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.