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.





  1. Too smart, HarryB. They don’t like the intelligent ones they come in with their own peeircved notion of right and wrong. Too hard for an attorney to manipulate.I, not being nearly as smart as you sat in on a jury. It was an honor. Took us a few days and the state did a *horrible* job of providing evidence. I was shocked at the number of people who were willing to convict this girl on *character* evidence (she had gone to a bar by herself, so, therefore, ergo, she was more likely to drive drunk on a different day.) Very interesting time, it was.OK. Question for you. How do you do that traceback? I have tried a couple of times, but, I don’t find it. lol I’ll go post there, too, and see how it goes over here.(Hey that was cool I wasn’t able to accurately add 5 and 2, so, it didn’t save my comment. But, I went out to coComment and retrieved it, so, here I am without retyping!)

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