Jury Selection in the 21st Century

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Selecting the Least Bad Jurors is a Key to Winning
So Many Jurors, So Little Time

Quite often you will face severely truncated time periods for selection, and will be left with little information to work with. In this setting you will be forced to develop your own educated assumptions. You will need to rely heavily on making educated judgments about a jurors personality type. You will need to use their occupation, attitude, and body language to help you draw your inferences.

Harry plotkin in his excellent jury selection blog, has identified six distinct juror personality types, and i certainly can’t improve on them.

They include:

Sympathetic, practical, analytical, conventional, persuasive, and creative.

The challenge is to try to glean in which category each juror falls.

Plaintiffs will want to avoid jurors whose attitude and comments suggest that they don’t want to serve and that the time is being wasted. Self centered jurors like these tend to lack the empathy required to identify with the victim and award significant damages. Notice which jurors seem highly curious and suspicious, because the conventional wisdom now is that these are plaintiffs jurors.

Conversely, notice which jurors seems skeptical, unmoved, and bored. Perhaps they are rolling their eyes, shaking their heads, or even smirking. These jurors tend to be the most skeptical of lawsuits and plaintiffs cases. If you have a polarizing case spend as much time as you are given to encourage biased jurors to talk themselves off the jury. By polarizing i mean the type of case that tends to provoke strong feelings one way or the other, such as a malpractice or sexual harassment case.

Try to identify the issues and values of your case and spend as much time as you can learning about your jurors and how they might feel about those issues and values.

Try to ask questions such as “does anyone have any concerns or feel uncomfortable about…”

Or “does anyone have any concerns about x that might make make it difficult for you to…”

Plenty of Time

Again drawing on harry plotkin’s work, we have identified four main objectives you should try to accomplish in a full voir dire:
1. Build a foundation to excuse jurors for cause
2. Identify unreceptive jurors to strike or to talk off
3. Convincing receptive jurors that they share values with your case and your client
4. Learning as much as you can about their values so you can tailor your case to convince them that indeed your case does share their values

Main Objectives

You’re overriding concern is to differentiate between jurors who will likely be receptive to your case and those who are likely to be unreceptive. Don’t waste your time trying to persuade jurors, but rather try to understand them and in understanding them unmask those who must be stricken. In other words you’re trying to identify and deselect the worst jurors.

Understanding jurors requires that you listen to them. The mistake most lawyers make you spend most of their time talking rather than listening. Listen and never prompt or influence your jurors answers. Do not suggest answers to jurors or put words in their mouths, especially when a juror is struggling a little to give an answer. Let the juror think and answer in their own words. A question like “what do you do when you back your car up” is much better than “do you always check your mirrors when you’re backing up.”

Another Major Objective is Preconditioning.

Preconditioning is most effective when it hits home in ways they can internalize not when a lawyer makes an argument in the disguised form of a question. The most effective preconditioning questions are those that get jurors talking about their own experiences beliefs and approaches and that makes them realize that they really agree with your case, your themes, and your clients actions.

You Must Keep Some You Don’t Love

The likelihood is that you’re not going to keep your best jurors but rather that your adversary will understand who your best jurors are and strike them. Conversely you will likely be able to identify your adversaries best jurors and strike them.

So, the likelihood is that you’re going to be left with a number of middle-of-the-road jurors who make you nervous if not scare you a bit. These are jurors who have not expressed hostility to your point of view but there is something about them demographically or occupationally or stereotypically that make you nervous.

One thing you will have to do is spend some more time with these jurors then you would commonly think necessary. In other words spend less time with your best jurors and less time with your worst jurors and more time with the middle of the road juror so that you might be able to determine which of these is least bad.

You Must Get Rid of the Ones You Hate

Never, ever, never ask a juror if they can be fair. I sometimes feel that the “can you be fair question” is something that comes out of a bit of laziness. You really haven’t spent the time and effort to ask open ended questions and you’re falling back on a little trope that you’ve heard lawyers and judges use so often.

In the world we live in, who really thinks they cannot be fair.

In the world we live in are jurors really so aware of their biases that they will be honest and admit that bias. You must ask questions that allow the jurors to feel comfortable in expressing their points of view even if they themselves feel that those points of view may be controversial.

I have seen this issue put very well and i would quote it to you was follows:

“no jurors feel comfortable admitting that they are biased, that they cannot be fair, and that they may have trouble listening to both sides, that they already have suspicions about your case, and that they may have real concerns about following the jury instructions or the law.”

To put this all in another way, be careful to never let the jurors self diagnose their own biases. Every juror believes that he or she is fair and objective and reasonable. Every juror has their own unique definition of what is fair and reasonable. Even jurors who have absolute money limits in the mind will tell you that they are able to award just and fair compensation.

If you ask them that if the proof shows that dr. Jones departed from accepted standards of care would they be able to give a verdict to the plaintiff, almost every single juror will answer yes even if they are implacably hostile to medical malpractice cases. You must ask them whether they have any hesitation, or concern, or discomfort, with any of the main issues of your case. You must ask them whether they would feel more comfortable not serving on this particular jury or in dealing with these particular issues.

Give the juror the clear impression that you understand and credit their concerns even if they don’t support your clients position. I often begin with a general statement that it all of us because of our different families, backgrounds, education and work experience come to the jury room with a different set of beliefs,concerns and expectations. I then go on to say that each and every one of them is absolutely entitled to their beliefs concerns and expectations, and no one in this room is here to be critical or hostile to those expectations, or are trying to change their minds.

Try to make each juror feel comfortable in admitting what to them is a reasonable and legitimate concern which might get in the way of them serving as a juror in this particular case. Try to have the juror recognize that it would be difficult for them to give up their deeply held beliefs concerns and expectations and that no one is asking them to do that.

One way to frame the question is to suggest to mr. Jones that given your concerns are you able to tell me that you can be absolutely certain that your feelings or belief won’t influence your thinking about this case in anyway.

Put another way do you think that your concerns might be a factor in your verdict. Perhaps questioning in this manner will allow the juror to strike himself or at least form a foundation for a strike for cause.

Sometimes the loudest trumpet blows the clearest note

Plaintiffs lawyers seem to me to be unduly frightened by loud and often opinionated jurors. Keep in mind that every jury typically has a leader, and the loud opinionated juror might indeed be a leader in your favor. Since we believe that all jurors are biased in someway, it may be that we need to be more afraid of the silent enemy then we are of the loud opinionated individual. Take the time with the loud one to find out if the juror has a set of attitudes that might in fact support your case. By the way don’t let smiles fool you. Many lawyers often convince themselves that friendly jurors will be receptive to their case. This is a trap. A smile and pleasant demeanor might hide a set of attitudes that will be fatal for your case-speak to these jurors and find out their attitudes not there demeanors.

As You Judge So Shall Ye Be Judged

As you await the jurors and begin the process of judging whether they will be right for your case, remember that jurors will begin judging you the minute they lay eyes on you. I am not a big believer in dark blue or black suits white shirts and red ties. Remember that most of the jurors do not dress this way, and when they do it is usually to go to a funeral. I think you can soften yourself with lighter colors, perhaps earthier colors, and very little jewelry or flash.

I tried a case several years ago in a rural community and wore the same beige suit with a clean shirt every day. At the end of the case the jurors expressed to me that they had discussed the fact that i wore the same suit every day, and were impressed that i was not dressing to impress. I will let you in on a secret: it was not the same suit but three duplicate suits that were all a bit rumpled.

Jurors don’t really trust you, and think that you are going to force them to try to agree with your point of view. I don’t like starting off questions with would you agree, or perhaps even worse would you agree with me. Jurors think lawyers talk too much, and voir dire is a good place to show them that you are a good listener not just a good talker.

So the conventional wisdom, with which i agree, is to ask open-ended questions and questions that might begin or end how do you feel about or how do you feel about that. But and it’s a big but, when you ask these open ended questions, listen to the answers. Don’t interrupt. Don’t finish their answers for them if they hesitate. Be patient.

Empathy

Everybody is sympathetic, even the most coldhearted person among us. Everyone will feel sympathy for a paralyzed plaintiff, or even sympathy for the driver that put the poor plaintiff in that position. What you want to find out is whether the juror feels empathy and identifies with one side or the other. Put another way, in whose shoes will the juror feel most comfortable. Most recent juror analysis indicates that jurors shy away from empathizing with litigants who have suffered tragedies. This appears to be a self protective mode in that jurors don’t really want to feel that this could happen to them- no one wants to feel that they could be a victim. The juror who feels that what happened to either side could happene to them will lean that way. If you think you might have a major problem in your case craft your questions to be detailed and specific.

And Moses Handed Down the Law from the Mountaintop

How many times have you asked a juror “would you be able to follow the laws as instructed by the judge even if you disagree with them,” got a yes answer and then moved on? Well you may be satisfied with the answer but you’ve actually learned nothing.

The problem is that most jurors have no idea what the law is that will apply to your case and most jurors assume that the laws are fair. What does fair mean? Well, to most of them it means that the law will feel right according to their own values and beliefs. They have no reason to believe that they would not follow the law because they feel certain that the law will comport with their own personal value system.

But what if their belief system suggests that in order for a doctor to be held liable for a patient’s injury there must be some level of intent? They might find it difficult or impossible to follow a law which only holds a doctor liable for negligence or inadvertence rather than an intentional act.

If you are permitted to, ask the juror whether they would be able to follow the law if the law requires a finding for the plaintiff if the doctor was negligent or acted below the standard of care without any intent to harm the patient. Asked another way, you can ask them if they think it may be unfair or unreasonable that the law requires a finding for the plaintiff if the doctor was negligent or acted below the standard of care without any intent to harm the patient.

Will the Blind Lead the Blind

If you have complex case, with complex issues, you will have to decide at the outset do you want jurors who are informed about the issues and who have life or professional experience and training in those issues?

If you don’t want informed jurors, then you will have to decide what perhaps the expectation of the uninformed jurors might be and whether you need to do anything to buttress or change those expectations.

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