Jury Selection: What Should You Talk About?

Here’s a quick video with tips for improving your jury selection skills.  In this video, you’ll learn how to decide which questions to ask during voir dire, so that you cover the most important issues and can conduct your jury selection in the most effective manner possible.

Saving Jurors from Premature Cause Challenges

Imagine that you’re being audited by the Internal Revenue Service and need to hire an accountant. Since this is such an important decision, you’re going to do a diligent search for the most qualified accountant in your area. You’ll probably pick up the Yellow Pages, look for the accountant with the biggest ad, preferably a full-color advertisement on the back of the book, and immediately schedule your initial consultation. (What? That’s not how you hire someone to perform a critical professional service?!? You’d base your decision on word-of-mouth reputation and the recommendations of your colleagues? Huh… That’s weird.) Walking into his office, you drop two boxes of documents and receipts onto his desk and say, “I’m trusting you with the financial security of my family. I need you to make sure that this audit goes smoothly and keep me out of trouble. Can you do it?”

If he paused for a moment before telling you, “No problem… I think I’m up to the task,” how would you react? Would you leave the boxes on his desk and say, “Thanks! Let me know how the audit goes?” Or would you grab the boxes and run?

Now imagine for a moment that you’re going to the hospital for a minor surgical operation. Moments before they’re about to begin the operation, you hear the doctor tell the nurse, “I’m pretty sure I can do this!”

How would you react? Would you relax, breath deeply, and wait for the surgery to begin? “After all,” you’d think, “it’s only minor surgery — what’s the worst that could happen?”

Probably not, right? Chances are you’d probably jump up from the operating table, rip the IV from your arm, and bolt out of the room.

You’d never accept equivocal answers from the people entrusted with safeguarding your property or your life. Even though it’s only money and only minor surgery, you’d immediately demand a different accountant and a different doctor, because your life is too important to risk on someone who’s “pretty sure” he can do the job.

The same thing is true in the courtroom.

During trial, jurors will be entrusted with safeguarding your client’s money or liberty. To do that, they’ll need to be fair, and they’ll need to follow the law. Yet how many times have you had a juror tell you, “I think I can follow the law?” or “I’m pretty sure I can be fair?”

Usually, these types of responses are just a juror’s honest (albeit conversationally casual) reaction to your questions. It doesn’t necesarily mean the juror won’t be fair, but it’s no guarantee that he will be fair, either. Under the law, these types of answers are considered “equivocal,” which means that either you or your opponent may now be able to strike him for cause by showing the judge that the juror’s equivocal answer raises a reasonable doubt about his ability to be fair or to follow the law.

Getting rid of a juror for cause allows you to use your peremptory strike against another witness, so in reality, a cause challenge is actually worth two strikes. That’s why equivocal answers can be dangerous. A single equivocal answer may give your opponent all the ammunition she needs to strike one of your favorable jurors for cause, saving her precious peremptory strikes to get rid of additional jurors who may be persuaded by your case.

What do you do when a potentially favorable juror gives you an equivocal answer?

Many lawyers try to shove an unequivocal answer down the juror’s throat by “rehabilitating” the jurors. (I’ve been guilty of this in the past). Here’s a typical scenario:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, in the courtroom, the law isn’t really set up to deal with “I think I can” type answers. We like to have more definite answers. Just imagine getting on a plane and the pilot says, “I think I can land this plane safely.” Obviously, you’d have some concerns about whether or not you should fly with him. You’d want a definite answer. Can you give me a more definite answer, Ms. Jones? Can you be fair in this case?

Juror: Yes, I can be fair.

The danger in this type of “rehabilitation” is that the court may still have a doubt about the juror’s ability to be fair. If the judge thinks that the witness’s “Yes” response was merely coerced by your questioning, the witness will still be stricken for cause.

Instead, you need to follow up and let the record reflect how the juror truly feels. One of the best ways to do this is by following up with an open-ended question asking the juror to elaborate on her answer. Here’s are two examples:

Sample 1:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, can you think of any reason why you couldn’t be fair in this case?

Juror: No, there’s no reason I wouldn’t be fair.

Sample 2:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, what concerns do you have about your ability to be fair in this case?

Juror: I can’t think of any reason why I wouldn’t be fair.

By asking the follow-up question, you can save this juror from being improperly stricken for cause, forcing your opponent to use one of her limited peremptory strikes. In the courtroom, you only get one chance to hear from the people who will ultimately decide your client’s fate. Hopefully this tip will help you make the most of it!

Resources:

Outspoken Jurors: A Love/Hate Relationship

Have you ever had juror responses like these?

  • “I can tell just by looking at him that your client is guilty.”
  • “All corporations are evil.”
  • “I think all personal injury lawyers are money hungry ambulance chasers.”

Ouch!  Not exactly the answer you were hoping for, was it?

Sometimes answers like these are a juror’s honest feelings about your case.  Others times, the responses are calculated to get them kicked out of jury duty.  Regardless of the reason why they’re saying it, one thing is certain:

You want this potential juror GONE.

You do NOT want them sitting in judgment of your client.  They hate you, your client, or your case, and you don’t want them on your jury.  In fact, once they give you two or three of those “Get me the hell out of here” statements, you may start feeling like they’re going out of their way to poison your entire jury panel.  At this point, you certainly don’t want to hear anything else they say, because you know that you’re going to kick them off the panel.  It may be for cause, or you may need to use a peremptory strike, but either way, they are outta here. Since you’re definitely going to get rid of them, you probably shouldn’t ask them any more questions, right?

Well…  Maybe not.

Wait a moment before you summarily dismiss them.  That awful juror who you KNOW you’re going to excuse or that your opponent is going to excuse…  they’re still valuable.

Here’s an example.  In one trial that I watched, a potential juror in the front row was going out of her way to get excused.  She did NOT want to be there.  Her bias was so obvious to all of the lawyers that when she started responding to a question the lawyer had posed to the entire panel, he actually interjected and said, “Don’t worry, ma’am, you’re going to be excused.”  (Translation: “The plaintiff doesn’t want you here, the defense doesn’t want you here, even your fellow jurors probably don’t want you here.”)

But then, he let her answer the question.

Sure enough, her answer wasn’t very favorable.  She started talking about how she was upset that money was used as the root of all solutions to jury trials…  She was offended that everyone came into the courtroom with their hand out, looking to recoup money…  This was similar to a premises liability case, so the actual perpetrator wasn’t on trial, so she was offended that he wasn’t there, that only the civil defendant was on trial because they had deep pockets…

No question about it, she had strong opinions, and she felt that everyone in the room was entitled to them.  (Later, I heard a fellow courtroom observer comment, “What a miserable human being!”)

Let me ask you a question.  When a juror like that steps up on their soapbox, what should you do?  Your mom probably taught you that you should look at whoever is talking to you.  Good manners indicates that if you ask this juror a question, you should look at her while she responds, right?

Nope.  Looking at her while she answers would be a lousy idea.  She’s gone.  She’s going to be kicked out for cause.  She is definitely going to be excused.

So don’t waste your time listening to her.  Instead, watch what the other jurors are doing.  You already know what this person thinks.  This is your opportunity to learn what the rest of the panel thinks.  Look for body language clues that can tell you who agrees (or disagrees) with her.  Who is nodding (no matter how slightly) in agreement?  Who crosses their arms?  Who leans forward?  Who leans back?  Who turns their head toward her to pay closer attention?  Who turns away in rejection?

Just because you hate a potential juror, it doesn’t mean you shouldn’t ask him any questions.  There’s almost nothing a potential juror can say that will actually poison the panel.  Just because a juror shares his or her deeply held views, that doesn’t mean he’s going to evangelically “convert” everyone else to his point of view.  Your goal is to find out who else shares that viewpoint, but isn’t as outspoken.  Don’t hate these negative jurors.  Love ’em instead, because they’re giving you valuable insights into the rest of your panel.