Criminal Defense Lawyers

Crafting the Right Jury Questionnaire in a Counterfeiting Trial

Crafting the Right Jury Questionnaire in a Counterfeiting Trial

Selecting the right jury is crucial in any trial, but especially in a counterfeiting case where technical details about trademarks, patents, and intellectual property are involved. A well-crafted jury questionnaire can help lawyers identify biased or unsuitable jurors and select a jury that will be receptive to their arguments.

Here’s a guide on creating an effective jury questionnaire for a counterfeiting trial:

Go Beyond Demographics

While basic demographic info like age, gender, occupation etc. is useful, you need to dig deeper to reveal biases. Ask about hobbies, social media use, shopping habits, and opinions on counterfeit goods. For example:

• Do you use social media sites like Facebook, Instagram, Twitter? If yes, how often?
• Do you enjoy shopping for designer brands like Gucci, Louis Vuitton, Rolex? Why or why not?
• Have you ever knowingly purchased counterfeit products? If yes, what kind and why?
• What do you think about people who buy counterfeit luxury goods? Do you judge them negatively or not really care?

Their social media use indicates their exposure to counterfeit goods marketing. Luxury shopping habits reveal their value for authentic brands. Past counterfeit purchases show their attitudes. You’re looking for potential biases for or against counterfeits.

Ask About Legal Experience

It’s important to know if jurors have been involved in lawsuits before. For example:

• Have you ever been a plaintiff, defendant, or witness in a civil or criminal case? If yes, please explain.
• Have you served on a jury before? If yes, what type of case was it? What was the outcome?
• Do you have any legal training or experience with the U.S. court system? If yes, please explain.

Jurors with relevant legal experience may understand complex IP laws better. But they may also have biases from past cases influencing their views.

Include Trademark and Patent Questions

Since trademarks and patents are integral to counterfeiting, ask jurors about their knowledge and opinions. For example:

• Are you familiar with what a trademark or patent is? If yes, please explain your understanding.
• Do you own any trademarks or patents? If yes, please describe.
• Do you believe trademark owners should be able to control how others use their marks? Why or why not?
• Do you think patents help innovation or hinder progress? Explain your viewpoint.

You want to assess their familiarity with IP laws and any pre-existing biases that could influence their application of those laws.

Ask About Brand Loyalty

If your client is a well-known brand pursuing counterfeiters, you want brand loyalists on the jury. Include questions like:

• Do you consider yourself loyal to any particular brands? If yes, which ones and why?
• Would you ever buy counterfeit versions of your favorite brands? Why or why not?
• Do you believe it’s ethical for individuals to profit from counterfeiting popular brands? Why or why not?

You’re looking for jurors who feel protective of brands they love and view counterfeits negatively. The defense wants the opposite.

Ask About Counterfeiting Penalties

To assess jurors’ views on punishment, ask:

• Do you believe counterfeiting should be a crime? Why or why not?
• What penalties do you feel are appropriate for selling counterfeit goods? Fines, imprisonment, both?
• Do you believe individuals who buy counterfeits should also face penalties? Why or why not?

Plaintiffs want jurors who believe in harsh penalties. But the defense wants those who question if counterfeiting should even be illegal.

Use Open-Ended Questions

Avoid yes/no questions. Use open-ended ones to encourage jurors to elaborate. For example:

• What are your general thoughts about counterfeit goods being sold today?
• In your opinion, what are some reasons why people choose to buy counterfeit products?
• Please share any positive or negative experiences you’ve had with counterfeit products.

Open-ended questions give jurors a chance to reveal their true thoughts and experiences.

Test Different Question Phrasings

Small wording differences can impact responses. Test multiple versions of key questions during jury selection. For example:

• Version 1: Do you believe counterfeiting harms innovation?
• Version 2: Do you think counterfeiting stifles creativity?

The same query framed differently may elicit varying perspectives from jurors.

Use Plain, Simple Language

Avoid legal jargon and complex wording. Use simple terms jurors can easily understand. Define any technical terms. Your goal is maximizing comprehension.

Keep it Concise

Don’t overwhelm jurors with an overly long questionnaire. Stick to the most critical questions. You can dig deeper during individual voir dire. Jurors will resent slogging through too many questions.

Apply Lessons from Past Cases

Review questionnaires from similar cases and note which questions yielded the most useful juror insights. Reuse and refine those queries.

Collaborate with Co-Counsel

Develop the questionnaire together with co-counsel to incorporate multiple perspectives. Vet questions to ensure they aren’t leading or biased.

Make Sure Questions Are Legally Permissible

Some topics like race, religion, immigration status etc. may be inadmissible or unethical. Have an experienced attorney review the questionnaire to avoid issues.

Test the Questionnaire Beforehand

Have objective colleagues or mock jurors take the questionnaire and give feedback. Refine questions that are unclear or uninformative.

Plan How You’ll Use Responses

Consider in advance how you will apply jurors’ answers during selection. Set criteria for an ideal juror profile based on responses.

Crafting the perfect jury questionnaire takes time and strategic planning. Following these tips can help lawyers in a counterfeiting case identify the best jurors and gain an advantage right from the start.

Sources:

[1] Using Jury Questionnaires: (Ab)using Jurors

[2] Crafting Jury Instructions To Win Trials And Appeals

[3] Jury Instructions: A Road Map for Trial Counsel

[4] Handbook for Trial Jurors

[5] Superior Court Model Jury Instructions Drafting Guidelines