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.