In the article, he said, “Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called ‘twelve men, good and true.’”
Darrow went on to emphasize the importance of evaluating a wide range of factors in selecting a juror, from “the books and newspapers he likes and reads” to “the juror’s method of speech.”
While this detailed analysis may be great when you have a judge who allows questionnaires and unlimited time to conduct voir dire, it’s a lot tougher when you have a judge who gives you 15 minutes to question jurors. While much has been written and discussed about it, the truth is, we make jury selection much more complicated than it needs to be.
Below are a few basic steps to simplify the process.
Let’s start with the primary goal of jury selection: to understand individual jurors’ life experiences and beliefs and how those will affect the jury’s interpretation of your case. To accomplish this goal, attorneys need to be truly curious and stay focused exclusively on the jury – not their case, their themes or their client.
Step #1: Identify juror biases that may hurt your case by stepping into your opposing counsel’s shoes.
This step is basically an exercise in masochism. Since attorneys have spent months, if not years, developing arguments for their own client, it seems counterintuitive to develop arguments for the opposing side.
However, this is critical to help identify jurors who will gravitate to your adversary’s case. These are the jurors you need to target for cause or peremptory challenges.
For example, if you are defending a wrongful termination case, you would naturally be concerned about a juror who has been fired, had a strong negative employment experience or thinks performance reviews are mainly used to demote or lay off employees.
Step #2: Ask open-ended questions to get jurors talking about these potential biases.
As an attorney is trained to control a witness’ answers through questions eliciting a yes/no response, it is counterintuitive to ask broad, general and even ambiguous questions of jurors.
But these are actually the best questions because they invite the juror to relay how he or she feels about the subject.
In an employment lawsuit example, you might ask, “In general, how do you think employers treat their employees?” Regardless of how a potential juror responds, don’t be satisfied with it. Ask the juror to tell you more about how he or she feels or ask what he or she means by a given response.
Since you mainly want to hear from people who have negative things to say about your case, you may ask a closed-ended question first and then ask the open-ended follow-up question. This sequence sounds like, “Who here thinks that employers will try to unfairly take advantage of their employees? Juror #4, how do you feel about that?”
In voir dire, it is important to shut up and let the jurors talk. In jury selection, the 80/20 Rule applies: 80 percent of the time jurors should be speaking and 20 percent of the time the lawyer should be speaking.
It critical to listen to and acknowledge what jurors say. This is no easy task given the looming pressures of opening statements and the beginning of presenting evidence. But the strongest rapport an attorney can build with a juror is when that juror feels like he or she has been truly listened to.
Step #3: Ask hard questions.
In cases with tough issues, we need to ask jurors tough questions.
For example, “I am going to ask you to compensate this mother for the emotional distress she has suffered after watching her child die in front of her. How do you think you will deal with that?” After we ask a question like that, we need to be very quiet. Jurors will struggle with the question and they need to struggle with it. This will tell you how they will grapple with the issue during the trial. Also, watch their nonverbal responses very carefully because they will tell you a great deal about the jurors’ reaction to the issue.
Step #4: Create a dialogue or mini-deliberation among jurors.
You are not just picking individual jurors. You are picking a group of people to decide your case. You want to see how they interact and work with each other.
So ask Juror #7 how much he thinks a manufacturer considers consumer safety when it is designing a product. Then ask Juror #11 how she feels about Juror #7’s comment. Keep bouncing the issues around the jury box until you are facilitating a discussion among the jurors.
Make sure you hear from everyone you think may be a strong opinion leader on the topic. This is essentially recreating the deliberation dynamic in voir dire. You want to see how the jury works with or against each other, and how the personalities mesh or clash.
Step #5: Don’t sabotage your voir dire.
Many attorneys don’t ask jurors key questions because they are concerned that a juror’s strong opinions will “poison the panel.”
Stop worrying. In most cases, jurors already have their own strongly held beliefs. Hearing someone else discuss his or her feelings typically reinforces or contradicts a person’s own belief but usually doesn’t influence it. It’s better to get those attitudes out in the open so you can decide whether to make a cause or peremptory challenge rather than let those attitudes play out in deliberations in an unpleasant way.
Also, stop spending significant time indoctrinating jurors about your case or “planting themes.” Wait until opening statements. Voir dire is the time to let them talk and target unfavorable jurors.
Many an attorney has lost a cause challenge and had to use a precious peremptory strike after asking, “But do you think you can be fair and impartial?” Do not ask this question unless you are trying to rehabilitate a favorable juror you might lose for cause.
Similarly, only ask a favorable juror you might lose for cause if he or she can “set that opinion aside and decide the case on the evidence.” By eliminating biased jurors with cause challenges, you can preserve your precious few peremptory challenges for questionable jurors, improving the overall composition of the panel.
Step #6: Look at the whole panel when making your strikes.
We sometimes focus so much on eliminating jurors with any negative characteristics that we lose the big picture. We are picking a jury, a group that ultimately has to work together toward a verdict. While one juror may not be great on a single issue, they may be a follower and have a good rapport with a couple of other jurors you like. Figure out the kind of personality that fits your case best (e.g., analytical, empathetic) and look for a group that seems to embody those traits. This may mean that you leave a juror or two on the panel who has a couple of negative traits.
Step #7: Tailor your case to your jury.
If you have taken notes on what jurors said during voir dire, use these themes and phrases in your opening statements, examinations and closing arguments. If you have asked evocative questions, the jurors have told you what is important to them. Using that information in presenting your evidence demonstrates that you are working to make your case understandable and meaningful to them.
Richard Gabriel is the co-author of the Thomson West book, Jury Selection: Strategy and Science and the creator of the new Jury Mediation resolution tool. He is President of Decision Analysis, a national trial consulting company.