Gone are the days when lawyers tried to argue their case before the jury panel, hoping to convince potential jurors of the merits of their case in the first few precious moments of voir dire.
The new approach to jury selection is to get juror bias out in the open.
“Twenty years ago, lawyers were taught that if a juror says something bad to shut them up because they’ll poison the other jurors,” said David Ball, a jury consultant in Durham, N.C., and author of “Theater Tips and Strategies for Jury Trials.”
The panel is already poisoned, jury experts say.
For plaintiffs’ attorneys in particular, the effects of tort reform and media-hyped verdicts have influenced general public perceptions about personal injury suits and high damage awards.
Jurors are now “more conservative, more skeptical and more cynical,” said Mark Kosieradzki, a Minneapolis plaintiffs’ attorney who trains lawyers on trial techniques.
“Jurors don’t trust lawyers – you have to accept it. Jurors assume you’re going to try to manipulate them,” he said.
But, he added, “voir dire is not the time to debate the propriety of the McDonald’s case or the need for tort reform. Those life-long attitudes cannot be changed in the course of a trial.”
Lawyers should spend less time on changing such deeply ingrained attitudes and more time exposing those attitudes so that is it more difficult for the judge or opposing counsel to “rehabilitate” the juror, therefore permitting them to be excused for cause.
“There’s nothing more shocking than when a jury is seated and the attorney is saying ‘I don’t know anything about 10 or 12 of them.’ It happens all the time,” said Lin Lilley of Southwest Jury Consulting in Austin, Texas.
“You want to get all the dirt out now,” Ball agreed.
He also suggests asking the judge in advance what the ground rules are for striking jurors.
“Some judges demand a juror be incapable of following the law; other judges are willing to accept the ‘substantial impairment’ standard,” he added.
‘Whole Different Persona’
Some of the skills that make the best trial lawyers – advocacy, argument, control and cross-examination – are the opposite of what’s required for successful jury selection – listening more than talking, encouraging opposing views and not asking leading questions.
Part of the problem is lack of practice.
“Lawyers do less voir dire than any other thing. You can practice your opening statement by pacing back and forth in the morning in front of the mirror. You can practice direct and cross-examination in depositions. But unless you do focus groups, there’s not much opportunity to practice voir dire,” said Phillip Miller, a Nashville, Tenn., plaintiffs’ attorney.
The biggest hurdle for trial lawyers is suppressing the instinct to argue with jurors or convince them they can be fair.
“One thing I recommend is that attorneys take on a whole different persona with regard to their role in the jury examination phase. At that moment, they’re not advocates for their clients. They’re advocates for the panel itself,” said Douglas Keene of Keene Trial Consulting in Austin, Texas.
Miller agreed that litigators should resist the temptation to cross-examine a biased juror.
“Maybe you get that person off your jury, but you send a message to the other jurors that if they open their mouth, an attack dog will be on them,” he said.
Instead, lawyers should take the opposite approach – encouraging jurors to express their opinions, however adverse they may be to your case.
Miller, for example, tells potential jurors that there’s no such thing as a bad juror, only jurors who are not suited for a particular case based on their own personal view and life experiences.
For example, if the issue in a med-mal case is whether a doctor wrote down what the patient told him, a juror who has had this experience with his or her own doctor is more likely to have a strong opinion about the issue, Miller explained.
“The fact that someone to the left or right expresses a different opinion isn’t going to change someone’s view of the world,” he added.
James Lees, a trial attorney in Charleston, W.Va., said lawyers can bond with jurors by sharing their own biases.
For example, Lees has told jurors that although he believes he’s a fair-minded person, because he has children he would make a terrible juror if chosen for a case involving allegations of child abuse.
Techniques To Remove Jurors
Kosieradzki, who handles catastrophic injury cases, said he might begin jury selection in a nursing home case by acknowledging that his client is 93 years old and that he plans to ask for $50 million in damages.
Then, he asks: ‘A lot of people are going to say, $50 million for the death of a 93-year-old is outrageous; there’s no way I can listen to any of the evidence. I’m sure there’s a bunch of you who feel that way and it’s your job to let us know.”
If only one person raises his or her hand, he would encourage more to raise their hands, by saying, ‘There’s an honest person. Who else feels like Mr. Smith? I’m sure there are more of you…’ The whole idea is to get everyone talking,” Kosieradzki explained.
Once you have identified those people you can talk to them individually and zero in on how strong their biases are.
The same holds true for negative opinions that don’t relate directly to the facts of your case, but are likely to make it difficult for a juror to deliver a verdict for your client.
Here, too, the goal is to make jurors feel comfortable to come forward with their negative views.
“If a juror says ‘I hate lawyers; I think they’re scum,’ your answer should be, ‘Listen, I can’t thank you enough for sharing that with me.’ Some lawyers tend to react angrily and it turns off the rest of the panel,” said Lees.
A technique Lees uses in voir dire is to quickly identify two people who represent the opposite extremes on a few key issues in the particular case, and then compare the rest of the panel to them.
For example, in a murder case in which he represented a man who shot his wife thinking she had a gun, Lees asked potential jurors when they thought it would be OK to kill another human being.
“One guy said ‘Only if you know for sure the other person is going to kill you.’ Three jurors later, a housewife said ‘Let me tell you something. If you threaten me or my children, I’m wasting you,'” Lees recalled.
With these two extremes identified, Lee than uses them as a point of comparison when questioning other jurors. He might ask a juror who hints at a bias, “What did you think of what Mr. X said?” If the lawyer has treated Mr. X’s extreme views with respect, others will feel more comfortable agreeing with him.
Lees used the same technique with the other key issues in the case, such as domestic violence and drinking (the couple were alcoholics who were both drunk when the incident occurred), and eliminated those jurors closest to the extreme side that disfavored his case. (The jury found the defendant not guilty.)
There are also techniques in crafting questions to get better responses.
For example, asking “How many of you feel that way?” rather than “Do any of you feel that way?” will get a quarter to a third more responses, because the latter makes people feel singled out, said Lilley.
Another way to encourage negative answers is by acknowledging societal biases by asking: “Many people think there are too many lawsuits. What do you think?”
Framing the question this way is less threatening than asking jurors directly if they are biased against lawsuits.
“Lawyers aren’t hearing it. They’re just passing by and going to the next juror,” said Lilley, who added that lawyers should follow up by asking, “What do you mean by that?”
Once a juror has made a statement that sounds biased, the most common follow-up is “Do you think you can be fair?” But this is a “lousy question,” said Lilley, because everyone thinks they can be fair.
“The best follow-up in the world – the one that every lawyer should have,” said Ball, “is, ‘Tell me more about that.'”
The idea is to get jurors to expose more of their own biases in their own words.
Then, Lilley suggests, the attorney should repeat the juror’s own words so the trial judge will hear it again and be less inclined to rehabilitate the juror.
The real challenge is getting jurors to resist being rehabilitated by the opposing attorney or by the judge. Miller calls this “going deep” by exploring and reinforcing the bias so if the juror feels so committed to the bias, the only conclusion is for the judge to excuse him or herself.
“If you went into any courtroom and asked 25 potential jurors how many believe there are too many lawsuits, they will all raise their hands. Does this mean they’re not good jurors? Not necessarily. The real question is how deeply is it held,” he said.
Miller, for example, might ask a juror if his or her family members and neighbors feel the same way, or how long they have held such an opinion, or what life experiences have helped them form that opinion.
Ball suggests that lawyers make the bias a “badge of courage” by making reassuring statements such as, “You don’t seem like a person who changes your mind just like that,” or “You sound like a woman who knows her own mind,” added Ball.
The goal is to “establish that this is an opinion that the person didn’t come up with in the moment. You’ve got to make it easy for them by allowing people to say it without feeling rejected and condemned,” Miller said.
After the juror has expressed the strength of their views, Lilly recommends ending with closed-ended questions such as “You feel pretty strongly, don’t you?” or “Do you think you would set limits on what the Smith family would get?”
This makes it harder for the judge to ask whether the person can set aside those opinions.
“By the time you’re finished, there shouldn’t be any question whether the person can be rehabilitated,” said Miller.
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