Jury selection is an art that requires preparation and careful planning. Jury selection and opening statement can have a profound influence on the outcome of the case. They are twin events that should be prepared as a unit. Here some very general and basic ideas to consider in planning your voir dire of your case.
*Jury selection is almost always limited in time. It’s important to plan your questions with the time allowed in mind. Determine the priority of importance and the time available to cover the subjects.
*Have one sheet of paper with topics you want to cover – simple topics
*Let someone else take notes. Maintain eye contact
*The first lawyer that reminds the jury that they are a lawyer by their demeanor, talk and attitude will likely lose the case. Follow a policy of not acting and talking like a lawyer and instead identify with the jurors.
IDEAS ABOUT JURY SELECTION
*It is a conversation and not an interrogation. Get them talking. Follow the practice of not allowing yourself to say anything at the end of a jurors response until you have taken a full breath in and out. You will find that this will result in correct timing and will actually move things more quickly in the long run. You should be talking about 20% of the time and the jurors 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, and you must be non-judgmental by commending their honesty. Project credibility by acceptance of their responses negative or not.
*You want to know values and significant life experiences which you can only find out by getting them to talk themselves.
*Study the juror’s body language. When words and actions conflict, actions control 93% of the time. nonverbal communication controls over words spoken
• Keep in mind that conservatives generally have the following values. Use them in framing the issues in the case you discuss with them:
(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)Results should not be 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
GENERAL JUROR PROFILES
The following are general characteristics to be looking for in jury selection:
(1)Leaders – They can influence the other jurors
(2)Authoritarians – They are deferential to authority figures like doctors
(3)People with an axe to grind on any subject – always dangerous on a jury
(4)Neutrals – have no relevant bias and generally go along with others.
IMPORTANT FACTS ABOUT JURORS
Keep in mind these facts during jury selection:
(1)Once people have taken a firm public position on a subject they are unlikely to change their mind. That means if you get jurors to commit to a position or issue they are very likely to stick to that position. This can also be an important method of disqualifying a juror e.g. “This is not a case you feel you should serve on
(2)People search for the rules to guide them in deciding case. Tell them the rules of the case.
(3)Significant past experiences are significant in forming opinions.
(4)Strongly held bias, beliefs and values will control their opinions irrespective of facts and evidence.
SUBJECTS TO COVER ON VOIR DIRE
1.Discuss the primary issues, positive and negative in your case. Arrange issues by priority of importance. With time limits, 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
POINTS TO COVER ON VOIR DIRE
4.Burden of proof: Preponderance means more probably true then not
5.Causation. Discuss defendant foreseeability
6.Economic vs non-economic damage
7.Importance of case and power of jury to set standards by verdict
Discussion phrases include the following: (See David Ball suggestions in book Damages)
*There are two areas Id 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?
*Use phrases to encourage discussion:
(1)Tell us more about that
(2)How is that important to you?
(3)Can you make room for the possibility that….?
*Use looping questions i.e. 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 is position do you favor?
Take the time to plan your voir dire. Prepare for it by using focus group studies, in appropriate
cases, to determine the primary issues, both negative and positive in your case. Prepare how you
will frame or describe the issues in discussing with the jury. Outline your opening statement
from the same approach.