Emerging Litigation Podcast

Jury Selection in the Age of Conspiracy Theories and Distrust with Tara Trask

• Tom Hagy • Season 1 • Episode 81

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Tom Hagy interviews jury and trial expert Tara Trask about picking juries in an age of misinformation, general distrust, tribalism, unleashed social media warriors, flamers, and propagandists, and unorthodox legal strategies that seem to unfold on a daily basis. All of these conditions began to accelerate in the lead-up to the 2016 presidential election in which Donald Trump prevailed over Hillary Clinton, continued to heat up in Trump's race against then-candidate Joe Biden, culminated in the Jan. 6 attack on the Capital, and continues to blot out the sun amid civil and criminal actions against the former president and some of his supporters and colleagues as the 2024 election roars at us like a freight train.  In this episode we ask: How does what some have called a Cold Civil War affect our ability to listen and decide objectively when presented with arguments and evidence in court? How much increased bias, skepticism, and hostility for institutions -- from courts to corporations to witnesses -- do people carry into the jury box? 

Tara Trask is a nationally recognized author and lecturer on juror psychology and other trial science topics. As President of Trask Consulting, a boutique litigation strategy, jury research and trial consulting firm with offices in San Francisco, Houston and New York, Tara focuses on civil litigation with an emphasis on complex commercial litigation, including intellectual property, antitrust, securities, breach of contract, and fraud. She has assisted plaintiffs and defendants in products liability, insurance, and oil and gas matters, and has extensive experience assisting institutions and individuals in matters involving regulatory enforcement and white-collar defense.

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Tom Hagy:

Welcome to the emerging litigation podcast. This is a group project driven by HB litigation, now part of critical legal content, and vLex companies Fastcase and Law Street Media. I'm your host, Tom Hagy, long-time litigation news editor and publisher, and current litigation enthusiast who wish to reach me, please check the appropriate links in the show notes. This podcast is also a companion to the Journal of emerging issues and litigation, for which I serve as editor in chief, published by fastcase. full court press. Now, here's today's episode. If you like what you hear, please give us a rating. I don't think it's a partisan point of view. To say that the American public has been exposed to some surprising legal tactics on the national stage thanks to the civil and criminal actions brought against former President Donald Trump not just the actions but his defense of those actions both in and out of the courtroom. I think Americans are hearing a lot more about court room tactics and strategies more so than just from when Law and Order was at its peak on NBC. The public has also been exposed, famously or infamously to information wars where it's not easy to know what's real anymore, or who you can trust. And this is only going to get harder with the proliferation of AI when cows will be telling you what to think. One person's insurrection is another person's Civil Protest the declining popularity of the Supreme Court. That's the most telling benchmark. According to MARQUETTE LAW SCHOOL POLL of adults say that 60% disapprove of the Supreme Court. Separate poll not run by MARQUETTE LAW SCHOOL says that 50% of people hate anchovies. So anchovies are polling better than the Supreme Court. Faith and the outcomes of elections. It's another elephant in the room, or is he? Trust in the media is another. Corporations, which is a perennial punching bag for the suspicious are probably trusted by fewer people than ever. I can make that claim but you may not trust me to say it. What used to be a reliable source of scientific information someone like the US Surgeon General, has now met with a side eye by a good portion of the population. One thing that is on the rise sadly, and tragically are serious threats against federal judges and prosecutors. A serious threat is one that triggers an investigation by the US Marshal Service. Reuters looked into their statistics and they said that the number of serious threats rose to 457 and fiscal year 2023. serious threats against federal prosecutors also more than doubled from 68 and 2021 255, and 2023. This all started around the time of the 2020 presidential election. Then who are we? So are today's liberals and conservatives? Do we share similar views with our counterparts from 10 or 20 years ago? Wouldn't say we don't. What does jurors consumption of and participation in social media mean? When it comes to assessing their worldview? It raises the question which person is more real, the one sitting in front of you or the one flaming you on x. And if you will allow it. I have to have some fun. Like to insert one of my favorite quotes I came across on the formerly known as Twitter account of writer Maura Quint, who wrote when I was a child, I spoke as a child, I understood as a child, I thought as a child. But when I became a man, I did those things online. And how's jury selection look through the so called Overton window, a snapshot in time of what's considered politically acceptable compared to just a few years ago? The Overton window seems to be on wheels. But I want to get to our guest and what impact all of this has and by this, I mean unorthodox legal strategies. Informational uncertainty, tribalism, distrust of institutions, the popularity of conspiracy theories, what impact might all this be having on juries and the attorneys and experts who pick them? Tara Trask is a highly regarded jury and trial consultant with more than three decades experience primarily on the civil litigation side but with some experience in criminal matters, her bread and butter and by the way fewer people trust bread and butter. And with good reason her bread and butter is that's not a fact. By the way. Her bread and butter is intellectual property litigation. That said she was involved in the Dominion voting systems case against Fox News, which didn't go to trial, but it settled big. But I think that gives you some idea of the respect Tara has in the field and the types of high stakes engagements she attracts. And here's a bonus she shared with shared with me. And now I'm sharing with you, recordings from jurors who participated in an actual mock jury. That's a, that's an oxymoron, who participated in a mock jury to underscore her point of how jurors are influenced by what's going on in the world, particularly in the legal and political landscape. So here she is Tara Trask of Trask consulting, I hope you enjoy it. So the first thing we're going to address is conspiracy theories and conspiracy theories have been around as long as they're as they're been actual conspiracies, which is say they've been around forever. Americans have always been prone to them, you know, why is there fluoride in the water? Why did we land on the moon, etc. But sometimes it gets what gets out of hand is when everything is a conspiracy, and you trust only your, your sources, and everything else is some some form of, of conspiracy. So how does this impact your job in assessing an individual's integrity and fitness to sit on a jury?

Tara Trask:

Yeah, well, we've seen We've definitely, I think I can speak for most consultants, when I'd say that we've seen a resurgence of folks in the venire across the country, who are infusing their own views on things. I mean, I'm sure we've all heard the the the term, do your own research. And while obviously doing your own research, on its face, sounds like a good a good idea. And I agree generally with that concept. And at the same time, even that phrase, do your own research has taken on an interesting connotation, in my view. Because I do believe that a lot of times when you hear that from folks, what it really means is, you can't trust any mainstream sources of information. And you need to do your own research, which means like, go out on YouTube, or, I mean, who knows, right? And find all kinds of, you know, information that is potentially not vetted all that well. And I think we've seen recently that, for example, the Russian government is putting up websites that look like news organizations to pump Russian propaganda into the bloodstream of Americans. So well, you know, so we see some of that, but I think from, from my perspective, some of what's been really interesting to see, and I'm not exactly sure what, what year, it was, it was probably around 2017. And I think we have a clip here that we can show in a minute. But I remember doing a mock on a case where we had to. It was a it was a patent case, we had it was a competitor case. So it was not big, was not big, well known companies, it was to relatively established, you know, mid size companies, and there had been a group of engineers that have gone from one to the other. But that was not really a fact in the case. And it wasn't really a fact that we were testing in the mock. We were not testing willfulness in the mock. So there was no discussion in the presentations about whether or not the defendant company knew that the plaintiff company had patents just wasn't part of our presentations. It wasn't part of the discussion. It wasn't part of the case. Nonetheless, for whatever reason, these jurors just glommed on to that. They felt like it was just so ridiculous that we didn't talk about that, that it should have been something we talked about, and they just knew that these sophisticated engineers would absolutely have known, the defense would have absolutely known about this plaintiff's patent. Again, irrelevant to the case, but they glommed on to it. And I just remember thinking, this is just so wild, like I had not seen it to that extent. And I think we do have a clip here where we can show a little bit of the exchange. And then what was fascinating, and I actually didn't remember this until we went back and looked at the clip. But at the end of the clip, the juror, there's a juror who actually points to the recent presidential election, which would have been the 2016 election, to point to that as a reason as to sort of why people need to be skeptical of what they're hearing. We had told them at the outset it was we tell every mock jury We say you can trust what the attorneys are telling you what they are telling you is couched in factual information. They're not going to be lying to you. But they just were very, very uncomfortable and wanted to kind of invent all these other reasons for things and facts that just weren't part of the record that they had heard. And at the time, I remember very vividly thinking, Gosh, what is this going to mean, for us going forward?

Tom Hagy:

Here, the first juror says, If what you're presenting is not factual, then there's no reason for you to present it. Anything.

Juror 1:

That's that's like not in the beginning. beneficial to your case, if it's not facts, if it's not right in front of my face, if it's not, okay. This is where this is why we're right. This is why they're wrong, then, I mean, there's really no need for it to be there just takes a lot

Tom Hagy:

of time. Then another juror adds on that Tara's client obviously knew there was already an existing patent, even though they were specifically told they did not know that.

Juror 2:

And when you talk about the doctrine of equivalency went into, you need to take out the part where you say we didn't know about the patent until our products were already out there. And we got sued in 1999.

Tom Hagy:

That juror is pretty emphatic that they should not even bother making that argument. And she like almost all the other jurors leave. There's no way they didn't know there was already a patent. And she's asked why she thinks that.

Juror 2:

It just it brings down into people's minds, because they're like, wait a minute, he's not know about that. You got to know about that. Somebody knew about that, obviously, but

Tom Hagy:

obviously somebody knew about it, even though she was specifically told they did not know about it.

Juror 2:

You can't like Ignorance isn't an excuse.

Tom Hagy:

To the truth is we really didn't. And that's the client saying, the truth is we really did not know about the patent. A point that Tara underscores... is it's so fascinating to me that you guys without hearing anything. Almost everybody in here jumped to the conclusion and defense knew. And in a moment of self examination, and in the context of everything going on in the political stage, one juror took the opportunity to say why they may not believe what they're being told.

Juror 3:

Did you listen to the presidential election?[Laughter]

Tom Hagy:

Someone laughed as if to say, where did that come from? And that is kind of the point.

Juror 3:

I mean, in terms of truth in how many people lied. I mean, I think I think we've got it in our guts. Sometimes it we're almost now indoctrinated to just not believe a lot of stuff. And that's a burden that you have. I mean, we were lied to an awful lot.

Tom Hagy:

We were lied to an awful lot. He says, it's almost like we're now indoctrinated not to believe what we're being told. And that's the burden the trial lawyers have.

Tara Trask:

You hear me come into the clip and say, I'm just so fascinated, because every single one of you just really glommed on to this fact that it was not a fact in the case, but you infused it into the case, because you made determinations about whose defense company was and what they would or wouldn't know, even though we told you repeatedly that it didn't matter. And then I think that the juror pointing out at the very end that in his mind, even that is a direct result of what he viewed as a bunch of lies about the election. So I just I just from my perspective, anyway, this is just a bit of a benchmark in something that we've seen, really coming in to the to the jury pool, which, as you can imagine, in many ways, makes it very challenging for us to help lawyers, figure out how they're going to craft the narratives for their cases, what facts matter what facts don't. I mean, we've long known that if you present an opening statement, for example, to a jury, and there are pieces of the story that raise questions in the minds of multiple jurors, and you have not provided some answer to those questions in your narrative. They will fill that narrative in, often to your detriment. That's been true since juries, you know, since I've been doing this for the last 30 years. But I do think that we've still seen a shift in how much they will do that. And to what extent that is the result of our recent political shifts. Yeah,

Tom Hagy:

it's almost like, you know, if we didn't know before, we shouldn't know now. There's a lot of stuff going on out there. And I'm gonna look for it all over the place.

Tara Trask:

It's something I love about the work that I do. And that is that, you know, jurors are at the end of the day citizens like you could everything we say about yours, you could just exchange for the word citizen. That's what they are. I often find myself have disappointed when I feel that folks, I've heard people say like, oh, you know, we don't have a voice, like, we don't have a voice in our government, we don't get to participate. And I'm like, Well, what happened when you got called for jury duty? Well, that's just so annoying. And I mean, and I'm like, Yeah, that's called participating in your government, just in case you didn't realize that's a

Tom Hagy:

big deal. It is. In defense of conspiracy theorists, it doesn't help that, in fact, there are conspiracies in the world. And and we do find out later, the government did lie to us. And, and for better, or for worse, you know, it's like, no, there's no aliens know this. And lately, there's like, yeah, grey aliens. It's just doesn't. Yeah, is there an offense? You know, sometimes there is something going on? I think the dangerous part is when you decide only one person or one group is going to tell you what's real.

Tara Trask:

I think that that's dangerous. I mean, frankly, you know, not to put too fine a point on it. But I just think it's true. If you are living your life, and there is one supreme leader who can do no wrong with whom you would go to the ends of the earth, regardless of what that person did. You're in a cult. And but to your larger point about conspiracy theories in general, they've always existed as well. And many of them have some kernels of truth, which to your point is also what makes them challenging. I think, what's become a real problem and something we see. And something we we frankly, like, look for to try to help us understand who individuals are when we're picking juries, I definitely want to know, Are you a person who views the world with some shades of grey? Or are you a person who is only it's just like, everything's black and white? Everything's one way or the other way? Because that's the kind of thinking that tends to lead to conspiracy theories, right? I, I wouldn't try to defend everything that mainstream media has ever done. Anybody who did, God knows he's got problems, right. Like, clearly we have issues in our media in our media. But does that mean we have to throw out the baby with the bathwater, right? Does that mean that you just can't listen to anything? And that's kind of where as a person who researchers, jurors, and therefore sort of citizens and makes determinations about them and how they're going to problem solve disputes. I just want to know, can you? Can you have heard a piece of media, let's say and recognize that like, oh, okay, maybe that one or two things were overly emphasized. Maybe there was something in there that just didn't make sense at all. But does that mean that the entirety of that information or even more importantly, that that entire news organization should just be thrown out? We got to use our brains? I

Tom Hagy:

remember when somebody asked Frank Figliuzzi, who was I forget what his role was counterintelligence? Maybe for the FBI. But anyways, on NBC a lot. And you know, they were the question came around, you know, is the FBI corrupt? He said, his answer was basically, the FBI is made of people. So, exactly. And it's the same with media. It's not, it's not, it's not all one and government, you know, it's people. So coming back to our next theme is around what the what it means to be a conservative or liberal in the digital age. And to be a conservative in 2024 is very different from what a conservative was in 1964 1984. Based on some factors from the last century, some of those folks would be considered wild eyed liberals today. And and I think, I think it's fair to say some liberals back then would be disappointed in liberals today. So it's like, it's also shifting definitions. Now you put that into. Now, there's kind of two worlds there's the world we walk around in. In those the world we enter through the portals of our mobile phones and computers and things. And then we can't, you know, you raise the point that, you know, there's a digital firehose of broadcast media, too. So how does this digital age this duality play out? And in trial juries, you know, you're one person in the real world, but you're, you're a different person with different maybe you'll conduct yourself differently in the digital world?

Tara Trask:

Well, there's there's two things that this raises for me this this notion. The first one is that I don't think it's a stretch for me to say this. And I think I can sort of speak for the entire world of trial consulting in that in the last last few years. Any jury consultant is going to go into a case whether it's criminal or civil, and they're going to have an idea of a juror profile and It's a misnomer, of course, to say, I have to tell people this all the time, if we don't get to pick the jurors, we want. That's not how the process works. What we do have some control over is who do we exclude? Who can we work to get struck for cause, but in terms of picking people that are on the panel, we can love juror number three, but if are, but if the opposing counsel hates juror number three, they're going to strike them, and we had no control over that. That's just the mechanics of it. In the past, or at least for the first, I don't know, you know, 80% of my career, when I had somebody that came in, where I could tell from their job, the way they dressed, maybe some of the things that they you know, said on their questionnaire, maybe they were the, maybe they were the secretary of their local Rotary Club, maybe they were, you know, worked for a big corporation and had a VP title. Maybe they listed that they were a leader in their church or you know, that whatever, various markers, and I could say the same for some more, quote, unquote, liberal type of person. Either way, I would make some determination about kind of where that person fell in. Most of the time, I wasn't given the specifics of Democrat or Republican, but I could kind of basically discern where they sort of fell in the political spectrum. And more importantly, or most of my career, I knew what that told me about how they would problem solve a personal injury case, a patent case, a contract dispute, or at least it was one of the markers I would look at. That is what has been completely topsy turvy, because what a quote, unquote conservative person is going to do with a personal injury case, might be completely different than what somebody with that same political persuasion would have done, you know, a few years ago. And I think our entire field has been struggling to get a handle on this. And I think what it really ties most directly to is the shift towards populism in the Republican Party and in the Republican electorate. Not entirely, but I think that's the biggest shift we've seen, largely. And we've been working to just try to continue to collect data and do what we can to figure out what we need to know about our prospective jurors when they come into any, any into any jury selection. But the other issue that you've, you've touched on, which is the digital versus IRL, right? And I think we all even all us old gen xers, right? I'm laughing with my, some of my, you know, it's funny, but I think we're this generation that spent a good chunk of our lives with no digital media. And but we've also had to transition to to understanding the digital world. And it's it's very interesting to see how how blurred they become. And by digital world, I don't just mean just the the internet, it's also, you know, broadcast television, as we've talked about, but I can tell when a juror has come in for a jury selection. And that person is spending an inordinate amount of time either online, in political spaces, or is maybe an older person who's sitting at home, maybe they were tired. And they probably had maybe they have Fox News on all day long. But you say the same thing about MSNBC, Truly, truly, really online folks. It comes out very quickly. I can hear it in their answers. And I can see it in their questionnaires. They will do things like at the end of a questionnaire, is there anything else the court needs to know about? You know, it's just meant to be this like, catch all question. And instead, you'll get like this lengthy essay, oh, my God, you didn't like like, you need to know that 2020 election was stolen, and I no longer trust the United States government. And it'll be you know, there would they're down to like writing really small. They just those folks are really observable in the real world. I will say this, most people fall into the category of okay, I'm here for jury selection. And I know this is a case and I want to learn about it. I might be a little intimidated or whatever, because I'm in a, you know, fancy courtroom, and that's not my normal day. And that's generally most people, right. But I but there is usually I would say I had to guess I'd say you know, maybe 5% of people who I can really tell from what they say. Sure. Anger. There's also a lot of anger that comes up. Yeah, they're

Tom Hagy:

Yeah, there're gonna be catchphrases and things like that. Facts at their fingertips.

Tara Trask:

Yeah. Absolutely. Little talking points. A lot of times, you know, you look at people just feel like "oh, oh, honey, you know, go outside."

Tom Hagy:

Take a breath. You know, you can say you know, you can if you can answer them in real time, you might say we just want to know if you had any food allergies. Just tying tying the two things together so far around conspiracy theories and conservative and liberal. So underlying any good conspiracy theory, as we discussed in that first section is sowing distrust in institutions, like courts, the media, we mentioned government agencies and even science. I mean, Dr. Fauci, God bless him. He's probably still got security. Right. Right. Right. So the same is true for extremists on the political spectrum conservative to liberal or, and I don't think those terms. I don't think they go adequately far enough on each side of the spectrum, because but that's my own. My own view is a mere conservative is not sometimes what folks are. And I guess the same from liberal but even the trustworthiness of a judge these days is, you know, what party? Did they in a state level? What party did they run under? And the federal level? Now you didn't used to say, Oh, it was a Bush appointee, or was an Obama appointee. You never said those things. And now, it's always it's always part of the new story. How do you address that? Where institutions no longer carry the weight with everybody? No,

Tara Trask:

it's a great question. And it's one that I find really, really disheartening. You know, for years, you know, my look, Supreme Court was turning out to see all kinds of decisions I didn't really care for. But I've always defended the institution, because I felt like it was important. And just because I didn't agree with a particular decision didn't mean that it wasn't the decision that the Court handed down, and whatever the composition of the court was in that, at that time, that's what it was. And I think, I just think that's an important part of our process. An important part of our process is recognizing that you're not going to like every outcome. And that's, that's just part of being in a democracy. We live in a democracy, like not everything is gonna go your way. But it's been really disheartening to see what's happened to the institution of the courts, in particular, the Supreme Court has not done itself any favors. But more importantly, I will say this, you are correct it, I just can't stand it when every single time, it's reported that a judge has made a decision on any case, it's like we hear who appointed that judge, like it's just infusing partisan politics into the last, the last of our three branches. That we're trying to hang on to, you know, some level of respect for the institution being nonpartisan. I will say, I don't think that that necessarily plays down at the jury level. Like, I'm happy to report that I'm happy to report that, generally speaking, I do not think that jurors come in and want to know, okay, who appointed this judge, of the court that I'm sitting in? I could be wrong about that. But it's just not something I've heard. And so I view that as a positive. I also think, frankly, that juries jury service, and folks being called for jury service is a real opportunity for everyday Americans to interact with an important institution, which is our courts, and to play their part as citizens, which is what jurors are. And to see it work, the court system, for a lot of reasons, it could very well be, you know, some of our saving grace in trying to hang on to our democracy and our constitutional republic in quality. The one I don't, I'm good with the quality the one because, you know, I go into courts all the time, different ones, I listened to judges in state court and in federal court, and one of the things a lot of times that they do is when the jury comes in, you can see the jury is always a little bit nervous. They don't, you know, they want to be somewhere else. They have things to do in their lives. It's all understandable. And they come in and the court kind of sets everybody down, and then usually does like this little brief introduction. Hi, I'm Judge so and so. Welcome. Thank you for taking time out of your busy lives to come down here and answer to the call jury service. And then most most judges give a little brief overview of why we have a jury system why their service is important. And I watch jurors all the time. They're sitting there, they're they're pissed at first they come in, they're kind of cranky, they don't want to be there. They're shuffling around, and they're exasperated, they're just thinking when can I get out of here, and if the judge does a decent job of reminding why we have a jury system where it came from maybe a little bit of history, I know several judges that do a what I think is a beautiful job like a really like a tear jerking a tear jerking job as to why we have a jury system and how important it is to our system. I watched yours just settle down, they settled down and they think, Oh, right. I forgot. Let's say that's 11th grade government stuff. Right? Right. Right. Right, right. That's why we have all this, then they usually proceed to take their job very seriously. And it's watching our government and watching our system work. Now, let me just throw in a really big caveat. I do a lot of like, civil work that is, you know, kind of highbrow, frankly, with like a lot of, you know, very sophisticated lawyers, I do not want to leave the impression that our justice system works perfectly by any stretch. I also do a lot of pro bono work. I see a lot of people had have a terrible interaction with our judicial system. I see that I know that that happens in the world I generally work in which is largely federal court, it works extremely well. And I see people take it very seriously. I also know that there are serious problems with it.

Tom Hagy:

It's got its flaws. I mean, and what, again, it's people. Yes. Moving on to the next one, let's talk about picking juries. And, you know, in a case where the former president is the defendant these days, the word unprecedented, precedes just about more stories than ever, but picking juries and civil in civil and criminal cases against the recent occupant of the White House, either for a role in an insurrection or hoarding state secrets or slandering a woman who accused him of sexual assault. We're also seeing cases unfold against those in the so called Magga movement who sought to overturn the last election or obstruct justice, you were involved in one very high profile case, it didn't didn't go to trial, but it came really close sounds like brought against Fox News by Dominion voting services, which charged the network with broadcasting false claims. So what are your thoughts? You know, we've got a jury, as you said, a jury is being picked later this month. What are your thoughts on picking a jury for these kinds of things? What are the challenges?

Tara Trask:

There's immense challenges, obviously, because people have very strong opinions about these issues. Of course, I do think that it is worth taking a pause. And you're right, unprecedented seems to be something we cross the threshold of all the time these days. This is a big one, you know, we've never had a former president criminally prosecuted before. And this is the stormy Daniels hush money case, which I think it's important for people to understand that. That case is not just about, you know, paying a porn star, but more specifically, paying a pornstar for silence in the run up to an election. Right. That's the key part here. So it could have been paying hush money for anything that the candidate did not want the voters to know about before they voted. That's really the crux of this case. It's easy to get sidetracked when you hear a porn star. Yeah, obviously, it's in New York, I know that the Trump folks are probably unhappy about that. And understandably so, frankly, just because it's going to be a tougher go for them to find an impartial jury. I know, I feel strongly that I can unequivocally state that for most people in my field, we really do want a fair and impartial jury. I'm not trying to stack a jury with people that are great for my side. I couldn't do that if I wanted to. So it's it's just a complete misunderstanding of how jury selection works. What we do want to do, and what my field endeavors to do is to ensure that we do not have biased folks who are going to be unfair, of course, I'm focused on my client. But at the end of the day, we want a fair and impartial jury. That's what we're out to do. I feel pretty confident in saying I'm not entirely certain that's what the Trump team wants to do. But I do think it's what the DEA in this case wants to do. They're not trying to stack this jury with people who hate Donald Trump. That's just not what they're trying to do. They are trying to find people who can listen to the facts, listen to the evidence, listen to the judge's instructions, and make a determination based on just those things. That's what that prosecutor is going to be looking for. It's a little harder for me to speak to what what Trump's team is going to be trying to do, because I think they have a tougher job in a lot lot of ways, but at the end of the day, you know, knowing who Donald Trump is knowing, having read about the case, or knowing like, none of those things are disqualifying. What's disqualifying is if your your views and opinions on any of those issues rise to a level that would that would create a situation in which you would have a hard time setting those things aside, and just judging the case on the facts and the evidence that you hear in the courtroom. So

Tom Hagy:

along those lines, I mean, I've heard concerns that some people might want to get on jury so they can influence influence the outcome, in line with their political, or worldview. Is that Is that Is that a real concern? or Yes? Is it a conspiracy theory?

Tara Trask:

Oh, no, it's that's a real concern. That's a concern. In any high profile case, I'm not talking about it from like a, the Runaway Jury level where you know, somebody's like moving to a city, and trying to get into a particular jury pool, I'm just talking about somebody who gets a jury summons and realizes, wow, this jury summons might be for this big for hope, high profile case. And I have views on that. And I'm gonna just say whatever or not say, whatever. So I can, so I can get on the jury. So I can have an agenda, because I have an agenda. And I'm going to try to push it one way or another, that is always a risk in a high profile case, always. And so the consultants who are going to be working on this trial are going to be both sides are going to be watching for that. They're going to be watching for people who are sort of just where maybe their words and what they're saying doesn't match other information that they have. And just to be clear here, I am not sure I know that this judge in this upcoming trial has limited, who is going to even get the names of the prospective jurors, there's some concern about intimidation and safety and that kind of thing, given the history of other cases. But I do think that the trial teams are going to have the names. I also don't know whether the court has limited whether the two sides are going to be allowed to do online investigation. But as an example, if the if they are allowed to do that, and they can then kind of go out and kind of look to see what the prospective jurors have posted online publicly. If you have a juror that comes in and is just all of a sudden just milk toast and just has no opinions, but you saw on their Facebook page that they think Joe Biden, you know, hung the moon, that's going to be a red flag for the Trump team, because that would mean that that person is maybe not being as forthcoming. And that's going to make me wonder why why are they not being like, I've got all these posts about how how much they hate Donald Trump and how they think Joe Biden is the best. And now all of a sudden, they're saying, no, no, I can absolutely be fair, I really don't have opinion. They're why they're trying to learn why they wouldn't be asked directly, by the way about their Facebook posts. But that team is going to be looking at that. And that would raise questions, it would it would absolutely make us questions because it would be indicative of somebody who is maybe trying to get on the jury. Yeah, I

Tom Hagy:

feel like I have heard interviews with jurors who did vote against against, against Trump or against somebody on his side of things. Who said they were actually the worry Trump voter. But when they they took the charge from the judge, seriously, this is what I have to rule on. To your point earlier, they do sit there and say, oh, wait a second. Yeah, this is this is what I'm supposed to be doing. This is a

Tara Trask:

... and I do want to just say, this is an arena in serious job I have. And it you know, it's either way, you know, the, you know, Biden Biden supporter, et cetera. But it was just heartening to hear that what was really disheartening. And, you know, there are literally some people who probably would say, I'm liberal for saying this. But I think the whole thing about intimidation, the judges clerk of the judge, which they're used to ensure judges have been killed. I mean, it's horrible. But, you know, that's the figure that's that's part of their, their existence, but it's, but even knowing the names of witnesses, it was Judge Kaplan, in the E Jean Carroll case against Donald Trump, where he said to the jury, my advice to you is that you never disclosed that you were on this which I'm very unhappy to have seen the Overton Window have jury. That is horrifying ... pushed and moved pretty dramatically, even with the question you just asked me which is sure there's always been intimidation judges have been killed. That's, that's true. I will say In my experience, I've been doing this for 30 years. I've never been in a case where a judge was threatened, where staff was threatened. I think that those things are and have been historically, exceedingly rare. And it was largely because there was a lot of trust and respect for the institution of our courts, that has been eroded. There is significant fear. I mean, I think a very reasonable question for either side to ask in this upcoming jury selection is, you know, let's say I'm just talking to a prospective juror, you know, Ms. juror number three, ma'am, if you were seated on this jury, regardless of the verdict, that you ultimately determined whether it was for convicting President Trump, or acquitting President Trump, would you be comfortable going back to your community, if they knew that you had served on this jury? You got to have people that are willing to say yes, because otherwise, their decision making is going to be influenced by their fears of going back to their community. And we can't have that in this country. I did work on on the Dominion case, I worked on the Dominion versus Fox case, and one of the most difficult things in working on that case, and I, I feel confident that this is an acceptable thing to share. Was I listened to only two of the 1000s By the way, 1000s of recordings, from a voicemails left at Dominion voting systems by angry Trump folks who were upset by what they had heard on Fox about dominion, and the vitriol and the anger and the violence. And the accusations and the threats. I could barely listen to two, because you're talking about people who are threatening folks who work at a company, they just they work at a they work at a voting systems company, tons of Republicans at that company, by the way, a whole bunch of them. Okay, this is and but it was the vitriol that was so, so discouraging to me, because and you know, frankly, there's there's folks that work at dominion, who still won't let their families open the Amazon packages from the porch, because they're concerned that there could be something dangerous, the point you made about how I can have all kinds of opinions. But if I'm willing to sit in a jury box, and raise my right hand and swear that I'm going to make my decision based on what I hear and see in that courtroom, and based on the evidence, I can judge the credibility that's my right as a juror. And then the court is going to give me law that I applied to the facts. And if I can say that, I'm going to do that. And I think there's lots of people who are conservative who are Trump voters, I think there's lots of people who are Biden voters who are liberals who could judge the Trump case on the merits, not on how they feel about Donald Trump, but on the merits of that case. And I actually feel like seeing that play out. Could be very healing in a lot of ways for for our democracy.

Tom Hagy:

I think that's a good place to close.

Tara Trask:

Yeah, I think so.

Tom Hagy:

There are trust. Thank you very much for talking with me about this.

Tara Trask:

Thanks, Tom. Always, always great to talk to you. I appreciate it.

Tom Hagy:

That concludes this episode of the emerging litigation podcast, a co production of HP litigation, critical legal content, V. Lex fastcase, and our friends at Law Street Media. I'm Tom Hagy, your host which would explain why I'm talking please feel free to reach out to me if you have ideas for a future episode. And don't hesitate to share this with clients, colleagues, friends, animals, you may have left the home teenagers you've irresponsibly, left unsupervised, and certain classifications of fruits and vegetables and if you feel so moved, please give us a rating those always help. Thank you for listening