“Never forget, almost every case has been won or lost when the jury is sworn.”
This seminal quote from Clarence Darrow — the first great American trial attorney — rings true. Indeed, jury selection is a crucial part of every civil and criminal trial. It presents the first and only opportunity for the attorney to communicate with the jurors during the trial and allows him to test the themes of his case and to mold the jury into favorable fact-finders.
In his article, “‘Mirror, Mirror on the Wall …’: Body Language, Intuition, and the Art of Jury Selection,” Heral Price Fahrigner demonstrates that experts in the field recognize that 85 percent of cases are won or lost when the jury is selected. This is likely, at least in part, because as explained by Lee Ross and Donna Shestowsky in their Northwestern University Law Review article, “Contemporary Psychology’s Challenges to Legal Theory and Practice,” “people respond not to some objective reality but to their own subjective interpretations or definitions of that reality.” That reality is formed prior to any evidence being presented at trial.
Hundreds of articles, treatises and books have been written by elite trial attorneys, jury consultants and legal scholars that discuss the importance of the jury selection process (actually de-selection) and offer strategies for voir dire. This article is intended to synthesize that material and offer a slightly different perspective on jury selection that is based on attorney preparation and attention to human factors. It is directed at young lawyers (many law schools do not teach jury selection), but it may offer helpful tips for the seasoned trial attorney as well.
No. 1 — Know your judge.
Learn his system. Does he use the “6 Pack” method or another seating arrangement? Does he conduct voir dire of the entire panel prior to attorney voir dire? Does he use a questionnaire? Does he release the names of the panel and their demographics prior to jury selection? Does he put time limits on voir dire? If you are in a master calendar system or if you get assigned to a new judge the day before trial, call the clerk to learn the rules of the trial judge. Knowing the answers to these questions will reduce the anxiety of grappling with te “mechanics” of jury selection.
No. 2 — Befriend court staff.
It is equally important to befriend the court staff. Learn their names and understand their roles. The staff is there to help you move the trial along as quickly as possible. The jury is watching every step you take, including how you deal with the staff.
No. 3 — Script your questions, but don’t be tied to them.
Don’t wing it. With countless pre-trial deadlines looming, it can be difficult to ensure that you’re adequately prepared for arguably the most crucial part of jury selection — getting to know your potential jurors. As J. W. Donovan stated in Gilda Mariani’s article, “Peremptory Challenge — Divining Rod for a Sympathetic Jury,” it is imperative to note each potential juror’s occupation, age, social status, intelligence, and candor. These factors may reveal bias or prejudice preventing the juror from acting in an impartial and objective manner.
It is important to prepare your questions well before voir dire. Take it a step further and categorize your questions for quick reference (i.e., introduction, occupation, damages, imprisonment, experts, your client, past experiences). You don’t want to appear unprepared.
Balance questions that call for “yes” or “no” answers with those that call for a narrative. Try to have a brief conversation with each juror so that you are comfortable with each other. A few back-and-forth exchanges will suffice. Don’t be tied to your script. You may miss a great opportunity to delve into an important area.
No. 4 — Go with your gut.
Evaluate your strengths and weaknesses to develop an approach that works for you. If humor isn’t your thing, try a different approach. Just be yourself. You know who likes you and who doesn’t. You know who will be sympathetic to your plight and who won’t. You know who is laughing at your jokes heartily, or nervously. Your client, colleague and jury consultant can be good sounding boards to determine who you want to keep and excuse.
No. 5 — Be a savvy observer.
Equally important is observing a prospective juror’s nonverbal behavior. Devote time to observing them as they wait in the courtroom. “Take note of their expressions, their dress, and their gestures. What newspapers are they reading? Are they carrying a movie magazine, a sexy paperback, or a police procedural manual?” Fahringer, supra, at 199. Also, take note of their nonverbal reactions to a particular question or statement during voir dire. Be careful — don’t overestimate what you can learn about someone solely based on his or her nonverbal behavior. These observations must be considered in context with other factors.
No. 6 — Explain the entire process, from beginning to end.
Weave into your voir dire information about what will take place during the trial from pulling into the parking lot in the morning to interviewing the panel after the verdict. Make sure they know you may decide to excuse them by a challenge and that you are not being rude for failing to exchange pleasantries in the hallway. The better you educate the jury on what to expect during trial, the more likely it is that each potential juror will be forthcoming in his self-disclosures and be receptive to your closing argument. This is what researchers commonly describe as “the reciprocity effect.” See Susan E. Jones, Judge-Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, 11 Law & Hum Behav. 131-146 (June 1987).
It is important to understand that most jurors do not want to be in trial and are not very fond of attorneys. However, if you can develop a sense of camaraderie with the jury, it will give you an advantage over your opponent. If you describe for them what will happen over the next several days, weeks or months, you will be serving your client well. The jurors will like and respect you, which will pay dividends.
Hopefully, this article provides some helpful pointers for your next jury trial. You never get a second chance to make a first impression, so be prepared for the selection process and understand the dynamics involved. Kenneth Spencer
