna be able to ask a question, and that expert—you know, they’re seeing everything in real time too.” And I think it can be counter-intuitive that these consultants that can have a great hourly rate, when it’s a big case, are open and willing to do it for next to nothing, either on the training side or to help their junior associate get a little experience. But I’ve been pleasantly surprised by the receptivity to help out.

Markus Funk:              That’s fascinating. I never thought about that in government service. That’s really an interesting approach to take. Well, Dan, I want to thank you for taking the time with us, and for being on the White Collar Briefly podcast, and sharing your thoughts on the topic that I think a lot of folks who are lawyers—and maybe litigators, but don’t do a lot of jury trials—maybe don’t think about as much as they should. And I know I’ve learned a lot today, so I really want to thank you today for joining us.

Dan Johnson:              Hey, I appreciate it. Thanks for the opportunity. And good to see another fellow University of Chicago Law School guy.

Markus Funk:              You got it.

Outro:                         This concludes this episode of White Collar Briefly. Please visit WhiteCollarBriefly.com, where you can subscribe to our blog and find additional updates on current white collar and compliance topics. White Collar Briefly, a Perkins Coie mini-pod, copyright 2020 by Perkins Coie, LLP. Thank you for listening. [closing music]

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