The traditional advice and rules about the process of selecting a jury may require revision and rethinking with the impact of virtual trials. When we are not physically present with the jurors and unmasked, some of the established traditional concepts may no longer be applicable or require revision. Here however, are the fundamentals of jury selection much of which still applies no matter how the case is physically tried.
THE PROCESS IS NOT “SELECTING” A JURY
Experienced trial judges and trial lawyers recognize that the process really isn’t “selecting” a jury at all. The jury is already selected when the names are drawn for the panel. Then some of the panel may be excused for no reason or for cause. The result is we don’t really select a jury, we are simply given an opportunity to remove a few jurors from the existing pool of jurors already selected for us.
We should view voir dire as a process to form a bonded group or tribe, which you are a part of, who have a common purpose of supporting your client’s case. It is a total mistake to view the process of finding “bad juror’s” and getting jurors excused for cause. The first is forming a tribe with a common goal. The second is a divisive effort to separate.
The primary goal of jury selection should not be to excuse jurors for cause. It should be to engage this group of people in conversation in order to evaluate them as potential jurors and at the same time establish your credibility.
Contrary to public views about lawyers ethical behavior, honesty and truth are the most powerful force we have as trial lawyers. Jurors search for who they can trust, believe to lead them to the right answer. False acting and attempts at deception will inevitably be seen by jurors. Truth and honesty are equally obvious to jurors. Be honest.
The most important rule in jury selection is to truly listen to what jurors say. Listening is a skill. We miss important facts when we fail to concentrate on the person speaking and what they are saying. Learn to really listen during jury selection. Therefore:
The primary question in the subconscious mind of every juror is: “How does this trial affect me or my family or my “tribe”? Every person is motivated in their primitive brain at a subconscious level by survival instincts and self protection or benefit. Make your case outcome something that protects or benefits them or their family or their “tribe” not merely your client.
The most important goal is to form a like minded bonded group of people you are a part of with a common objective. Therefore, you should not see jury selection as an effort to excuse jurors for cause. It should be to engage this group of people in conversation in order to evaluate them as potential jurors and at the same time establish your credibility. Experienced trial lawyers no longer see voir dire as a time to “educate” a jury about issues or to “persuade” them to your view point. You don’t have time to do that and it’s bad idea anyway based upon jury research
A leader on the jury will direct and dominate the decision making process. Identifying leaders, therefore, becomes an important step in the selection process. If you have more than one strong leader you are likely to have a struggle for domination. That can lead to unreasonable compromise or even a jury unable to reach a majority decision. Evaluation of leaders is very important.
People who revere authority are also dangerous because most are elitist. Compulsive adherence to obedience and dogmatic belief is their hallmark.
Some jurors have an “axe to grind”. Jurors with a cause are very likely to act out their beliefs no matter how much they may assure of their ability to set these aside and be fair. Watch out for jurors who are likely problem jurors because of attitude or demeanor.
You should be looking for jurors who are like your client. People in the same occupation, who like the same things or are a mirror of your client. People identify with other people who have the same interests they do.
The psychological principle of reciprocity is important in jury selection. When we share our feelings first, the jurors are motivated to reciprocate with honest feelings in return. If you want to know how a juror thinks or feels, tell them how you feel first. It can be as simple as saying: “I was always taught the police were our friends and protectors as a child. As an adult, I’ve learned that’s not always true. How do you view the police in general?”
You aren’t going to have time for a “demographic” interrogation to find the juror with the right profile or the juror who fits the age, gender, occupation and other demographic that might seem best for your case. You aren’t going to have time to talk about all the facts in the case nor all the issues. You aren’t going to have a lot of time to talk about tort reform concerns and you aren’t going to change people’s minds about deeply held beliefs. So, you need to focus on the most significant factors and concerns involved in your case. The overall goal is have a conversation with this group of people which informs you about attitudes and creates a credibility bond in the process. So let them talk. A successful voir dire is the juror talking 80% of the time and the lawyer 20%.
It is also important to watch out for and search for the “stealth juror,” that is a juror with an agenda that is deliberately concealed during jury selection, as well as for the “Andy Warhol” juror. That’s a juror who has a concealed ambition for 15 minutes of personal fame by their jury verdict. The juror who doesn’t volunteer, the silent juror, is also a juror to examine for hidden issues or motives.
Explore how strong and compelling a bias is before deciding the action to take. In discussing a juror’s bias we know argument and facts only make the bias stronger. Nor is it possible for the juror to “set it aside” no matter how sincerely they promise to do so. Start with finding aspects of their bias you can agree with and displaying an understanding why they would feel that way. In the process remember the technique of mirroring the juror’s posture, manner of speaking and non verbal aspects which enhance a common relationship. The technique of first assuring that you understand how they feel, followed by an acknowledgement that there are many others who feel exactly the same way, is the best way to start. This is then followed by suggesting that there are “others” who understood a different viewpoint after reviewing other factors., This can be less confrontational way to discuss the bias.
Important ideas for conservatives include the following:
(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) Reject pleas 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
There is only one right way to do that: Free, nonjudgmental discussion and concentrated listening:
Jury research shows these are primary juror motivators, so make sure you communicate your case has each one of these consequences:
Be aware of the known negative bias most people have about personal injury lawsuits and deal with it openly and honestly.
Re enforce generally held affirmative bias as well.
While excusing jurors for cause should never be a primary goal for jury selection, keep in mind there are occasions when it is required.
Keep in mind commitment is a powerful subconscious tool. Once people have taken a firm public stand they are unlikely to change. That means if you get jurors to commit out loud to matters they are very likely to stick to that position.
You need not worry that negative attacks, speeches or rants about your case by a juror will influence the panel. People don’t change their attitudes, values or beliefs by some other persons rant about tort reform or the like. You have to openly discuss those issues rather than try to “shut the juror up” or argue with them or even defend the contrary view.
Above all, during jury selection and the entire trial, always remember jurors decide primarily subconsciously. They do this by forming impressions and emotional reaction, not by logical reasoning. They create a story filtered by their past life experiences, value systems and strong bias. Once an overall general impression is formed it is almost impossible to changed it. The most critical times, in this process begins with jury selection through opening statement.
These are a few of the fundamentals of jury selection. You can’t change first impressions and jury selection is the jury panels first impression of you as well as your case. Learn to do it righj.