If you want to improve your jury selection skills, consider following the example set by the best doctors in your town.
Years ago, when I was looking for a new doctor, my Dad gave me some great advice: “Whatever you do, don’t take health advice from a fat doctor, or from a doctor who smokes.”
Pretty sound advice, right?
But in addition to looking for health care professionals who are actually healthy, here’s another important tip: Find a doctor who knows how to ask questions.
The humorist Will Rogers once said, “The best doctor in the world is the veterinarian. He can’t ask his patients what is the matter – he’s got to just know.” Since you probably don’t want to share the waiting room with a cocker spaniel, you’ll want to choose someone who asks a few more questions. The reason it’s important is because the quality of your doctor’s questions determines the level of care you’ll receive.
For example, let’s say that you injure yourself while training for a beer pong tournament (No, really, it’s a sport! They even wrote about it in Time magazine!). Your elbow is killing you, so you visit the doctor who asks, “How does your elbow feel?”
Unless you’re incredibly articulate or well-versed in medical terminology, you probably won’t do a very good job of describing what’s wrong. If your doctor isn’t psychic, there’s a good chance that he’ll incorrectly diagnose the problem. But a good doctor doesn’t settle for vague, general answers. Instead, he asks follow-up questions to pin down the problem: “Is the pain on the inside or the outside of the elbow? Do you have pain when lifting objects? Does the pain radiate down your forearm? Are you able to straighten or flex your arm?”
By asking you specific questions, he makes it easier for you to answer and provide him with the details he needs to correctly diagnose the problem (“I’m afraid you’ve got Tennis Elbow”) and prescribe the appropriate treatment (“The only way you’ll be able to represent your firm in next week’s beer pong tournament is if you ice it, use the best elbow brace for tennis elbow, and take a series of Cortisone injections.”)
To improve your jury selection, you need to apply the same technique to your questioning.
You know that your goal for jury selection is to get the jurors talking, because the more you get them to open up and talk about the issues that matter to your case, the more you’ll learn about them and the more intelligently you’ll exercise your peremptory strikes. You also know that one of the best techniques for getting jurors to talk is by asking open-ended questions, which prevent the jurors from giving simple “Yes” or “No” responses. Unfortunately, when most attorneys learn about this technique, they try asking completely open-ended questions, with terrible results like this:
You can elicit better responses than this from your jurors during jury selection if you avoid asking questions that are too broad. Instead, give them some guidance about how to answer. Remember, jury selection is a new experience for most of your jurors. Most of them aren’t comfortable speaking in public, let alone answering questions from inquisitive trial lawyers. To learn what they’re thinking, it’s your responsibility to make it easy for them to answer your questions. They need your help, and they need you to guide them to the answer.
Rather than asking completely open ended questions (“How do you feel about the phrase, ‘innocent until proven guilty’?”), ask for more specific information that drills down to the details you’re looking for. Remember to frame your questions in an open-ended format, so that most of your questions begin with “Who,” “What,” “Where,” “How,” “When,” “Why,” “Explain,” or “Tell us…” The most important point is to ensure that you don’t ask for completely narrative answers, but instead, give the juror a little guidance so he has some idea of what he’s expected to say.
Remember, the easier you make it for the jurors to talk to you, the more information they’ll share with you. The more they share, the more you’ll learn about them, and the better your diagnosis will be when it comes time to decide whether or not to exercise a peremptory strike against them.
Editor’s note: By the way, this technique doesn’t just work in jury selection, it will also improve your direct examination. By being more specific, you’ll help your witnesses improve their testimony. It’s much easier for your witness to answer, “Who was the first person to noce a problem with the fetal heart monitor” than “Tell us, what happened next?”