Category Archives: Jury

JURY SELECTION CONCEPTS.

My friend Eric Fong is scheduled to start a major damage jury case in Seattle and we discussed jury selection ideas. That made me think I should post something in general about this subject.

PRACTICAL SUGGESTIONS

  • Have one sheet of paper with topics you want to cover – simple topics headings with large enough type you can glance at  it and read it. Organize the topics by order of importance.  
  • Let someone else take notes. Maintain eye contact with the juror  whenever  the  juror is talking.  
  • Remember to smile. When we are nervous we often look very serious and intent. Be friendly and kind. 

IDEAS ABOUT JURY SELECTION

  • It is a conversation and not an interrogation. Get them talking. You talk should be talking about 20% of the time and they should be talking 80% or more 
  • Do not be a lawyer and argue with them. You are there to listen. Let them say whatever they want even if they are attacking  you and your case. Give the right to their opinions and be non-judgmental. Project credibility by acceptance of their right  to their opinions. “I can understand that. I  suspect there are other people who  agree with you. Who else agrees with juror Smith?  Why Who has a different view point?Why?” 
  • Your goal is not to convince them to your position or to persuade them by argument or logic your are right. What you are  there for is to find out their significant value system and important life experiences through allowing them to be honest and conversational. Get them talking and then ask what the others think to keep it moving. 

GENERAL OBSERVATIONS

Important ideas for conservatives include the following ideas  and each  of them you can and should agree with as well as showing them how they support your case and not the defendants.

(1)        Duty owed must be observed

(2)        We are responsible for our actions and should be accountable for them

(3)        The law should be enforced

(4)        We must obey the law whether we agree or not

(5)        Reject pleas based upon sympathy – justice, what is right, counts

(6)        Family values and the family unit are important

(7)        People should be held accountable for what they do

GENERAL JUROR PROFILES

The following are characteristics of importance, but  they are broad simplistic generalizations which can’t be  followed as  a iron clad rule of selection. 

(1)        Leaders – always dangerous. Generally want to avoid as they take over jury. Avoid people with law connection as jurors will look to them for advice.

(2)        Authoritarians – people who are deferential to authority will favor doctors, police etc.

(3)        People with an axe to grind on any subject are dangerous

(4)        Neutrals – do not carry any weight  in absence of some other negative factor.

(5)        Followers are influenced by the group dynamics and the leaders on the  jury. Usually they are conservative.

IMPORTANT FACTS ABOUT JURORS

Keep in mind these facts during jury selection:

(1)        Once people have taken a firm public stand they are unlikely to change. That means if you get jurors to commit in front of the other jurors to matters they are very likely to stick to that position. This is important in trying to disqualify a juror (“not a case you feel you should decide” or “follow the law even if disagree”)

(2)        People search for the rules to guide them in deciding case. What are the rules we are supposed to follow?

(3)        Significant past experiences will guide their feelings and opinions now.

(4)        Strongly held beliefs and values will trump everything

SUBJECTS TO COVER ON VOIR DIRE 

  1. Discuss the key points in your case. Arrange issues by priority of importance. Cover only the most important issues.
  2. Search for juror strongly held values, opinions and beliefs
  3. Search for any significant life experiences that could impact case
  4. Ask general significant demographic questions, but don’t waste your time here

POINTS TO DISCUSS IN VOIR DIRE

  1. Preponderance only means more probably true then not (see David Ball)
  2. We are not after sympathy, but need to show facts to evaluate
  3. Must follow law agree or not
  4. Community interest in case
  5. Damages 

DISCUSSION PHRASES

Discussion phrases include the following: (See David Ball  Damages  3  for  ideas) 

  • There are two areas I’d like to discuss with you: (1) your important life experiences that might help you decide this case and (2) your opinions about issues in the case 
  • Some people believe….(all doctors are right all the time) while others believe…..(doctors are human and can make mistakes)….Which way do you lean if only a little? 
  • Tell us more about that 
  • Use “looping questions”  – when you get an answer from a juror use that answer in the question to another juror: 
  • Mrs Smith says there are too many lawsuits against doctors, what do you think? 
  • How do you feel about what juror Smith just said that it is important to pass knowledge on? 
  • Let me tell you why I am very glad you said what you did: It takes courage to say that in front of people. Who else on the jury feels the same way?

 

  • Some people are uncomfortable about making decisions on a jury that might have an effect on the community. Others are OK with it. Which are you closer to

 

  • Some people feel it is a good thing for jury verdicts have an effect on the community. Others disagree. Which are you closer to

 

  • Who here would have a problem hearing both sides and deciding which rules you want in this community 
  • Some jurors feel the jury is the guardian of the community. Others are uncomfortable with that idea. Which are you closer to

 

WHY DON’T WE GET RID OF “DUMBASSED JURORS”?

I received this Email from someone whose address was: bob bdifalco@yahoo.com about my post regarding jury selection. He said:

“Lawyers ought to spend their time getting rid of all juries, and hyping up judges so are adequate without dumbassd jurors.”

JUDGE< When the constitution of this country was being debated jury trial was seen as an essential and far reaching civil right. The men who signed the Declaration of Independence and wrote the Constitution provided for three separate provisions in the U.S. Constitution to guarantee the right of jury trial. Article III, Sec 2 provides for trial of jury in the state where the crime was committed. The Sixth Amendment guarantees the right to a speedy and public jury trial. The Seventh Amendment of the Bill of Rights guarantees jury trials in civil cases. The right to jury trial in civil cases was specifically and deliberately added to our Bill of Rights as an essential right of all Americans.
There is a reason for the founding father’s concern about the right of jury trial. From the time of the Norman Conquest the issue of the right the ordinary citizen to trial by one’s peers rather than a judge was a huge issue. The founding fathers knew the history of England. They knew one of the key concessions to the people was the Magna Charta of 1215 conceding the right to a jury trial of one’s peers. They knew the history of the English Star Chamber secret trials by judges and its abolition as a grant of right in 1641.

Alexander Hamilton said: The civil jury is a valuable safeguard to liberty.” Thomas Jefferson in a letter to Thomas Paine wrote:
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

That’s why Jury trials were seen as such an essential protected right that it was put in the United States Constitution in the Fifth, Sixth, and Seventh Amendments of the US Constitution. When we are dealing with historical rights and constitutional rights of this magnitude which have been included in the Bill of Rights, one should be slow to arbitrarily decide to just eliminate them because of complaints about jury verdicts.

THE CHALLENGE OF JURY SELECTION

The subject of jury selection is particularly relevant now because of discussions in Washington state about eliminating preemptory excuses of jurors and because many lawyers generally find it to be a difficult art to master. The discussions in this state about elimination stem from our State Supreme Court who ask whether preemptory excuses should be simply eliminated. The argument for doing so is based primarily upon whether there is discrimination against minorities in the process of jury selection through this excuse process even though there are procedures to prevent this from happening. In my view it would be an injustice to eliminate this right on that basis because I feel the cost greatly outweighs weight of the assumed problem. If the system of challenge for cause was actually fair and effective it would not be as serious to do so, but the fact is that challenges for cause are for the most part unfair and not effective. Judges are reluctant to grant challenges because of concerns over the size of the remaining jury pool resulting in a possible delay of trial and a mistaken assumption that a verbal promise by a juror to set aside obvious bias can be relied upon. The truth is that most judges generally are not fully informed regarding the abundant research about human nature, decision-making and bias. Instead, they rely upon the idea that people can control attitudes and bias by will power. The research clearly establishes that this is wishful thinking. Human beings are not able to consciously control attitudes and motivations which are largely subconscious in nature.

In an excellent article by Susan MacPherson in February 2014 with the title “why do we ask jurors to promise that They will do the Impossible?” this subject was discussed. She points out that the traditional question put to jurors who have been honest enough to disclose a potential bias is this: “Would you be able to set aside that experience (attitude or belief) and decide this case only on the evidence you hear in the court room?” or another variation is: “Are you willing to follow the law as I give it in spite of your attitude?” These are the traditional “rehabilitation” questions judges are quick to ask in order to avoid granting a challenge for cause. The great majority of jurors are quick to agree that they have that ability to set aside bias, follow the law and can be fair in spite of the stated experience, relationship, bias, belief or experience even though it is an utter impossibility no matter how well intentioned they might be. Yet, judges generally are quick to accept the assurances in spite of the fact that such promises have been proven by research to be impossible even if the juror were willing to try.

As the author points out:

“Decades of social science research debunked the assumption underlying the “set aside” question. More recent neuroscience research dramatically illustrates how, outside the stimuli trigger, immediate reactions in the brain and other further proof that a request to “set aside” a relevant experience, attitude or belief is asking jurors to do the impossible. Jurors simply cannot flip a switch and shut off the influence of their own life experience or well-established attitude and beliefs.”

As important, the author points out that the traditional approach to attempt to rehabilitate the juror is also contrary to accepted knowledge about human behavior. She observes that we should stop adding to the burden of a juror by asking them to take on an impossible task with concepts like “set aside” and “rehabilitation”.

As to the challenge of jury selection, Dr.Amy Singer is a trial consultant in Florida I know and have used as a consultant. She wrote an article “Are you De-selecting the Wrong Jurors?” which I agree with totally. She notes that for years attorneys have focused upon juror demographics and used closed ended questions to figure out who they did not want on their jury. She correctly observes, however, that demographics are the least reliable basis of making such decisions. She notes that there are numerous studies which show that demographics have no correlation with jury behavior. As a result every jury voir dire should go beyond demographics and explore such things as value beliefs.

She notes that you should ask value belief questions and questions about the problem areas of the case in order to know who you might want to be excused from the jury. She also argues that it is important to identify how jurors relate to the problems and issues of your case. That involves life experiences and personality traits. Leaders who have had similar life experiences are likely to apply them and share their experiences with others in the jury room as “experts.” Dr. Singer points out that there are people on the jury who have hidden agendas concerning the outcome of the case as having a personal impact on themselves or with strong feelings about the nature of the case. There are ways in which to explore the existence of such jurors but one should the aware of these stealth jurors. She also points out that with limited time for juror questioning every question should count and should encourage participation by as many people as possible. Open ended questions along with giving jurors a chance to elaborate on their answers indicates that you feel their opinion matters to you. She encourages keeping the conversation going even when you hear an answer you don’t like.

These are some obvious observations about a complex exercise, but a good refresher on fundamentals to keep in mind. We are all in need of learning when it comes to jury selection procedures.