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At our mediations, we talk a lot about juries.
What a jury is likely to do with a case, and how jurors would react to particular issues and witnesses, are constant considerations. That’s how we determine case value.
(A big question now, with Trump’s many silent supporters, is whether jurors will be different and how that should impact voir dire. Should we take on or sidestep these hot-button diversity issues? That remains to be seen.)
Jury selection has been found to be lawyers’ least favorite part of a trial. That’s a shame, because it can really be fun if approached correctly. My advice: Take the pressure off yourself.
Stop saying that jury selection is the most important part of a trial. Stop trying so hard to divine who will vote for your side and who won’t.
If you treat voir dire more like a dinner party where you get to hear a lot of interesting and different stories from people you would never otherwise meet, you’ll find it much more enjoyable and you will actually connect to your jurors.
Judges hate bad jury selection. Watching lawyers do it poorly is frustrating and upsetting. Frankly, that’s why some judges take it over from the lawyers: They know they can do it better and faster.
And the lawyers often want the judge to do it! What those lawyers miss is the opportunity to really explore key issues and the opportunity to connect to the people they need most at trial.
As much as possible, do your own jury selection. And when you do, here are a few “don’ts”:
- Don’t keep asking the jurors if they can be fair. If you see your trial judge reaching for the Pepto-Bismol, it’s probably because you’ve asked this multiple times.
In the first place, the judge asks it in every trial. Worse, everyone knows it’s a totally hypocritical question. Everyone knows you don’t want fair jurors. If you had fair jurors, you might actually lose. You want jurors who are going to vote and advocate for your side and help you get the best result. (That’s your job!)
Please don’t ask this stupid question. Instead, ask, “Is there anything else you think we should know about you?” Then stop and listen.
- Don’t ask, “Do you want to serve?” Be prepared to duck when the judge throws the gavel if you ask this terrible question.
First, it doesn’t matter if they want to serve or not. It’s their duty to serve — they don’t have a choice. Second, and the reason judges really hate this question: It gets the whole venire thinking they have a choice. It causes nothing but problems and yields no useful information.
- Don’t ask, “Do you have time to serve?” or “Are you well enough to serve?” Hopefully when these questions really need to be asked, they will be asked in chambers. Always ask your judge before you launch into these delicate questions.
- Don’t ask, “How did you vote in your previous jury trial?” The answer is frankly no more of your business than how they voted in the last election. Even if you can get it past your trial judge, you shouldn’t. Respect the sanctity of juror deliberations.
- Don’t cross-examine your jurors. This is a great method to get everyone in the courtroom sick of you. The jurors will all get defensive and see you as a bully trying to trick them into saying something they don’t agree with.
The judge will hate it. Even your opponent will think you’re not being fair to him. In voir dire, more than any other time in your trial, don’t act like a lawyer. Act like a normal person having a normal conversation.
- Don’t argue with jurors. Ever. This is another surefire way to get the entire venire against you. Only do it if you’re being paid by the other side.
- Don’t say, “I just have a couple of questions” or “I’m going to be very brief.” If you say it and you’re not, you’re a fool. If you really are brief, you don’t need to emphasize the obvious.
- Don’t interrupt jurors. If the judge doesn’t intervene and unless they’re really giving way too much information, let them talk. If you have a tight time limit, just say, “Thanks for sharing that. Now let’s hear from some of the other jurors.”
- Don’t fail to sincerely thank a juror for speaking out about something harmful to your case. Everyone knows what you really want to say when you get a hostile answer. Don’t. You asked them to be honest.
In fact, voir dire is the only time in the courtroom when the judge tells someone they must be completely honest. Do everything you possibly can to encourage honest, open answers. Answering questions in public is embarrassing; giving any answer must feel like a risk to a juror.
All the other panelists will watch how an honest answer plays. If a juror tells you he believes the exact opposite of what you want, you have to thank him for doing what you asked. Otherwise, none of the other jurors will want to be honest.
- Don’t fail to listen closely. This is the time to hear what they have to say. It’s the only time you’ll hear from them until after their verdict, unless you get juror questions. Let them talk. Listen carefully. Interact appropriately.
- Don’t ask about anything unrelated to the key themes or issues. Voir dire time is more like dental time than hot fudge sundae time. It seems much longer than it is. Use your time very carefully.
Don’t expect to cover every issue. Just hit the most important, most controversial issues to learn what they think.
- Don’t fail to review your judge’s voir dire policies and ask in advance about anything that might be questionable. Most judges have heard so much bad voir dire that their tolerance is pretty low. Make sure you discuss time limits and their exceptions before you start.
Listen carefully. Get your few key issues on the table, good or bad. Make your best pre-emptory decisions and make your causation challenges. Then use the information you learn to shape your presentation — and be sure to include actual words from the jurors or from your opponent.
Most important, have fun with jury selection. Jurors should leave voir dire eager to hear the case, as if they had just seen the trailer of a fascinating movie. Your jurors will love you for that. So will your judge.