Category Archives: Jury Selection

THE CHALLENGE OF JURY SELECTION

Two of my partners and I start a jury trial in Seattle a week from now. Originally set to start on Monday the trial judge decided the case wouldn’t fit the scheduled time and it was moved to another judge to start a week later. There is a train load of paper flowing in from defendants consisting of motions, briefs and documents. The defendants have been attempting to move the venue and/or continue the case and this onslaught of paper looks suspiciously like an attempt to intimidate the new judge into a delay of the trial. I’m relieved of the burden of responding and have been concentrating on jury selection and the damage portion of the opening statement. Of course, there are mountains of motions to limit both drastically which will be heard this week.

So, here’s the issue. There is a certain amount of demographics, opinions and values it would be important to know in evaluating a potential juror. To obtain that kind of information you need to ask questions for information or at least framed in a way that produces the information. On the other hand, it is even more important to have rapport with the jurors. To accomplish that you need allow free and open discussion rather than a type of interrogation. In most courts you are not allowed enough time to do both very effectively so there is a tension over the approach to use.

For example, if you want to find out values and opinions you need to frame questions that essentially present two viewpoints and ask which they favor. That can be done on a numerical scale, such as “on a scale of 1 to 10 where are you on this scale?” Or it can be done generally such as “which way do you lean, even if only slightly?” Questions can be framed in a general way such as “name three people you admire.” But, the bottom line is these are questions calling for answers and not open discussions about general matters which lead to a bonding relationship.

It is true you can accomplish both if done artfully, but most jury consultants will want specific questions with answers that can be measured like the previous examples. Yes, one way to achieve this is through written questions the jurors fill out. My experience has been that when we propose a non-slanted one page questionnaire the defendants always propose several pages and most are slanted. The judge then sees a problem of getting them filled out and back resulting in a decision not to use them or forcing me to object to the use. It would be fine if the printed form the judges have jury panel fill out had more information, but it is very limited. This results in having to have a balancing act between information gathering and rapport building. Furthermore, how do you screen the entire panel with the limited time you have. Raising a hand is one way, but does not involve one on one communication.

The result is you need to frame a limited number of information questions, a limited number of questions about the danger points in the case and the rest intended as general bonding discussion. That means having to establish a priority list and limit the areas to fit available time. It’s important to try to talk to each panel member if possible, just to have them say something to you instead of just raising a hand. For me, that means a lot of preparation planning about fitting these goals into the time allowed. That’s a real challenge when you are allowed twenty minutes, but it’s important to try to do it right.

For me, that means (1) determining what major issues or danger points there are in the case that should be brought up in voir dire and then selecting the three most important (2) trying to determine the likely number of the panel that could be on the jury after the court has conducted its voir dire and excused jurors by considering the total peremptory challenges allowed, estimating the likely number of challenges for cause that could be granted added to the number of jurors as well as alternates. The rest of the panel, not included in that group, I’m likely not to talk to as priority decision. (3) Selecting questions likely to reveal deep seated values and past significant life experiences and (4) framing general discussion questions with no particular objective than to encourage discussion.

This process is a lot more involved than the idea of “just standing up and talking to jurors” which is the conventional wisdom of some. It is also not intended to use challenges for cause with a goal of eliminating all “bad” jurors as that is time consuming, an impossible task and negative producing for the remaining jurors. Nor is it a process of convincing the jurors to a point of view which is next to impossible in voir dire.

All of this is easy to discuss in generalities like this, but a skill which is difficult to learn and apply, but essential to know.

THE SPENCE TRIAL COLLEGE REPORT

Well, I made back from the Wyoming trial college. This year’s class was a great group who were motivated to learn. The subject that week was primarily jury selection. We also started direct examination after demonstrating the listening exercise where people learn how to actively listen. We had the benefit of Gerry doing a long jury selection demonstration. I was able to work with the lawyer instructors in various workshops where the attendees practiced how to do it. On Tuesday night I gave a talk on communication, jury selection and a brief discussion of final summation. I had the benefit of working with staff members who were graduates of the program and most of whom I have known for some time. We had an outstanding psycho-dramists, Kathie, as well as one of the finest teachers of communication I know, Josh Karton.

There was much to learn mostly by me from watching the lawyer students work and having illustrated why certain techniques are good and others bad .so it turns out to be a mutual learning experience even though Iam regarded as an instructor. So, here are a couple of things Gerry did I thought were very effective and worth sharing with  you.

1.  You don’t know me. We don’t know each other. You don’t know my client, James. You don’t know judge Smith or defense counsel. Yet, you need to know the truth and I am afraid even though I have been a lawyer for many  years. You have such enormous power and responsibility to do the right thing that it frightens me. I am wondering if this is a little frightening to you too? Do we both have the same kind of fear about doing our job  here? How do you feel about that?  Comment:  Creating a common bond of mutual feeling gives idenity with the group, being a part of the group or, as Gerry calls it, “the tribe.” When he gets affirmative responses he reinforces this idea with statements like “We have that in common, don’t we?”

2.  Gerry suggested that  humans have a  need to be part of a group,  a tribe. We form fan clubs for celeberties, we become fans of atheletic teams, we join clubs and we are motivated to be with others who think alike. That also means we don’t like to be excluded. We have a tribal need which flows  from our idea of survival by group protection. When we began excluding people from the jury we cause aniexty on the part of the jurors  as well as resentment from the excluded juror. Our overall objective in jury selection should not be challenging for cause and exclusion, but,  instead, inclusion. We want the jurors to see  us as part of their tribe, sharing their values and demonstrate that our  case is consistent with those values.

3.  Aren’t we all held to the same standard  of  care, you  and me  and everybody? We wouldn’t give anymore rights to someone than anyone  else gives, would we?Shouldn’t everyone get  the same fair deal  no matter who they are? That sounds fair  to me . Does  it sound  fair to you?

4.  Well, what would you do if you were me? Suppose our roles were reversed. What  if you were the lawyer representing James here and  a juror said to you: “I  don’t people should be suing doctors.”?  What would you say to them as James, lawto me. Does  it sound fair to you? How  do you feel about that?  Why?

I think the most common mistake the demonstrations showed was that (1) lawyers don’t really listen to juror’s answers (2) lawyers have a problem of body language which is inconsistent with their words (3) lawyers  are not comfortable with answers  they don’t like hearing and lawyers think about themselves and  looking good instead  of being natural people.

I watched lawyers break eye contact during an answer and  look away for some  reason. If you clearly want to demonstrate to someone you don’t have any interest in what they are saying break eye contact  while they are talking  and  you might  as well tell them: “I’m  not interested.” It  doesn’t make any difference  if  you are making a note or  whatever your excuse is, it’s always an insult. They also, too often, failure to make clear they heard the person and  acknowledge what  was  said. They do that in a variety of  ways  including ignoring  what was said  and asking  someone else a  question.

Lawyers are not conscious of their facial expressions, hands, posture and body language when they  are talking to make sure  they are congruent. We  know if there is conflict between body language and  words, body language will always be what prevails. Tone  of voice, pace of speaking and body language  must be congruent with  the words you speak to be believed.

The most  common observation  is  how  uncomfortable lawyers were when a juror  gave an answer they didn’t  want to hear. The most common reaction was  to try to argue with juror in a low keyed way, but there is  no way to argue with someone without it being  an argument  and you don’t  make friends  arguing with them. A lot of  the lawyers wanted  to  rush on to some other juror they hoped might give them a better answer. Some were  totally befuddled  and  didn’t know what to do or say but  with their  expression and body language communicated disapproval. None of those reactions will bond you with a juror. The only, and I do mean  only, response that has  any chance of producing a feeling  a common unity  or trust with such a juror is total and full agreement or at at  a minimum acceptance of the right of the juror to feel the  way they do.  If the response is not  totally nonjudgmental the response is  harmful  and the wrong one.

So,  for me, the  rules for jury selection include real, intense listening to jurors  answers. That involves unwavering eye contact as long as they are talking with a  pause when they  are done before breaking  eye contact with that  juror. It involves nodding to signal I am hearing them and any  other body language  to do the same. It involves an acknowledgement of some kind when they are done  and always a nonjudgmental agreement of their right to their position.  There is no way to contaminate a jury panel so don’t  worry about it.

I want my facial expressions, gestures, posture and  tone  of voice to always  match what I am saying. Communication requires congruency of  both.

When the juror attacks the kind of case I’ve brought, or lawyers  like me or a  key issue in my case I can immediately go  into challenge for cause mode. I can try  to show them that they are wrong about me or the case or  the issue. I can do all kinds of  things  in response, but the only correct  response is total calm and a nonjudgmental acceptance of what they said. Not rushing to some other juror, but  talking to the juror about what was said. For example: “Well, I can sure understand  why you feel  that way and I’ve got to  tell you a lot of  other  people feel exactly the same. Not  only that, but I want you  to know we appreciate your sharing  your feelings so honestly about it. Thank you. So, can we  talk some  more about this? etc”  And if it appears  there is  no way  around some serious attitude we discuss what to do about it. Anyway,  that’s how  I handle it. Why? Because there is hope this juror might see this case or issue as an exception and  because I want credibility with the  other jurors. Someone who is credible and willing to listen to everyone. Someone they can trust.

Well, that’s  my lesson for today.  You don’t have to agree with me as  everyone  has  their own style. I can  only tell you it is me.

 

 

 

GERRY SPENCE VOIR DIRE QUESTIONS

I’ve known and admired my friend Gerry Spence for thirty plus years. I’ve been privileged to have been invited to teach at his Trial College in Wyoming every year since it began over a decade ago. He is particularly gifted in the skill of jury selection. He tried a case in October of last year in federal court in Iowa. It involved two black men who had been wrongfully convicted and in prison for some 25 years until their innocence was established and they were released. After a partial settlement the trial went forward against two police officers and the City of Council Bluffs. A mistrial was declared at the conclusion of the case due to conflict about the jury verdict.

What I was interested in was how Gerry would handle the very limited time he was given for jury selection. He did a great job with the time he had. I picked out a few examples of his questions to give you a flavour of his approach. I’ve edited part of this for simplicity.

Here is how he started out:

I have been at this 60 years and every time I start a jury trial, I’m afraid. You would think after all those years that I wouldn’t be that way but I am. (Introduces colleagues and paralegal) we are awfully glad to finally have an opportunity to present our case to an American jury. I think that I speak for all members of our team, and I’m pretty sure that counsel for the defense will agree with me, that were grateful that you’re here. We are proud to be part of the system with you.

We know that our best approach is to first identify with what we understand are the common values of the jurors. We have to be part of their collective values – part of their tribe – and only then can we explore exceptions to our general value beliefs. We first demonstrate we agree with their values and belief. After that we move to whether it is possible there may be some exceptions who fall outside the normal. For example, one might express the idea of being biased in favour of the idea most doctors are decent, hard working careful physicians who have their patient’s best interest at heart. After identifying with the jurors idea, we next suggest it is possible their may be a rare exception or two.  The first thing to observe is that he started out, not asking jurors to contribute information, but rather sharing information about himself first. We know that the principle of reciprocity is a powerful motivator. When we receive a gift we are motivated to reciprocate. When we, as a lawyer, share information first, the jurors are more likely to share honest information back with us. Here is how Gerry approached the idea that most, if not all jurors, would be biased in favour of the police:

I think we have to begin with the proposition that we are all human beings and almost all alike. I want to start off with myself by saying that I have certain biases and certain prejudices, and I don’t think there’s anybody alive that doesn’t have some bias or some prejudice. For example I have a bias in favor of the police. I believe that most cops are good cops. I’ve spent 84 years believing that all most all policeman are good, hard-working, decent, honest people. How many of you agree with that? So that’s my bias. I’ve been a law and order man all my life. And so my question to you is, we are biased in favor of the police to begin with, and you believe, as I do, that most officers are decent and real, but this is a suit against two police officers so can you make room for the possibility that there are, in our system, two police officers before you who don’t fit that mold? How many of you could make room for that possibility?

Another important step in the jury selection process is to deal with sympathy. Jurors will assume that our plan is to offer evidence to gain their sympathy and they resent that idea as an attack on their intelligence as well as their understanding of their role as a judge in the case. We need to affirmatively deal with sympathy in our jury selection and join them in their belief sympathy has no part of the trial. Here’s Gerry:

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?

I believe these few examples illustrate a great lawyer can do with limited time and the inability to interact with the whole jury panel.  My view is that there ares valuable lessons here about human interaction and communication we all can learn from.