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.