Eric Oliver is a long time friend and a very experienced jury consultant. http://www.eric-oliver.com/ He wrote an article about communications “Heard Mentality.” Some of the observations Eric made are important to remember in our practice and are summarized below:
- Jurors begin their understanding of our story with a theme. We all make sense of case stories by starting at the most general level and working down to details. A theme provides a general direction. If you do not provide a theme, the jurors will provide one for you.
- “Waiting until we get our strong evidence in” before providing a theme or fundamental direction is a mistake because the listeners will not wait and will begin as soon as the story is started. That’s human nature.
- “Hindsight bias” is the tendency for individuals who already know the outcome to exaggerate their ability to have seen what was coming and to have avoided the outcome. People overestimate both the likelihood of the known outcome and their ability to see it happening. It is important to deal with this bias in jury selection.
- The key factors involved when jurors are evaluating a trial story involve life experiences and values. Beliefs, biases, sympathy and prejudice influence people when evaluating information. These are often the product of deeply held values. Learning significant life experiences and deeply held values tells us the likelihood of how a juror will evaluate the facts of the case.Value beliefs are indicated when jurors make statements that begin “doctors should; people must; the manufacturer ought to; the company could have; everybody knows that; or anyone could’ve seen.”
- In jury selection he recommends rapport through mirroring verbal and nonverbal communication with the jurors. Active listening involves showing and acting as if you were interested in the answer.
- He suggests keeping the subject more general than specific, especially at the start of each new topic to encourage discussion. He admonishes that we should listen at least twice as much as we talk. He cautions that we should detail only as many specific case facts as are absolutely necessary. Most of all, he says, that the real voir dire doesn’t start until the second follow-up question of the juror. He believes it’s usually the second follow-up question which has the best chance of revealing the most about the actual feeling of the person.
- Eric quotes Houston attorney Howard Nations in referring to the start of the questioning through the end of the first witness in the case as the “primacy portion” of the case. That’s because by that point, each juror has formed their basic theme, selected the primary and less important actions and characters as well as beginning to assign meanings and motives. The process is not consciously done however.
- The selection of the theme is important. One case of malpractice used the overall theme of “preventing harm.” The rhetorical question was “did he really do all he could to keep his patient safe from harm?”Other examples include “David and Goliath” or “arrogance” and Proverbs such as “an ounce of prevention is worth a pound of cure” or “covering all the bases.”
- Potential jurors bring to the jury selection process beliefs, attitudes and biases about negative defense ideas like inevitable accidents, hindsight, personal responsibility and other bias or beliefs. Exploring to expose these attitudes is an important part of jury selection through questioning. Questions should be general as possible and free from implied expected responses.
- Questions beginning with “what, how, what about that stands out for you and how do you see that for yourself?” are helpful in exploring attitudes and values. Eric believes that “why” questions result in the juror defending a bias and having them harden rather than giving open answers.
- Eric says that he would eliminate the use of the word “any” in all of its forms in jury selection: “Does anybody here think; is there anyone here who feels; would you have any problem;” are all questions which do not lead to any meaningful answer but signal an expected response. Instead you should start questions with phrases like “who thinks; what do you feel; how many of you agree that; or who here has a similar feeling” encourage accurate responses. Questions like “what is important about; why do we need; what do you expect when; how do you know when; or how can you decide if?” are good value questions as well. Follow up with “who here has similar or slightly similar views? rather than “who agrees with Mr. Casey?”
- We can encourage discussion by giving approval by telling jurors “since the subject matter is your own opinion, every answer is right, as long as it’s honest and complete. The only wrong answers are “I don’t know” or “I agree with her” since your opinions are your own and known only to you.”
In most jurisdictions where lawyer questioning is allowed of the jury, the time allowed for jury selection is very limited. We no long have the leisure of wasting time in the process. We need to carefully plan our approach, determine the priority issues and give thoughtful consideration to the language we use in asking. We need to be mindful of our nonverbal posture, language and our listening skills. We need to learn proper mirroring for repport and the techniques of good communication. We only have one chance to make a good first impression and a lasting one.