Two Minutes to Win the Jury with Robert Hirschhorn

Welcome to Elawvate,

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Hey, it's Ben.

Rahul and I started this podcast because

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And both of our firms also regularly

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countries in cases where we can add value.

If you're interested in collaboration or

even if you just have a case or an idea

that you want to bounce

off us or brainstorm,

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So here's how it works.

If you have a case or an idea that you

want to talk about or brainstorm with us,

just send me an email to ben@elawvate.net,

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submit a case workshop request.

We will schedule you for a confidential

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about your case to see if we can help.

If you feel like there would be good

value in collaborating on the case

further, we can talk about that. If not,

that's okay too.

We enjoy helping other trial

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someday you'd be willing to

do the same for us if we

needed your help. So again,

if you're interested in

workshopping your case with us,

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Welcome to the Elawvate

Podcast. I'm Rahul Ravipudi.

I'm Ben Gideon.

Ben, we're both in suits today for

the podcast. This is pretty amazing.

I'm headed to court.

I'm assuming there's a lot going on

with that tragedy and the ice shooting

out in Maine that you've been involved in.

Can you just share with our listeners

a little bit about what happened and

what's going to happen?

I mean, to say a tragedy, we

deal in tragedies every day,

but in 25 plus years of doing this work,

I've never been so emotionally compelled

or connected to a case as I am to this

one because what happened here

is so egregious and so needless.

We represent the widow of

Johan Sebastián Duran Guerrero,

who is a Colombian immigrant,

25-year-old guy with a beautiful partner

and a beautiful three-year-old daughter

who came to this country to help

build himself a better life.

Extremely hard worker, doing everything

lawfully through the immigration system,

had a court date for his citizenship

application. A week ago Monday,

an ICE officer shot him

dead while he was driving,

just pulling out of his apartment to

drive himself to PetSmart where he

worked. And like many of these other

ICE-related shootings. Well, first of all,

in this case,

the government did acknowledge that

he was not even the target of their

operations. There was no suggestion he

had never done anything wrong and never

committed any crime. But most

of these other shootings,

rather than doing what's right,

apologizing or taking any action

to make good to the family or to

prevent this from happening again, the

government has not only taken his life,

but has tried to impugn his and slander

his character and his dignity after his

death by labeling him alien or

illegal by suggesting he did something

wrong that may have led to the shooting,

all of which is completely false,

completely bogus.

Basically everything the government has

said about this is provably wrong as it

has been in many of the other cases where

they made initial statements that were

then proven to be false through a

video that was discovered later.

So this is fast moving and embroiling

of our community and the nation

in certain respects. And then as our

guest Robert Hirschhorn just pointed out

before we went on air here,

that multiple ex-wives of the shooter

have now come forward saying that he had a

long history of mental illness,

apparently had severe diagnoses,

including things such as bipolar

condition, brain injuries.

He had a history of violence toward

his ex-wives, threatening to kill them,

behaving violently, things such as

throwing boiling hot water at them.

He physically assaulted his child,

all of which is reported in various court

records that have now been pulled from

different courts in Maine.

So had anybody reasonably

vetted this person for the job,

they would've determined he was completely

unfit and not suited for this role.

But my theory about it is

that the government doesn't

want to vet people because

they want people like this in these roles.

That's my soapbox 60

seconds version of it,

but we should move on to the topic of

the day. But I'm fired up and very angry

about all of this, obviously.

Bring justice on that and bring it

quick, Ben. I mean, that's awful.

It's not what this country

should stand for in the least.

With that segue, sorry, Robert.

It's our pleasure to have Robert

Hirschhorn on the podcast today.

Everybody who listening probably

knows Robert Hirschhorn.

He's probably the most famous,

most well-respected jury

consultant who has assisted trial

lawyers in the last

couple decades in America.

He's been a regular feature on

many national news broadcasts.

He's been involved in

many high profile cases.

I learned about him from

the Arnold Nitkin firm.

I know he's worked on a lot of cases

with Jason Itkin to great results.

He's also founded a new AI technology

that we've recently worked with,

which I thought was great called,

I think it's VerdictHub, right?

We'll get into that. But before

we get into that, Robert,

can you just talk a little bit more about

your background and how did you come

to all this and how'd you become

kind of the gold standard,

at least in our perspective,

for jury consultants and for

trial lawyers in America?

Can I just throw one thing in

before you say something, Robert?

Just to add to the accolade, Mark

Lanier swears by Robert Hershorn,

uses him for all of his trials.

And we all know Mark gets some pretty

amazing results and justice for his

clients and tried the privilege of

getting to work with Robert on the first

social media addiction trial that was

trying here in LA Superior Court and got a

great outcome. So say firsthand,

Robert, you're amazing.

Very kind. Appreciate y'all

inviting me onto your podcast. Ben,

I got to tell you,

lawyers like you and Rahul are what

make us proud to be lawyers because what

you're doing, for example,

with that main case,

what I've seen the work Rahul

do, y'all make us proud,

so thank you for doing

everything that y'all do.

So let me tell you a little bit about how

I got into this. I was a young lawyer.

I was doing criminal defense in San

Antonio, Texas. It's the early '80s.

I won my first 12 jury trials.

I thought I was going to be

the next Racehorse Haynes.

I thought I was going to be America's

next great criminal defense lawyer.

Client comes into my office one day.

He's a law enforcement officer

charged with aggravated assault,

and he's also charged with robbery.

And so he comes into the office,

he tells me the facts of his case.

I can't think of how to win this case.

There's five eyewitnesses. He's caught

a hundred yards from the alleged crime.

He's found with an uzi, a sawed off

shotgun and a 22 with a silencer.

These are not good facts. So I

went to my boss and I said, "Jerry,

what do I do?" And he said, "You got

to hire Cathy Bennett." And I said,

"This is 1984." I said, "Who's

Cathy Bennett?" He said,

"She's a jury consult." And I

said, "What's a jury consult?

I'm a three-year lawyer. I don't know

any of this stuff." He says, "Robert,

stop asking all these questions.

Go call Cat." I called Cat Bennett.

I talked to her. I convinced her to

help us with this case. We go to trial.

We win the case. We get

an outright not guilty.

I turned to Cat Bennett

in 1984 and I said,

"You have changed my life. I want to

learn to do what you do for a living." And

here's what Cat Bennett said to me.

She said, "Robert, if you're serious,

I'll do this. But for one year,

you have got to be a sponge.

So when we have our meetings with clients

or we're in a jury selection or if

we're doing witness prep, I don't want

you piping up. I don't want you talking.

I just want you to be a sponge." Now,

for those of you that are

trial lawyers listening in,

we're all type A personalities.

Can you imagine putting a muzzle on

for one year where you can't say shit?

You can't say anything. I did

it. The greatest, by the way,

the greatest closing argument I ever

gave was when I convinced Cathy Bennett

to marry me. I got to

change my profession.

I was blessed to be married to

Cathy Bennett, and it's been just,

I've been so blessed with

such a remarkable career

and work with great lawyers

and do really meaningful work. And so

that's why I feel so blessed that every

single day, to me, it's like a holiday.

That's how much I love the work that I do.

And does she let you talk now?

So almost one year of the day

after Cat and I got married,

she felt a lump in her breasts.

Women, do your breast exam.

The life you're going to

save is yours. Please do it.

Felt a lump in her breasts. By

the time we had discovered it,

it had already metastasized

to her lymph nodes.

Cat and I went all over the world

looking for the cure for breast cancer.

In fact, six months, I mean,

this is what a trooper she was.

She not only was one of the founders of

the field of jury consulting, Cat was,

she was such a trooper. She

was such a true believer.

She believed so much in helping the person

accused or the little guy that she's

on her deathbed. She gets out of

her deathbed, goes to Florida,

helps Roy Black, may he rest

in peace, helps Roy Black,

pick the jury in the

William Kennedy Smith case,

got to not guilty in that case. And then

six months after that, Cat passed away.

So you know y'all, when Cat passed

away, I had to make a decision.

Cat had given me these

really remarkable tools,

and I could either go back to practicing

law and just crush it as a lawyer,

as a trial lawyer,

or do the best I could to keep Cat's

memory and her vision and her view of the

world alive. And I chose the

latter path because to this day,

when people call my office,

the phone is answered.

Cathy Bennett and Associates to this day,

and that's how I want to end my life is

my phone always being answered to that

announcement. Quite the story, huh? It's.

Amazing. So Robert,

tell us about the evolution

of jury selection,

trial strategy from the Robert

Hershorn perspective. How did it start?

And then how has it evolved?

Controversial statement number one.

I spent 30 years advocating

for jury questionnaires.

You should always have a jury

questionnaire. I would push lawyers.

I push judges. I do everything I can.

Here comes the controversial part.

I've now done a 180. I now don't

believe in questionnaires anymore,

except in very limited circumstances.

And those limited circumstances are

when you've got a very controversial or

contested liability case. But as a general

rule, if you've got strong liability,

I don't think you want a questionnaire

anymore because what corporations are

doing with that information,

especially with the advent

of artificial intelligence,

which we're going to talk about

a little later in this podcast,

I know what these corporations are

capable of doing. I'm in that space now.

I'm in the artificial intelligence space.

I know what they're capable of doing.

And I'm talking about the bigger

cases. In the bigger cases,

I'm telling y'all you don't want a jury

questionnaire anymore. It helps the

defense more than the

plaintiff does. All right,

so let's talk about the evolution of the

jury consulting world. When I started,

90% of the cases that we worked on were

criminal cases because the civil lawyers

didn't really know about jury

consulting in the '80s. I mean,

that really was the infancy of this

whole profession of jury consulting.

So the vast majority of my

clients were doing criminal cases.

We were doing regular run-of-the-mill

cases. We were doing high profile cases,

and then it caught on

with the civil lawyers.

And now the civil lawyers in

virtually every case of substance,

they are using some form of

jury consulting in their cases,

whether they hire a jury consultant to

help with a focus group or with a mock

trial or write voir dire questions or

be in court and help them with jury

selection.

The whole field of jury consulting

has exploded. When I started as a jury

consultant in 1985, after my one-year

keep your mouth shut period ended,

there were probably a hundred jury

consultants in the whole country. Today,

there's thousands of jury consultants.

So the profession of jury

consulting has really exploded.

I think it's done a lot of good.

I think there's some people that do things

in the jury consulting field that I'm

not proud of, just like there's lawyers

that do things that I'm not proud of.

But by and large, it's

been a great addition,

provided a great service to lawyers,

honestly, on both sides of the vape.

I don't work on the defense

side of the v much anymore.

I would say maybe 5% of the time. As

long as it's not a personal injury case,

I'll help in a business.

But I think jury consultants really

do help both sides of the vape.

This is the first time I'm hearing that

there's thousands of jury consultants

because I only work with a

very small handful of them,

knowing that there's some that do only

defense and some that do only plaintiff.

That still is a large number

of jury consultants out there.

For a trial lawyer who's contemplating

using a jury consultant not named Robert

Hershorn,

can you give any advice on how they can

distinguish between someone who's giving

them science and professional

advice versus potentially a scam?

Rahul, as usual, great question.

Number one, get references.

Ask them for names of lawyers that

they've worked with and call them. Okay?

Number two, ask that person why

they became a jury consultant.

You want to find out what motivates

them to do what they do for a living.

You got to learn,

are they doing it because they love what

they do or it's a job that pays them

well? And there's a difference

in people's mindset.

That's why you got to understand

why they do what they do.

If they've written any articles,

asked to read any articles

that they've written,

and of course you should Google them and

find out as much information as you can

about them. Jury consultants, again,

are like lawyers, doctors, accountants,

used car salesmen. There's

good ones. They're shitty ones.

You don't want to end up with a shitty

one because you're just going to have a

bad experience. We just got called on

a case where a jury consultant had done

the focus group for the lawyer,

basically made all the money in the case.

And when it came time for jury

selection, the jury consultant said, "Oh,

by the way,

I'm not available to help with jury

selection." You're going to hire a jury

consultant, give them the date of your

trial and make sure they're available.

Robert, as you know,

availability of attorney-directed voir

dire varies dramatically state to state

and venue to venue.

I think often these discussions come

out of states that have fairly liberal

rules,

but then lawyers that are in venues that

have more restrictive approaches can

sometimes feel underappreciated or

as if this doesn't talk to them.

What advice or strategies do you

have if there's stringent limits,

maybe time limits or number of questions,

or you have to preview

your questions in advance,

or you have to use

questionnaires or the various,

I'm sure you've seen all different

iterations of restrictions.

Here's what I can tell you.

10 minutes of attorney voir

dire will always be better than

an hour of judge-conducted voir

dire. And the reason is because,

and lawyers, you all know this,

jurors aren't going to tell judges

what they honestly think in majority of

cases. They tell the judge

what they want to hear.

They don't want to argue

or disagree with a judge,

especially if they're

like a federal judge.

That's why judge-conducted questioning,

judge-conducted voir dire is never

particularly in enlightening.

The only people that are going to

raise their hand or open their mouth,

people that have a really strong

voice, they will speak up.

They will not be afraid, but the vast

majority of your panel won't speak up.

So here's my point.

If you're in a venue that

has really restrictive rules

regarding jury selection,

attorney participation, jury selection,

like either it's a severe time limit

or even worse, a no time limit,

the judge does all the questioning,

you got to submit questions to the judge.

Here are my two rules. Number one,

if you're in a venue where there's

no attorney participation at all,

file a motion and request 10

minutes of questioning the jury,

10 minutes of voir dire. That's all

you want to ask. That's number one.

Number two, how much damage

could a lawyer do in 10 minutes?

Think about it from the judge's

perspective. Judge wants the jury picked,

the opening's done. The judge wants

the case done as quick as possible.

All right? They're just

afraid you as a lawyer,

you're going to spend all

this time picking the jury.

No, 10 minutes. All right?

File that motion if you're in

a venue that doesn't allow it.

I don't give a shit if

there's case law on it.

I don't care if there's a local rule

on it, if that's the judge's rule.

I don't care.

File the motion because eventually

one day some judge will say,

"What the hell?

I'll give you five minutes," right?

What do you do in the five or 10 minutes?

I'll tell you that in just a second.

Here's the next thing. If you have

to submit questions to a judge,

if your jurisdiction requires

you to submit questions,

do not submit 50

questions. Stop doing that.

What you want to do is submit

two, three, four topics.

And within those topics,

the questions that you need.

But you're not wanting to submit a whole

bunch of questions because the judge is

only going to pick the ones that he

or she feels most comfortable asking,

and those are never the questions

that you need the answers to. Okay?

Limit the number of questions that

you're going to submit to the judge. Now,

back to the 10-minute voir dire. You

ready? Do what we call scaled question.

Lisa Blue and I have been pitching this

for 20 years now. A scaled question is

where you ask a question and you ask

the panel on a scale of zero to 10.

We use a zero to 10 scale.

On a scale of zero to 10,

how strongly do you agree or

disagree with that concept? Here,

I'll give you an example

of a scaled question.

If the plaintiff has proven their

case by a preponderance of evidence,

I would find in favor of the

plaintiff. Zero is I disagree. 10 is,

I strongly disagree. I strongly

agree. Zero is I strongly disagree.

10 is I strongly agree.

If you prove your case,

jury should find for the plaintiff.

Now that seems like a no-brainer to us.

Everybody should say 10,

but you'd be surprised you might

have jurors that say five, six, four.

If you have 10 minutes, you want to

do two or three scaled questions.

That's how you use your 10 minutes because

you're going to get information from

every single juror.

You can not only weigh and measure them,

but you get to measure them against each

other so you can intelligently use your

peremptory strikes.

So on that example, let's just say

you ask that question, 12 jurors,

eight of them say 10, and

then a couple say eight,

and then somebody says five and six and

seven. With this 10-minute voir dire,

do you get to ask the

five, six, and sevens why?

Or do you just take that number

and just use it as a data point?

What if they think that five is

just like, "Hey, I'm unbiased,

so I'm just right in the middle, guys,

whatever it is." Obviously not listening

to the question because the question

assumes the fact that you proved your

case, but what do you do with that?

I got it.

I'll take that five because I want to

have one or two more data points in

addition to it, Rahul. Scaled questions

don't give you challenges for cause.

They might identify an area for cause,

but just because somebody says zero or

one, that in and of itself is not cause.

You then would have to follow up. So

if you get a five, if you get a three,

four, five, or anything higher,

you don't have time to follow up.

You get a zero, one, or two, yes, you

need to follow up with that juror.

The follow-up is one

question. It's very simple.

What I hear you saying is even if

the plaintiff proves their case,

you would still not feel comfortable or

you would not be able to find in favor

of the plaintiff. Is that fair to say?

Or do you agree with that? And that's

how you got to try to get the juror into

cause. In a really restrictive

voir dire, sorry, I'm in Texas.

We call it voir dire. Bear with me.

In a really restrictive environment,

you don't have time for much follow-up.

You can maybe do one and it

has to be with the outliers,

not people in the middle.

Let's talk about the opposite situation.

You have the optimal voir dire.

What does that look like?

Okay, here comes the next

controversial thing I'm going to say.

Jason Itkin disagrees with me. I'm

going to start by telling you a story.

Had a case down in Louisiana,

a person that was on drugs,

working in a company vehicle on

methamphetamine or something,

hits the back of a vehicle, kills

a little four-year-old girl. Okay?

We did a focus group in the case.

We knew we had a strong case.

And I said to the lawyer,

"You have unlimited time for

voir dire." Now in Louisiana,

the way it works is it's kind

of like in LA or in California,

you have jurors in the box, you

talk to those jurors in the box.

The ones that are for

cause, they get replaced.

Once you have everybody in

the box cleared for cause,

then you exercise your peremptory strikes.

Whoever is instruct has now become a

juror. They go off to the jury room,

they refill the box, they start it

over. They use rounds in Louisiana.

It's actually not a bad

system. My second best system,

my favorite is talk to the

whole group at once. Okay.

I said to the lawyer in this

case, "You have unlimited time.

How long do you think you ought to voir

dire for?" Lawyer said, "I don't know,

Robert. I was thinking about going

about an hour." I said, "You're close.

Take off 58 minutes." And he said to me,

"You want me to do a two-minute voir

dire? Two minutes." I said, "Well,

if I had my way, it would

be 30 seconds. But yeah,

I want you to do a two-minute voir

dire." So he says, "All right,

what do you want me to ask?" I said,

"I want you to ask this question.

Is there anybody sitting

there right now that says,

I just can't be a fair juror in a civil

case for whatever reason? I'm going to

start out favoring the defendant."

Is there anybody on the panel saying,

"I'm going to start out favoring the

defendant." I know you don't know anything

about the case. Is there anybody

sitting there favoring the defendant?

Nobody raised their hand. Lawyer

turned to the judge and said, "Judge,

we passed the panel." Okay?

Remember the movie, The Exorcist?

Remember that scene where that

little girl's head did a 360? Okay.

It's like this real. That's what

the defense lawyer's head did.

He did a 360 when this lawyer

sat down after about a 90-second

voir dire. He then spent

two hours doing voir dire.

The jury hated him. In the second round,

we went maybe five minutes because we

figured out where he got some of our

jurors off for cause, and we had to

do what's called, we inoculated them.

We told the jury what was coming and

tell them you haven't heard the evidence.

If the lawyer asks you about this,

if you can wait to hear the evidence,

tell them that. Okay. The point of the

story is by the time voir dire was over,

the jury hated the defense and we knew

it from their verdict because they came

back with a $440 million verdict for a

single plaintiff. So here's my point.

Just because you have unlimited time

doesn't mean you need to use it all.

What you want to do is ask yourself,

not how much time do I need?

How much time do I want the defense

to have? That's the question.

How much time do you want to give the

defense lawyers to do their voir dire?

And the less time you give them,

the less time they can rehabilitate the

jurors you're going to move for cause

on, the less time they can identify

their unfavorable jurors. So again,

I want y'all to rethink the

whole idea of jury selection.

And rather than trying to

get as much time as possible,

try to think about how can I do this

jury selection in 30 minutes or an hour?

Even if you're in a jurisdiction

that puts no limits on it,

try to limit your voir dire, voir

dire to 30 minutes or an hour.

You need an hour if it's either a high

profile case or you have hotly contested

liability facts. But if

your basic. And by the way,

here's the next point I want to

make to y'all. You got to decide,

am I picking a liability

jury or a damages jury?

Because the mistake a lot of lawyers

make is they try to do a little bit of

both. That's not the way you pick

a jury, brothers and sisters.

The way you do it is

you got to ask yourself,

am I trying to get a jury that's going

to say yes because the damages will just

naturally flow?

I'm literally waiting a jury selection,

I mean a verdict right now. And I

know that if the jury answers yes,

we're going to get a pretty good verdict.

So we picked a liability jury because

we knew damages would take care of

themselves. Ask yourself, am I

picking a liability or a damages jury?

If you're picking a liability jury,

jury selection takes a little longer.

If you're picking a damages

jury, cut down your voir dire.

Try to do it in 30

minutes, 45 minutes top.

If all you're trying to do is identify

the jurors that if supported by the

evidence and allowed by the law,

could not award money for things like

mental anguish, pain and suffering,

loss of companionship.

That example about the 32nd voir dire,

I saw Rahul's face contort and so forth.

It did occur to me that that's a good

way to put yourself out of a job.

I hear what you're saying, I think,

and I just want to make sure

I'm understanding this right,

is that when you have a really

powerful liability case,

and you've probably already studied

that using tools such as verdict hub

or focus groups that

you're about to get into,

you already know before you step your

foot in that courtroom that 80 or 90% of

people are with you.

So all you're doing by prolonging

voir dire is giving the other side an

opportunity to find sympathetic

jurors and you're better

off keeping it brief. Whereas if you

have a really hard liability case,

that's where you might need to take

30 minutes, an hour, a couple hours,

right? Is that what you're really

telling us here on that issue?

You can't base this on instinct. You've

got to base this on some empirical data.

You've got to do live focus groups. You've

got to do something like verdict up.

You've got to get data to

support what your instinct says.

We had that data and that's

why, because I'm telling you,

I've picked a thousand juries

in 40 years, a thousand.

This is the first time I've ever

done that and it worked like a champ.

It's a very rare case where you

can do it. I'm just telling you.

Yeah,

I just didn't want our listeners to all

go out and start doing 30-second jury

selections in every case.

That's not what you're saying.

Absolutely not. But when

you've done all the research,

when you have the empirical data,

when you know you've got a really

strong liability case and profound

damages,

you get a little four-year-old girl that

burns to death in the back of a car.

You don't need to do very long voir

dire or a child that gets crushed or an

elderly person that gets run over.

You don't need to do a whole lot

of voir dire in terms of damages.

It's all about the liability case.

And I'm advocating, make it short.

Because remember, here's the thing,

especially with these younger jurors,

these younger jurors are different.

Here's my next rule. Please,

if you've got a lot of

young jurors on your jury,

don't keep repeating the same stuff

over and over. It turns them off,

it pisses them off. Young

jurors get it the first time.

They are a lightning fast. They are used

to everything because of our phones,

because of social media. They do

everything in lightning speed.

So you don't have to keep repeating

stuff if you have young jurors.

So my point is you got to really do

things quickly. That means jury selection,

opening statement. It depends. You may

not be able to do direct real short,

but crosses, you need to try to make

your main points and cross and get out.

Closing argument. By the

way, in closing argument,

I always think you need to reserve

more time for rebuttal than you do the

opening of the closing. The defense

can't stand up and say anything.

So stop limiting your

rebuttal to like 10 minutes.

I would do half my time in the opening

part and then half for rebuttal for

closing. But my point is,

especially your younger jurors,

they want things done quickly.

Judges want things done quickly.

It's time to retrain yourself

to do things quickly.

Just to follow up on this, and

this may be a perfect segue also,

developing your voir dire and your

trial strategy requires a plan,

and that plan means working up and going

through focus groups and other types of

data.

So what's the Robert Hershorn plan

to establish a plan for actually

doing an effective voir dire on that case?

Again, you got to start with

the empirical data, right?

And then once you have

your empirical data,

you now know what's resonating

with people and what's not.

What's not resonating with people,

there's a part of your case that jurors

are struggling with that you see that

either from doing the VHS, the VerdictHub

Survey, or from doing a focus group.

That's where you need to focus your jury

selection on to identify who are the

people that are of that

ilk, of that mindset,

that they are going to struggle

with that piece of the case,

try to get them off for cause or

use a peremptory strike on them.

That's really the main thing.

When I was a baby lawyer,

we had all day to pick juries. We tried

our whole case in jury selection, right?

Those days are gone. And by the way,

do not let defense lawyers ever

use the word nuclear verdicts ever,

ever.

Never,

ever let them say the words nuclear

verdict to a jury in jury selection,

opening, closing, anywhere.

Okay, number one. Number two,

don't let defense lawyers get

into the facts of their case.

It'd be wrong for defense lawyers to

get in the facts of the case. So please,

make sure you stand up and object if

they're getting into the facts of the case

during the voir dire. The

thing you got to do now,

there's new tools out there

available to lawyers. Okay?

Let me use this as the segue into

Vertico. Let me go back to Cathy Bennett.

Cat's on her deathbed and

she says to me, "Robert,

you have these amazing tools now.

Figure out a way to give them to

lawyers that can't afford to hire you.

The cases don't justify it. They

just can't afford to have you,

but you got to figure

out a way to help them,

Robert. Can you make me that

promise?" And I said, "Cat,

I will make you that promise." And

when Cat passed away, I said to myself,

"I will always do pro bono cases," because

I couldn't think of any other way to

keep my promise to Cat.

Throughout my entire career,

I always did pro bono cases like all

lawyers do, all jury consultants do.

We should give back that way.

But then an opportunity

came to me with VerdictHub.

It was my way of fulfilling my

deathbed promise to Cat Bennett,

which is this is now a vehicle where

lawyers can get the benefit of kind

of the Robert Hershorn, I call it magic.

They get that magic by VerdictHub

because what we've done with Verdict,

let me tell you what it is.

It's venue-specific surveys that

are done by artificial intelligence.

I know a lot of lawyers are freaked out

about artificial intelligence. We've all

read about lawyers getting cited for

relying on artificial intelligence for

citations, and it turns

out they're fake citations.

Those are called hallucinations. I

get it. I was one of those people too.

I got it. That's why we spent

four months beta testing it.

It's why I said to my

partners, my reputation, my

name, my word is on the line.

We are not having a single hallucination,

any of the reports that

we do for verdict up.

So that's why we put a lot of time

and effort into making sure that there

weren't going to be those hallucinations.

What we do is we can do venue

specific surveys based on

artificial intelligence. They're

called agents. I hate the word agents.

We call them digital jurors.

Artificial intelligence not only can

tell you the demographics of your venue,

no matter where in the country

you're trying your case,

it can not only tell you demographics,

it can tell you the mindset of the kind

of people that get called for jury duty

because artificial intelligence is

reading all of everything that's in your

local newspaper. Whatever Facebook

or social media that's public,

artificial intelligence

can gather that all.

So we're able to figure out what the

mindset are of people in your particular

venue. And here's what you do.

You put together a case

overview for the plaintiff,

you do a case overview for the defense,

all the stuff you got to do

to get ready for mediation,

all the stuff you got to do

to get ready for a trial,

all the stuff you got to get

ready to do, a focus group,

plaintiff case overview, defense case

overview, a jury charge, a verdict form.

We run that through our system. You

will get a 20 plus page written report.

It will tell you the strengths of your

case, the weaknesses of your case.

It will rank your evidence. It will

give you somewhat of a jury profile.

But I'm telling you, don't rely on the

jury profile that much. It's a guide,

not a Bible, because this is a survey.

What VerdictHub does is a survey.

It surveys the equivalent to 500 people

in your venue, but they're digitally.

500 people in your venue is what it

does. The feedback you get is phenomenal,

by the way. And here's the thing,

because this is all a tribute to Cathy

Bennett. Not only do you get your survey,

you get three free reruns. You get

your results in three business days,

and it costs you $3,000.

So you get the equivalent to

2,000 digital jurors giving you

feedback on your case, right? If you do

your original survey and three reruns,

that's four runs of your case.

That's 2,000 digital jurors.

But the idea is you get

the three free reruns,

you get the results in three days, the

ideas, and it's $3,000. By the way,

that's a trilogy. Jurors learn in threes.

Father, son, Holy Ghost, red,

white and blue, good, the bad, the ugly.

Came They Saw They Conquered. ABC, CBS.

Where Ben's going on tonight, CNN.

Jurors learn in threes. Don't know why.

Don't give a shit why. I know

they do. Every case has a trilogy.

Have your trilogy. That's why we do

three free reruns, results in three days,

$3,000.

I just have to say we used VerdictHub in

my most recent case that went to trial.

I was extremely impressed with

the results that it produced.

We have been doing big data now

for the better part of five years.

In the past, we've always done the

classic human survey-based data.

In this case, because we wanted to

understand the costs and benefits or the

limitations of qualities of each,

we did the big data and

we did the Verdictub,

so we were able to compare them

head-to-head. I'll tell you my takeaways.

The feedback and theme

and case advice was more

detailed and more helpful from

the VerdictHub report than the big

data real live jury study. It was just,

it broke it down in ways that were more

actionable and more useful for us in

terms of framing and building our case.

So that's number one.

With respect to the juror profiles,

the big data was better for that because

we talked about this with your folks,

Robert, that we were trying

an emergency department case.

The VerdictHub suggested that we

should be picking emergency medicine

professionals, that they were

the best possible jurors for us.

We know from our experience that that's

untenable and we didn't rely on that.

You guys were forthcoming in

telling us that it's strength,

and so we didn't put a

lot of weight into that.

I have to say the jury profiling stuff

you get with the other data is itself not

that great either. So it's an

inexact science either way.

One thing I like about the VerdictHub is

one thing I've always worried about the

big data is number one,

it isn't venue specific.

And so when you're in a

small rural place like Maine,

in order to get enough

survey participants,

they're using people all over the

country and it's difficult to model the

attitudes of people in your local

community. So that's the difference. Also,

if you're using live humans,

there's the selection bias because most

people aren't sitting at their computers

waiting around to do surveys.

And the people that do may self-select

in ways that are not representative of

the broader jury pool anyway. And there's

no way around that with live humans.

That is a solution to that problem.

And then there's the problem of attention

because if you're presenting a complex

case, multi-page, the human survey

takers have to pay attention,

read it carefully and understand it.

And there's always a doubt in my mind

about people that are earning a hundred

bucks for an hour of their time.

Give a shit about your case

enough to read it carefully.

So the AI solves for

that. And then finally,

the cost is dramatically different.

A single live human survey is

in the range of 25 to $40,000

for 500 give or take jurors,

whereas the VerdictHub analysis gets

you that for $3,000 and then you get

multiple free repeats.

And a lot of times in my mind,

it's the iteration that's valuable

because you can see how changes produce

different results. And when you're

spending 25 to 40,000 for each survey,

it's very hard to iterate. I mean,

think about how many VerdictHub studies

you could do for the cost of a single

human survey. So there may still be

a role for the human-based surveys,

but I'm very convinced that this is

an extremely valuable tool that the

cost benefits weigh heavily in favor

of at least utilizing it as an adjunct,

even if you do intend to

continue using human surveys.

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Let me tell you a story. By the way,

here's Mark Lanier's take on VerdictHub.

Marc Lanier's only criticism of VerdictHub

is we don't charge enough money.

We're too low.

But I told y'all why we're too low because

I'm keeping a promise to Cap Bennett

because I want to bring it

to lawyers. Okay, by the way,

and before I tell the

story, one more thing.

If you are practicing in a small venue,

if your case is in a small venue,

you can't do a live focus group because

you run the risk of it getting back to

the other side, the media picking up

on it, the judge hearing about it,

the judge accusing you

of witness tampering.

There's all sorts of issues like that.

If you're trying cases in small venues,

VerdictHub using digital jurors.

By the way, digital jurors,

they don't have to make dinner.

Digital jurors,

they don't have to put their

kids to bed. Digital jurors,

they don't have to worry

about paying their bills.

That's the beauty of all this. You

have their attention the whole time.

All right, here's the

story I want to tell you.

We did a Verdtub in

Mark Lanier's Meta case.

And what we learned from the

VerdictHub, the VHS, we call it VHS,

Verdictub Survey.

What we learned from the VHS is that

we're going to have a difficult time in

terms of the case against

Instagram. Number one,

we knew that the case against YouTube

was going to be a lot tougher against

YouTube than it was going to be

against Meta. So we knew that going in,

and then we did a live focus group

and it reconfirmed that whole point.

But here's the second

thing, this is fascinating.

VerdictHub also gives you value.

It also tells you what the digital jurors,

what they think your case is worth. So

you learn about liability, apportionment,

if that's relevant, but damages too.

What VHS predicted the damages

to be in the social media case,

the case we did in LA with

Rahul and Mark Lanier,

it predicted an average

verdict of $3.6 million and the

actual jury verdict was $3 million. Now,

even a broken clock is right

twice a day. I got that.

Maybe we just got lucky or else

maybe we were onto something.

The other thing I could tell

you from our live focus group,

one of our three groups in the

live focus group awarded $3 million

in damages. As I remember,

you didn't do an ask, right?

You didn't give the jury a number,

which is exactly what Mark Lanier did.

Mark Lanier did not give a number either.

VHS came in the range. The live focus

group came in the range of the actual

jury. These are really good tools.

And I'm telling you, lawyers,

you need to do it for your client.

It's going to come a point in time.

By the way, defense

firms are doing it too.

I'm getting calls from defense lawyers

all the time trying to hire us and we

tell them, and by the way, this is the

other thing your audience needs to know.

VerdictHub is not available to

defendants. We don't help big law.

We don't help corporations. This

is for plaintiff's lawyers only.

As far as I'm concerned,

you're doing the work of the Lord

and I want to be by your side and do

everything I can to help you.

So that's why we're not

offering corporations and

that's why we're not offering

big law.

I wanted because you mentioned the outcome

in the case we did where we had the

live juror big data.

What I was saying is that in the case

we did where we compared the big data

study with the actual

jurors versus verdict hub,

both on win rate and values,

the numbers came out within

one to 2% of one another.

And it was remarkable to me because they

were both completely independent of one

another. So whatever the methodology is,

if you assume that live jurors may be the

gold standard for things like win rate

or value, the verdict hub was within,

like I said, one to 2% of that.

So that was pretty good. The one

thing I really wanted to have you on,

the thing that worries me or that I

can't get my mind around is I don't

understand how the fucking thing works.

We don't want your algorithm or

proprietary thing, but how the hell

is this possible to do this? I mean,

how can we have confidence in it

because it's such a black box?

You know what I mean? It's not

an issue of hallucinations.

It's just what's the methodology

that allows these so-called AI

jurors to act like humans and

evaluate a complex case and then

give you feedback? Can you just

talk about that for a second?

The answer's simple. Artificial

intelligence is really smart.

That's why there's big data. That's

what they do. We do smart data.

Artificial intelligence has

access to all this information.

If we had access to all this information,

we could do it too, but we don't.

Think about it. They have access

to everything in the newspaper,

everything on the radio,

everything on the TV,

everything that's in a public

profile, all of social media.

Artificial intelligence can

analyze all that data in a snap.

And so what we've done is our patent

pending program is a combination of

multiple LLMs, large language

models, artificial intelligence.

You've heard of Perplexa, you've

heard of GPT, you've heard of.

They're all out there.

We're a combination of a number of

them because all of them have different

strengths. Some of them are

better at writing reports.

Some of them are better at analyzing

videos. So what we did is we took a

combination and that's how we

created our program for VHS.

If you can just wrap your mind around

the idea that there's all this data

out there, paralegals have to

take a file and they have to,

a lawyer gives them an assignment and

they have to go through all this data to

get the lawyer the piece of

information that they need.

It might take a paralegal a week to do it.

Artificial intelligence can do

it in 10 minutes, five seconds,

depending on how much

data. That's my point.

It has the ability to gather all

this data and then analyze it.

So can I just say, you have

a juror, a particular juror,

the AI knows that this juror

is an emergency medicine nurse.

That's what the juror does for a living.

How does it knows that 5%

of the population in that

county work as emergency

medicine nurses?

So 5% of the pool should be emergency

medicine nurses and then it's figuring

out, well,

an emergency medicine nurse tends to

read these kind of publications or have

these kind of points of view, but

some do, some don't. So I mean,

where did this person grow up?

Where did they go to high school?

I'm trying to understand how that,

what's the biography of a

particular one of these 500 jurors?

Is there a biography of who they are

as a person and their background and

experience,

or is it just all of that's shortcutted

to this is how they process and respond

to information?

You are getting artificial

intelligence agents, 500 agents.

We call them digital jurors

because they're not real.

500 separate digital agents

with various backgrounds

in your community that are looking at it.

And what artificial intelligence does

is it just uses math and uses knowledge

to kind of figure out who are the people

that are most likely going to show up

as in jury duty for this particular

case. What no survey does,

it can't take challenges for

cause into consideration,

and it doesn't take peremptory

striking into consideration.

You're just getting a feel for what

the community think, the community,

the jury pool community thinks about

your case without consideration of

cause, peremptory striking,

or jury deliberation.

That's why I say you don't want to put

a whole lot of stock in the jury profile

because that is all depending on the

individuals that show up in the courtroom.

You use it as a guideline, not as a

Bible. Like on your particular case,

Ben,

I can understand why artificial

intelligence thinks people

that work in medicine

might be good jurors in a medicine case.

I get why it thinks that because that's

who would have the most knowledge.

Artificial intelligence doesn't have

the training of being in the courtroom,

the wisdom of being in the courtroom,

because we all know that it

takes a remarkable person

who's in the medical field

to put them on a jury in a

medical malpractice case.

They've got to be really the right juror

because they're either going to be your

best juror or your worst juror.

There's no doubt about it.

So you got to choose cautiously, and

that's the art of the jury selection. See,

artificial intelligence isn't going to

replace me anytime soon. It's coming.

The day's going to come when they can

even do what I do. That's not coming right

now. But that's why the art of being in

the courtroom, the lawyer's instincts,

the lawyer's intuition, the

lawyer's eyes, the lawyer's ears,

all that matters in jury

selection. VerdictHub can't do it.

Big data can't do it. We

can't do any of that piece.

We can just kind of give you

starting points, not ending points.

A couple of thoughts. One thing,

VerdictHub, use it the right way though,

like Robert's even saying, it's data.

Data is something where there's

parts of it that'll be helpful.

There's parts of it that won't be helpful,

and you just got to use your institutional

knowledge and then pressure test it

with a live focus group in other

ways. I'll just give an example.

This is an example that I'm going to

explain as to what my thoughts are as to

how it evolves.

So I did big data on my jujitsu trial

down in San Diego with John Campbell,

and I told Robert about

this. And John said,

"You should ask for around 70 million

and you'll get a verdict around 48 to $50

million." And that's where it came out.

When Robert was reaching out to our firm,

he said, "Try VerdictHub." And I said,

"I'm going to give VerdictHub the exact

same data I gave John Campbell. Let's

run it through VerdictHub." And it said,

if you're taking it just as a

conclusion number and saying, "Hey,

you're going to get 25,

you should ask for 30-something million

on this case." At face value, you go,

"Okay, well, that's not accurate.

I should have gotten 50 on this because

I did." But that's not the point.

Point is it's learning. And this

whole process continues to learn.

That was years ago. Every

day, if you're using the LLM,

getting better and better and

better and better and better.

And now you got Ben with his one to

2% deviation on it. Fantastic to hear.

I got an idea for you, Robert. You

should do a new thing, not VHS,

V-H-S-J, VerdictHub Shadow Jury,

and then run all of the transcripts

of both voir dire and each day.

And there may be a way that VerdictHub

shadow jury can be used by lawyers to see

how their case is going as another data

point on a daily basis without too much

sweat and to continue to train your model

on juror profiles and then how these

jurors are going to react.

We actually have that in the works.

We've actually done it a couple of times.

It's an expensive product. A live shadow

jury, when we do a live shadow jury,

we're in the courtroom. When the actual

jury leaves, the shadow jurors leave.

Lawyers get feedback over the

lunch hour at night every night.

It's a really expensive proposition.

It's like something along the lines

of about $10,000 per day for every day

of trial that you do it. Live shadow

jurors, Mark calls them gallery jurors.

We call them shadow jurors. They're

really valuable, really expensive.

We do that for VerdictHub also. We're

still in the beta testing process of that,

but it's like half the cost.

It's like $5,000 a day.

And I limited it to a two-page report

because lawyers in trial don't have any

more time than a little bit to read a one

or two-page report so that we limit it

two pages. We hit just the highlights.

But yeah, we are doing that role.

We're going to be doing focus

groups. That's kind of the model.

That's what's coming up.

The ultimate goal is to get to the

point where our digital jurors are

deliberating with each other in English

and the lawyers are watching it on the

screen in their office.

So the lawyers in their office

would make a presentation,

an opening statement for the

plaintiff and the defense,

and we'd charge the digital jurors and

we'd put them into a room and they would

deliberate. That's coming. We're

not there yet. That's down the road,

but that's on the horizon.

We really appreciate your joining us.

If folks are interested in finding

you and VerdictHub in particular,

can you tell them how to do so?

VerdictHub, one word. Jury verdicthub.ai

is the website. And please,

if we have any questions, if we can

ever help you, we're here to help you.

We're really appreciative

of everything y'all do.

I know the stress it takes on lawyers.

I know it takes the stress on your family,

and I know how hard it is to

do your job and do it well.

All of us are here to help you. If

we could do anything to help you,

please don't hesitate to reach out

and we'll help you any way we can.

Thank you, Robert. You're

doing amazing work,

and thank you for being on the

podcast. This was a lot of fun.

Thanks for having me, y'all. It's

been my honor to be with y'all.

I love you guys. I love what you

do. And I'm warning both of you.

Rahul already knows this. Next

time I see both of you guys,

you're getting a big hug from me.

I'm just warning you. Thanks, y'all.

Looking forward to it.

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