Category Archives: Jury


Dr. Bryan Edelman published an article in The Jury Expert: titled “The impact of graphic injury photographs on liability verdicts and non-economic damage awards.” The issue of photographs and other exhibits often comes up when a defendant objects that the exhibits are” inflammatory and prejudicial.”

FRE 403 says: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or of cumulative evidence.”

Dr. Edelman’s study concluded that photographs of graphic injury have a significant effect on final verdict. He concluded research participants who saw the plaintiff’s injury photographs were significantly more likely to render plaintiff verdicts than participants who did not the photographs. The use of these photographs, offered ostensibly to assist in assessing damages, actually strengthen a somewhat weak plaintiff’s case according to the author. He concluded that his findings indicate that while injury photographs may be relevant for assessing damages, they also appear to spill over and contaminate questions on liability. He believed that the photos also significantly boosted the amount of non-economic damages awarded.

However, other research indicates that some photographs can be so gruesome that jurors become upset at the lawyer displays them. Dr. David Wright and James Goodman – Delahunty published in Psychiatry, Psychology and Law, volume 18 August 2011 entitled “Mock jury decision-making in a civil negligence trial: “The impact of gruesome evidence, injury severity and information processing route.”

They did a mock jury study involving 240 students using one of two visual evidence conditions either neutral or gruesome photographs plus one of two injury conditions, moderate severe and high injury severity. Their findings were:

1. mock jurors who read about a more severely injured plaintiff were more sympathetic towards the plaintiff compared with mock jurors who read about a less severely injured plaintiff

2. Mock jurors exposed to gruesome photographs rated the defendant as significantly more negligent compared with mock jurors exposed to neutral photographs.

The authors also concluded:

“The results of our research and of other researchers suggest that the prejudicial influence of gruesome evidence on decision making occurs at an unconscious level. Jurors appear to be unaware of the extent to which they are susceptible to prejudice as a result of exposure to this type of evidence.”

Experienced lawyers have found that trial lawyers who use graphics generally will be able to educate the jurors on the case facts and issues more easily and persuasively. Action creates interest and therefore animated graphics increase the jurors understanding and retention facts. The question is what exhibits and especially what photographs should be shown were not shown to the jury for the greatest benefit by the plaintiffs’ attorney?

Here are some personal general beliefs based upon experience. Graphic and gruesome injury photographs can offend jurors. They may react with anger as well as revulsion. They will directed at the lawyer who presented the offending material. Some people are far more sensitive to graphic evidence than others and it is sometimes hard to judge in this regard. The best way to find out is by showing them to non-lawyers for their reaction, particularly focus groups.

If photographs or exhibits have the potential to defend but are necessary in the plaintiff’s case there are ways to avoid a negative reaction from the jurors. These include making sure the jury is warmed in advance about the photos or exhibits as well as the necessity for introducing them into evidence. I have put photographs in a folder so that when I pass them around to the jury I tell them that if they do not want to look at they can simply pass the folder along. Exhibits can be covered. Large posters can have a cover sheet. If the exhibit or photo is potentially offensive it should be in the smallest reasonable size and not made large. Keep in mind that curiosity is a common human trait and this approach may enhance interest in the exhibit in a favorable way for which you will not be blamed.

I believe that it is important to carefully sort through the potential photographs, records of injury and injury exhibits only the best. Non-lawyers, not involved in your case, are the best group of people to help you make this selection. I also believe that in major injury and damage cases less is always more. One does not have to emphasize or exaggerate major injuries. In fact, the more left to the imagination of the jurors the better.

This also applies to your own client in my opinion. My severely injured clients would be in the court only for jury selection, perhaps opening statement and then not again in court until they testified. Not only that, but their testimony was always very brief. Their testimony was generally that they were trying hard to get better and doing the best they could in that regard. Somebody else, their family, their friends, or their doctor had the rule of describing the injuries.

In addition to the required skills of advocate the selection of exhibits plays a significantly important role. This is particularly true of liability and damage photographs as well as other she exhibits. This should not be handled casually but should be studied by focus groups as much as the case is studied generally.


I have taught at the Spence Trial College and written in this blog about the approach Gerry Spence advocates in jury selection.  It can be roughly summarized as focused on building rapport through open, nonjudgmental discussion. It is not closed ended questions intended to dictate ideas. They focus on how the juror feels about subjects after he has first shared how he feels. Here is an example from Spence’s last civil case in Iowa:

Now let me ask you about this business of sympathy. Were all human, we want to be sympathetic. I have to start with me, and I’m going to say that I’m going to forget all sorts of things and I am as old as Methuselah and I ask for no sympathy for me. Nobody asked for sympathy for anybody here. I don’t want sympathy for my client because sympathy is cheap and I don’t want sympathy for all police officers either. All we want in this case is justice, that’s it. Justice. Are you all okay with that? Anybody have any problem with that? No sympathy. I would hate to go home and say “well they felt sorry for me so they gave me the $50,000,000 I was asking for.”  I want to hear from each of you. How do you feel, each of you by taking on this job as a juror?

One of the difficulties we have in using this voir dire approach is the imposition of time limitations most judges or court rules impose. Judges are increasingly inclined to believe the entire voir dire process is a waste of valuable time or even unnecessary. They commonly limit the time for jury selection irrespective of the skill of the lawyers conducting it or the issues in the case which make fixed time rules unfair. This makes the Spence approach difficult to use as intended. Where group voir dire is allowed the traditional approach has been to ask questions of the entire panel in light of time limitations. Here is an example of a group voir dire in a more traditional manner conducted by Joe Jamail in the Pennzoil company vs Texaco damage lawsuit:

  1. “Is there anyone who cannot accept that as evidence of whether Pennzoil and Getty thought they had a binding agreement on the 3rd of January?”
  2. “Now the evidence will show by at least one acceptable measure, by expert testimony we will present to you that Pennzoil was damaged in the amount of seven billion five hundred million dollars, a great deal of money. Now I know that is an astronomical amount of money, but if we are right and we prove our case by a preponderance of the evidence …is there anyone in the first row who has any reason to believe that because this is such a large amount of money that regardless of the loos and the proof that you would not be able to assess this kind of money damages…?”

It has become a challenge for us to find ways develop a rapport, identify the values and beliefs of the jury panel while also obtaining relevant demographic information with the unreasonable time limitations commonly imposed. Here are some thoughts to consider. To start with, do not try to avoid time restraints by talking fast. You need to speak at a slow pace with pauses or the impression is the weatherperson who has only few seconds to tell viewers all the information. You don’t develop relationships nor engender leadership qualities by talking fast. Consider a combination of styles. You can select a few primary subjects and use the Spence approach. That could well include some case problem issues and significant legal issues like sympathy. You could combine that with questions addressed to the panel with raising hands as a response. In addition, you could select specific people to ask a question and then ask how many agree or disagree. While I am not a fan of written questions to the panel that could be helpful in particular cases. Here are some general questions which can and probably should be asked:

  1. If you were John, sitting here, would you be comfortable having you as a juror in this case? Why? (It’s a way for the juror to mentally put himself or herself in your clients shoes even if momentarily)
  2. Is there anything you haven’t been asked that you think it might be better if we knew? (Be wary of the non talkers and often people don’t volunteer information they should)
  3. Can you think of anything  in your own life that somehow reminds you about what happened in this case? (It’s very important to find out about past significant life experiences the juror somehow relates to this case as they often dictate the decision)
  4. What are some of the most important values we should teach children? (Beliefs and values control our decisions irrespective of the evidence)

In addition, consider the importance of framing. Neural Linquestic Programing (NLP) has helpful information about words and phrases that have particular impact. The well-known book Words that Work by Frank Luntz identifies words that phrases that have emotional impact. Marketing experts are fully aware of the significance of words and phrases in advertising. We should consider being deliberate about using these words in our voir dire.

Here are some examples. Eliciting an image in the mind of the juror that favors your position produces subconscious results. The italicized portion are the words of art in this regard. They require one to pause in one’s mind and search which has a direct connection to the unconscious and can plant a seed of thought.

  1. I’d like to get your reaction. I’d like to get your reaction. Suppose after hearing all the evidence your verdict is for John. Could you see yourself feeling really good about doing the right thing?
  2. What’s it like when What’s it like when you have an opportunity to do something important for not just a client in a case like this, but for you, your family and the community?
  3. How would you feel How would you feel if you decided $10 million dollars was a fair and reasonable verdict under the law and evidence?
  4. If I were to ask you what is important about If I were to ask you what is important about eliminating a defective product from causing death or injury, what would you say?
  5. Imagine (One of the most emotionally powerful words we can use) Imagine you are on a jury that accomplished a very important principle that benefited a lot of people. How would that make you feel?

Learning to learn how to deal with a juror’s adverse response is important. Arguing is a mistake, but more important, takes valuable time you doing have. Letting the person fully express without interruption is essential. Here is a way to respond. I fully agree and I would add. I fully agree there are too many frivolous lawsuits and I would add that it reflects on genuine, valid cases like this one.

Another technique involving a negative response or believe uses a “parts” approach: I know there is a part of you that objects to people filing lawsuits like this. But there is probably another part of you that is in favor of justice for those who deserve it, am I right?

There are what are known as “trance words” which salespeople and advertisers know have a subconscious impact on the listener. These include imagine, visualize, remember and wondering. For example, “I am wondering how you would feel about having the courage to do what is necessary to right a wrong.” These are just a few thoughts about this important subject.

The most significant step is recognizing and planning for limited time after filing a motion for additional time. This means outlining the problem areas  in your case, the significant legal points and having a story line you advance  through questioning. A one page outline with notes should  allow  you to maintain eye contact while keeping yourself aware of time limitations. Plan ahead and use the right framing for the right issues. to discuss.


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.


  • 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. 


  • 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. 


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


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.


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


  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


  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 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