Your jurors might not have a clue!

Improve your jury selection with better questioning

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:

Attorney: “What do you think about the presumption of innocence?”Juror: “Um… It’s good?”

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?”

Do You Look Dishonest?

How to avoid looking like a liar

Let’s start with a few assumptions about the witness in your next case.

First, let’s assume that your witness saw everything relevant to the case.

Second, let’s assume that your witness has a good memory and a good vocabulary, so she’ll be able to remember and describe everything that she experienced.

And finally, let’s assume that she’ll tell the truth.

With all of those assumptions, you probably think that your jurors will automatically believe her, right?


The sad reality of the situation is that, even if your witness is telling the truth, that’s not enough to guarantee that your jurors will believe her.  That’s because, even though she’s telling the truth, she can still look like she’s lying.  And if your jurors think she’s lying, then she is.

As the trial lawyer, it’s not enough for you to stick a witness in the witness stand and have them tell the truth.  You need to help your witness avoid looking dishonest.  Here are some of the behaviors that jurors will be looking for when deciding whether or not a witness is telling the truth:

  • Touching your face.
  • Stroking your hair
  • Playing with your jewelry or a watch
  • Wringing your hands
  • Rubbing your palms on your legs
  • Pursing your lips
  • Blocking your eyes (closing them tightly, covering your eyes with your hands)
  • Turning your body away from the questioner
  • Evading the question; not giving direct answers

Finally, eye contact is going to be one of the most important behaviors that jurors will evaluate when deciding whether or not to believe your witness.  Most of us have been raised on the adage, “Never trust someone who won’t look you in the eye.”  Of course, in some cultures, making eye contact is disrespectful, so lack of eye contact, on its own, isnt enough to determine whether or not someone is lying.  However, if your witness is maintaining eye contact during other parts of testimony, it’s probably going to seem like they’re lying if they suddenly stop making eye contact during the more damaging parts of their testimony.  But the converse is true, too.  Sometimes liars know that they’re not looking at you, so they’ll overcompensate and stare at you.  When you’re on the receiving end, it feels creepy.

While it’s impossible to completely re-vamp your witness’s body behaviors (since she’ll end up acting artificially, which means the jurors will assume she’s lying), at least you can help her to minimize some of the more obvious negative body language.

One of the best ways to help your witness understand how body language affects their credibility is to videotape them during a mock cross-examination or mock trial run, and then have them sit and watch the entire video from beginning to end.  Many witnesses have never seen themselves on video before, so they’ll be surprised at how distracting some of their behaviors appear.

Obviously the subject of how body language affects credibility is too large a topic to cover in a single article, so if you’re serious about helping your witnesses understand how body language affects their credibility, check out these books for some good pointers on how to identify dishonest body language:

Never Be Lied to Again, by David Lieberman

What Every Body is Saying, by Joe Navarro

Telling Lies, by Paul Ekman

Why should jurors believe your witness?

Why should jurors believe your witness?

“I saw the defendant sitting at the table.   Suddenly, he reached over to the next table, grabbed the salt shaker, and threw it at the stage.   The shaker hit the lead singer in the left eye, who screamed and fell off the stage, holding his eye.”

If you were trying to prove that the defendant had hit your client with a salt shaker, would this be enough proof?   Or would the jury have some doubts about the testimony?   If this were the only testimony the jury heard, consider the questions they might have about the testimony:

  • “Why should we believe him?”
  • “How do we know he saw what he says he saw?”
  • “Where was he located when he saw the shaker thrown?”
  • “What is his ability to remember or recollect the events?”
  • “Why was he paying attention to the defendant rather than watching the stage?”
  • “What was the lighting like? How much could he see?
  • “Is there any history between the witness and the defendant?”
  • “Were there any obstructions between the witness and the defendant?”
  • “How close or far away was he when the shaker was thrown?”
  • “Does he have any interest in the outcome of this trial?”

And that’s before he’s even cross-examined! Why do they have so many questions? Because you didn’t take the time to establish the witness’s vantage point – his ability to see, hear, or know the things about which he testified.

Consider a situation where a single event would generate thousands of vantage points:

It’s the playoffs and you’re watching your favorite football team.   If they win this game, you’re going to the Super Bowl.   Your team is trailing by five points, there are two seconds left, and this is the final play of the game.   After hiking the ball, the quarterback dodges a tackler.   He scrambles, hoping to find an open receiver.   Looking downfield, he lets loose and throws a 60 yard bomb.   Your star receiver breaks free into the end zone and leaps higher than he’s ever leaped before.   Reaching out while in flight, he makes a perfect, one-handed catch!

But then, you see the referee.   He’s waving his arms and signaling that the receiver caught the ball out of bounds.   The game is over – your arch rivals have won, and they’re going to the Super Bowl.   You and 65,000 other fans in the stadium erupt with rage.   “You’re blind, you rotten ref!” is the nicest comment you would hear.

But a moment later, watching the replay on the Jumbo-Tron, you see the receiver’s left foot land on the white stripe.  The referee was right – the receiver was out of bounds when he came down with the ball.

Unfortunately, in trial, we never get the benefits of an instant replay.   To best tell our witness’s story, we need to show why they have the ability to see, hear, or know the things they’re testifying about.   If you were telling this same story to the jury, you wouldn’t start by having the referee describe what he saw to the jury.   You’d start by showing that the referee was in the best position and had the best ability to see what happened.   Here are some of the things you’d want to establish before he told the jury about the catch:

  • What is his ability to see?   Does he have 20/20 vision?
  • How close was he to the action?
  • Where is he trained to position himself on the playing field?
  • What is he trained to look for?
  • Why is it important that he follow his training?
  • Where was he positioned?
  • Were any other players in his way?
  • Where was his attention focused?

By highlighting his ability to observe before asking him what he saw, the jury can place greater weight on his testimony.   In your case, consider the strength of your witness’s vantage point.   Does the witness have any special skills that helped them view, remember, or interpret the event? Does the witness have any special training, perceptive skills, knowledge, experience, or unique skills that allow them to see these events better than the ordinary person?   If so, teach the jury about those skills before you ask him what he saw, and your jury will understand why they need to believe your witness’s version of events.