Honor the zone of privacy
A "zone of privacy" is the distance between two people in communication where one feels comfortable. Studies have shown that different cultures have different zones of privacy. This depends upon how well the parties know one another. In some cultures, one has to be very close and even touching in some manner to have a comfortable communication. In other cultures the distance may be as much as three feet when first meeting and invasion of that space causes the other to become uncomfortable. In communicating with a jury for the first time, do not put your materials on the jury rail or lean over the jury rail. Try to stay about twelve feet away from the juror you are talking to in jury selection to be absolutely safe you are not invading their zone of privacy. Just as approaching close to a witness during cross examination can make the witness feel uncomfortable by your close presence, you can inadvertently do the same with a prospective juror. Studies have shown that as a bond develops between people the zone of privacy is reduced. They people involved feel more comfortable with each other and allow more closeness as a result.
Listen, listen, listen
In jury selection, as with all other good communication, the first, second and third rules are: listen. Pay attention to what is being said. Focus on the speaker. Listen and concentrate to what is being said as well as to the non verbal language. Put your notes away. Have someone else make notes. Let the juror know you are interested in what they are telling you by your eye contact, your body language and your demeanor.
You will develop more rapport and learn more if you are truly focused on what the person is saying. Maintaining good, comfortable eye contact until the person has totally finished speaking is essential. Do not, mid sentence, start looking at notes for your next question. Do not reflect in your mind, while the juror is speaking, what should I ask next?
This is a conversation, not an interrogation
The cardinal sin of a lawyer during jury selection is to treat the process as an interrogation rather then a conversation between two people. If the juror tells you that their spouse died a month ago, your next statement should not be a question as to their employment. You should do what you would do in a normal conversation with someone you just met at a party. You would acknowledge what they said. You would let them know you heard them. Then you would respond to what they just said. In this case, you would express sympathy and ask some other questions about the subject before moving on to a new subject.
It is essential that your state of mind about this process is that you are having a conversation with people you have just met. You are very interested in what they have to say. As an excellent listener you want them to fully express themselves. You want them to know you are listening by concentrating on them, having continuous eye contact, by pausing when they have finished and then acknowledging that you heard them.
If you feel comfortable doing so, you can also mirror the person speaking to enhance rapport. Mirroring simply means your tone of voice, your pace of speaking, your body posture matches the juror in question. Since people tend to like people who have common interests and ideas, studies have shown that mirroring can encourage more openness and even one’s subconscious attitude about another. Overdoing this concept, however, can produce the opposite result. Discretion should be used.
Thank them for the answer you didn’t want to hear
The idea that a person expressing an opinion harmful to your case can contaminate the panel has been debunked by studies. People do not change their values or beliefs about important issues merely because someone expresses their opinion about it. If you want to know who to excuse from the panel, you need to know their core values and beliefs. That is more important to know then demographic information such as employment, marital etc. You cannot know their core values unless you ask the right questions and then allow full answers even if the answers show bias against your case or the tort system.
You should practice reinforcing honest answers to encourage all of the jurors to disclose how they really feel and not just give answers they think you want to hear. You do that by first sincerely thanking them for the answer and their honesty. Then you tell them that this is exactly what you are asking from the jury – total honesty. Next you say that there are probably others who feel exactly the same way and you ask "How many of you agree with Mr. Jones?" By this process you have identified a group of potential problem jurors thanks to the negative answer given by this juror.
Instead of arguing with this juror, you should then ask "How many of you disagree with Mr. Jones?" Find someone who disagrees and ask them to explain fully why they disagree. Let the jurors make the argument against the viewpoint – not you.
Make it brief
Walk into any courtroom and listen to the lawyer asking questions in jury selection. The questions usually are not questions. They are speeches. Long, boring and confusing. Precious, limited time wasted in words upon words rather then in jurors expressing opinions. Your questions should be very short and open ended. The answers should always be longer then the question. Your questions should not be instructions to them about your case. They should be questions about issues in your case that go to the jurors value system.
Remember your pace & the impact of silence
When we are nervous we talk too fast. You should make a conscious effort to slow your rate of speech down to the point you think you are talking too slow, especially when you are starting jury selection. Don’t forget pauses between their answer and your next question. This is not a rapid fire interrogation. It’s a conversation. It’s perfectly OK to pause and reflect on an answer. Silence has a huge impact in a court room where the usual pace is rapid communication. A slow pace is relaxing and shows self confidence as well as professionalism.