CREATIVE AND EFFECTIVE JURY SELECTION: THE KEY IS TO REALLY LISTEN

by E. Marcus Davis, Esq.

Introduction

     Jury selection is one of the most important components of the case.  Many experienced lawyers believe that after the voir dire and the opening, if effective, a successful outcome of the case is assured.

Both beginning and experienced trial lawyers must devote intensive thought, imagination, preparation and practice to the jury selection phase of the case in order to maximize their chances of winning the case.  Preparation should begin long before the trial.  Consider practice sessions asking your voir dire questions to your staff, family, focus group, friends, etc., days or weeks prior to the trial.  If you are not able to strike enough problematic jurors who are opposed to your side of the case, the case will be lost no matter how excellent your trial presentation is.

Setting the Scene

     Your alarm goes off at 6 a.m. sharp.  It is the first day of the trial. You quickly and nervously get out of bed and head to the shower. You feel a certain tightness in your chest. Your mouth is dry. You had hoped to start the first day of trial feeling refreshed but then you awakened at 3 a.m. with your mind racing. You were thinking about the questions you would ask the jury. You worried about whether you would be able to ascertain which jurors would be toxic for your case. You knew that there would be several jurors on the panel (tort reformers or those with religious beliefs opposed to personal injury trials) who would be against any kind of personal injury case and especially one that had the challenges of your case. You fretted about whether you would be able to ask pointed enough questions to ferret out the “tort reform” jurors without alienating the whole panel. Then you thought about your new approach to jury selection. This time I’m really going to listen to them!  Unfortunately, as you stared at your bedroom ceiling in the dark, sleep eluded you.

“What a strange system,” you think. “I’m about to meet for the first time a room full of strangers and interrogate them about deeply personal matters. They know that my whole purpose is to judge them, to find reasons to exclude them. I know that they will be judging me. too You worry about crazy things. Which car should I drive to court? Is my suit too expensive looking? Which watch should I wear? Should I wear the blue tie or the red tie? They say that red is a power tie and I want to be powerful with this jury, but not so powerful that I alienate them. If I wear the red tie they might I think I’m a Republican, and that could alienate the Democrats. If I wear the blue tie, I might alienate the Republicans. I don’t want the jury to know what political party I prefer because it might alienate members of the other. Our country is so polarized, and I don’t want the jury to think that I fall into either camp.” As Dale Carnegie says, “If you want people to like you don’t discuss religion or politics.”

As the hot water in the shower beats down on you, your noisy inner chatter about the voir dire continues. You think, “I wish my mind would shut up and give me some peace. It’s bad enough that my mind kept me up all night and now this!”

“I know I want to be authentic with this jury, but I’m afraid. What if the jury doesn’t like me, doesn’t like my authentic self? Then what? Does the jury reject my case?”

My old friend Gary Christy, former district attorney and Hardy Gregory’s law partner, used to tell the students in the ICLE program Trial Skills Clinic, which we taught together in Athens for years, “Be yourself, unless yourself is an asshole!”

“Man I hope they like me!”

You put on your freshly starched shirt and your freshly shined trial shoes. You comb your freshly trimmed hair, gulp down some cereal, some orange juice and a cup of coffee. Combined with the stress, the orange juice and the coffee create an acidic feeling in your stomach.

Your bright eyed daughter says, “Good luck dad. I know you will win. You almost always do. You have a good case.” You think,” I sure hope she is right!”

Your spouse says, “Good luck honey, I know you will do fine. You’re prepared and you have a good case.”

You say, “I can’t believe how nervous I am. I have done this 100 times at least and every time it is the same. Before it starts I’m so nervous I could throw up. It sure seems like I would be used to it by now and calm down.”

You get to the courthouse so early that you are able to park on one of the first floors of the parking garage. You get to the courtroom so early that you have to ask the judge’s secretary to unlock the door for you. You sit down and start going over your notes for jury selection. The tightness in the chest is still there and is getting worse. You flip over the pages in your jury selection notebook and fret over this question and that. You think,

“Why in the world did I have to get into a business that requires public speaking.  I hate public speaking. I’d rather jump out of an airplane than stand up in front of a jury of people I don’t know and start asking questions.”

After a while people start to wander into the courtroom. Here comes your opposing counsel and his associate. Here comes the bailiff and a couple of sheriff’s deputies.

You put on the brave front that you have honed to a fine art in your many trials. To your opponent, it looks like you are no more nervous than if you were about to do something routine, rather than starting a really important trial. You make small talk with the bailiff, mostly to calm yourself and make sure that your voice works okay and that it doesn’t crack when you try to speak.

After a while the court reporter arrives and asks for your business card. You make small talk with her, all the while thinking, “I sure hope I don’t have to order a transcript from this lady after this trial is over!”

After the usual preliminaries, the jury selection gets underway. During the first few questions, you are tense and your voice seems halting, at least to you. Maybe the jury doesn’t notice.

After a couple of years of preparation, and a solid two months of trial preparation, pretrial is finally underway. Your adrenaline settles down to a manageable level and you are glad to have the energy and alertness that the adrenaline gives you. “Okay,” you say to yourself, “We’re off to the races!”

You look down at the big letters on the note card in front of you that you wrote the night before. On the card you see one word – “LISTEN!”

If you take time to think about what a jury trial is all about, it’s scary:  “The jury trial is the apotheosis of the amateur. Why should anyone think that twelve persons brought in from the street, selected in various ways for their lack of general ability, should have any special capacity for deciding controversies between persons?”

Stressful Part of Trial: Lawyers’ “Stage Fright”

Mark Twain said that two of the most awful experiences for a human being are seasickness and stage fright. At the start of the trial during jury selection, most of us haven’t done any public speaking in a while (maybe since our last trial) and stage fright rears its ugly head. We all experience the tightness in the chest, the sweaty palms, the unsteady voice, and the nervousness.  Fortunately the feeling passes after the first few questions for the jury.  In talking to my friends and colleagues about jury selection, most say that it is one of the most stressful parts of the trial. One lawyer says, “I feel naked out there.”  Another says, “I know they are judging me.”  Yet another states, “I feel phony. I feel like I’m putting on an act and they can see right through me.”  One says, “I worry that I’m going to turn off the jury before the trial even gets started.”  Yet another says, “I feel like an impostor.”

Fear in the Courtroom: Just imagine How the Juror Feels

     Courthouses are scary places. There are a lot of officers wearing guns and handcuffs present.  Judges sometimes have a reputation of biting the heads off of lawyers and prospective jurors. Courtrooms are places where people lose their freedom, custody of their children, sometimes lose cases that they feel have merit and so forth. Sometimes people are even sentenced to death in courtrooms.

     While we may not have done any public speaking in a while, most prospective jurors never engage in public speaking. When they arrive at the courthouse they know that they are going to be questioned by a lawyer in front of a lot of strangers. They fear that the lawyer may ask a lot of personal questions which may embarrass them. They fear that they may look stupid in front of the other jurors. They feel that the lawyer may argue with them about their opinions. They may want to be chosen for the jury, but fear they will be rejected.

     Most people appearing for jury duty feel that they are doing something important. They don’t want to be discounted.  The jury members have a desire for belonging to a group. They want to feel a sense of being connected as an important element of an organization. They want a sense of contributing to something important and lasting with their verdict. They want a feeling of being included and asked for input. They want to feel special. They don’t want to be part of an embarrassing result. They want to be proud of their verdict. They want to be able to share the verdict with their friends. In the jury selection process, they don’t want to be dominated by the lawyer or to be made to look like an impostor or a fool. They want their opinions to be validated and acknowledged. They want to be understood. They don’t want to be criticized. They want to be acknowledged for having higher intentions in sitting on the jury. They want things to go smoothly in the jury deliberation. They want the other jury members to listen to them and respect their opinions. Their minds are awash with these thoughts.

Their underlying common fears are common to people in any situation and especially jurors. Everybody fears being revealed or feeling inadequate for the job at hand.  In dealing with the new situation of being on a jury, a prospective juror may feel panic not knowing how to engage in this unfamiliar process. They fear being perceived as “less than” they usually present themselves to be in ordinary situations. They may feel the possibility of being hurt or rejected or of being misunderstood.  They may fear other members of the jury will disconnect from them or discount their opinions.

So when selecting the jury, we need to give grace and compassion for the prospective jury members as they undergo the ordeal of being questioned by lawyers and face the possibility of playing a role in an important new arena: the jury trial. The jurors want to be known in this setting for the outstanding value may bring to the process of deciding a case. They want to feel appreciated, known, respected and fit in.

In July 2004 a new public opinion poll indicated that Americans hold a profound belief and trust in the jury system. More than 58% consider jury duty a privilege, as well as a responsibility they look forward to fulfilling – with those who had previously been called as jurors showing the strongest belief in the system.

Goals of Voir Dire

     The main purpose of voir dire is to establish the right atmosphere and the right kind of communication that makes it safe for prospective jurors to communicate honestly and further compels them to answer questions honestly so that the whole purpose of jury selection is not subverted. Additional goals include the lawyer beginning to establish rapport with the jury and starting the process of establishing himself or herself as one of the trusted leaders of a group which is involved in making decisions about complex issues such as harms and damages and the extent thereof, credibility of witnesses, blame, rules of conduct or industries and the violations thereof, scientific principles as applied to certain facts, standards of care, etc.  While the jury foreperson is technically the leader of the jury, the judge and the lawyers also play a leadership role, but only if the jury determines that they are trustworthy and knowledgeable.

Each member of a jury has a different set of experiences, a different set of influences, and has a unique story and reaction to his life experiences that is uniquely his own. It is our job to understand the story and to develop the story of our case in a way that is understood favorably and consistently according to the unique facts and circumstances of each jury member’s life.

Listen… Really Listen

    The most important part of our job in jury selection is “to listen,” and I mean really listen. The lawyer must also make it clear to the prospective jury member that he or she is really listening. Part of the task of listening is to listen to the words that are being spoken, while another part is to be attuned to the juror’s body language, but perhaps a more important part of listening is to be open and interested in what is being communicated. Unfortunately our idea of listening might be simply not talking while the other person is talking, and sometimes focusing more on what we want to say next while the other person is talking. We may be reading our next question on our list of voir dire questions, instead of listening to the prospective juror. In the voir dire setting, lawyers are frequently focusing on their notes about the next question they are going to ask and don’t hear what the perspective juror just said in answer to the question they just asked. The result is that we don’t absorb the content of what the other person is saying; we don’t ask follow-up questions, and the opportunity is lost to explore whether this person will be open to the plaintiff’s story of the case or whether he or she will be close-minded and against the case and should be deselected through the process of voir dire. Examples of this might include: after a juror describes a childhood tragedy, the lawyer simply nods, continuing, “Anyone else?” The juror realizes that he or she has not been heard and may be offended. The lawyer has missed a critical opportunity to find out attitudes and opinions which might affect the juror’s deliberation in the case. When asked about their opinion about the level of care doctors give, a juror responds, “On the whole they do a pretty good job.”  Not asking a follow-up question, the lawyer moves on to another juror having missed the critical words, “on the whole,” which implies that they don’t always give good care and the juror probably has examples from his own life that he or she would like to share! In a malpractice trial a prospective juror might say “a person has a right to sue, but maybe doctors get sued too much, so I’d expect you to prove it beyond a reasonable doubt.” Rather than exploring the juror’s “prove beyond a reasonable doubt” opinion and thereby educating the prospective juror as well as the other jurors in a gentle way that the only proof required is more likely than not, the lawyer pounces and moves to disqualify the juror for cause. In a criminal trial maybe the lawyer asked the prospective juror, “Would you have any problem if a defendant didn’t testify at all?” The prospective juror replies, “Oh, not really.” The defense attorney moves on assuming agreement, but missing the emotional content implied in the “not really” part of the answer which really meant, “I would have a problem if the defendant did not testify.”

There are “stealth jurors” who intend to get on the case so they can act based upon their personal belief system or political agenda. They may prejudge the type of case and have no intention of listening to both sides of the issues. A recent high publicity trial also made much of stealth jurors who lie to get on juries, then enact their own form of justice.

On March 10, 2004, the judge in the Oklahoma murder trial of Terry Nichols was faced with allegations by one prospective juror that others were willing to lie to get on the jury. One potential juror heard another potential juror brag,” I’ll do whatever it takes to get up there. I’m going to say what I can to get on the jury. My decision is already made.” Hence we have to do our best at finding out if any of our prospective jurors are “stealth jurors,” maybe virulent tort reformers who want to get on our case to ruin the verdict for our client.

What Is Voir Dire?

     Voir dire is that portion of the trial where the jury is selected from a panel of prospective jurors drawn from the community in which the court is located. The purpose of voir dire is that persons selected to hear the case will be able to render a fair and impartial verdict. Of course the mechanism for accomplishing this goal is to put the jurors under oath and examine them on matters concerning their ability to decide the case impartially. The most important job for us as the advocate is to eliminate from the panel those individuals who are unsympathetic to our client’s case. This is easier said than done.

One of the other purposes of jury selection is to impart selected information to the jurors in the hope that they will be favorably indoctrinated to your side of the case. This part of the voir dire is giving information to the jury, rather than gathering information from them.

Another goal might be to ask prospective jurors about the weaknesses of your case in an effort to ferret out and deselect those who would hold this weakness against your client in deciding the case.

Preparation

     Some people think that jury selection is the most important part of the case. Famous trial lawyer Gerry Spence has said that after voir dire and opening statement he expects to already have won his case. Jury selection offers lawyers the opportunity to educate the jury about some of the broad themes of the case. More importantly it offers lawyers the opportunity to deselect unfavorable jury members who have preconceived opinions and prejudices about the facts and circumstances of the case or about the rules of conduct and standards that govern the case in such a manner that they would never vote for the plaintiff and could sway the other jury members towards an adverse verdict or persuade the other jury members to reduce the amount of the verdict.

Because the selection of the jury is so important, it might be worthwhile to start thinking about jury selection from the very beginning of your handling of the case. For some lawyers jury selection is something that is thought about and prepared for only a day or two before trial.  Maybe written questions from a previous trial are used without much thought about the challenging or unusual facts and circumstances which must be dealt with in this case which you are about to try. Some lawyers place such little emphasis on the importance of voir dire that they put off preparation until the last minute.

If you are not able to strike enough jurors for cause or using your peremptory strikes effectively, then you may end up with too many unfavorable jurors who sabotage your case. When you get an important case it’s a good idea to start jotting down notes for voir dire and opening statement right away.  Maybe keep a notepad on your nightstand for this purpose.

How To Approach the Subject of Jury Selection

     It is important to ask yourself certain fundamental questions before planning and preparing the voir dire:

  1. Am I willing to listen to the jurors?
  2. What is my case about?
  3. What about my case scares me? Am I willing to discuss those issues honestly with the jury? What are the problems with my case that I hope to overcome?
  4. What do I think the jury will be troubled by and how will they react to me, my case, my client?
  5. What type of juror do I want?
  6. What type of juror scares me?
  7. What kind of juror do I want to try to challenge for cause, or failing that, use a peremptory strike to exclude? How will I approach that process so as to not come across as mean spirited, arrogant, hostile or judgmental?
  8. How do I convince the judge that what I am trying to do in voir dire is legitimate? Do I feel empowered, or am I approaching this process feeling hemmed in, afraid of the judge and jury and defeated before I ever start?
  9. Am I willing to just be myself and not mimic someone else or try to be “lawyer man” or “lawyer woman?”  Am I willing to communicate honestly and not come across as patronizing or fake out of fear and my desire to control and manipulate?  Am I willing to believe that I am actually good enough and adequate for the job at hand, even though I wasn’t first in my law school class  and didn’t win the moot court competition?
  10. How can I use voir dire to condition the jury as to the important issues of the case, help the leaders on the jury to shine and begin to set up alliances with me and other jurors?
  11. How can I help the jurors who are sometimes excluded and rejected as outsiders feel valued and included as part of the winning team?
  12. How do I find the jurors who are prejudiced against my case, since I will never, ever take their prejudices away by arguing with them, “educating” them or belittling them in front of other jurors?  How can I enlist the aid of the prejudiced juror to educate the others by having others on the jury disagree with them and express other points of view for me without doing it directly?
  13. How do I discover who the “common enemy” of the jury is?
  14. Am I willing to practice my voir dire with friends, family or paid shadow jury so that I will be relaxed and spontaneous when the voir dire actually starts?
  15. How can I avoid being ambushed by the silent juror who doesn’t answer questions but harbors opinions detrimental to my case and whose goal in getting on the jury is to sabotage the Plaintiff’s case?

“Many potential jurors mistakenly believe the civil justice system is out of control with runaway verdicts and a congested court dockets brought about by a ‘sue-happy society.’  Such jurors must be identified and removed from the panel.”

Old-school Nonsense-Stereotypes Don’t Work

   When I first started practicing law I read all kinds of books about jury selection. Some authors would stress the importance of stereotyping. African-Americans and Hispanics make good plaintiffs’ jurors. Scandinavian descendants make bad plaintiffs’ jurors. Retired military and police and make bad jurors. Accountants and engineers make bad jurors. Teachers and social workers make good jurors, and so on. I believe that I have learned and most of you have learned that stereotyping is worthless. People are people. People’s experiences have more to do with how they see the world and how they will judge the case than where their ancestors were born. Ethnic and other stereotypes are so diluted and watered down by people’s life experiences, the number of years since certain ethnic types immigrated to the United States, etc., that the best thing to do is just make no pre-judgments based upon such and just ask your questions.  Don’t ask trite questions like, “Will you be fair to my client?”  Who the heck is going to say no to that question?

Be Yourself

     The principle skill of the trial lawyer is honest effective communication. Your approach to jury selection sets the whole tone of the case and defines you and how your message will be received by the jury from the outset. Are you real and authentic or are you trying to be someone you are not? Try not to talk “at” the jury. Focus on just having a conversation. Try to make the juror feel that he or she is just as important as you are and that his or her opinions are just as valid as anyone else’s. Make it clear to the prospective juror that you respect his or her opinions. Don’t talk to the jury panel is if they are a monolithic block of people. They are all individuals and each of them is different. You have to be genuinely interested in each and every one of the prospective jurors. Their minds are a crazy quilt of all that they have been taught, all that they have experienced, and all that they have been told by preachers, spouses, radio talking heads, newscasters, editorialists, advertisers, etc.

Be Vulnerable

     Be honest and tell them: “I want to tell you that I am scared about my case.  I am afraid you will not like my client, he/she is not attractive, has a criminal record and that you won’t be able to put that out of your mind in figuring out if he was harmed and damaged by malpractice. I’m afraid you won’t like my client because she has six children by six different fathers. Maybe I shouldn’t have even taken this case – What do you think?  I am afraid I may not be adequate for this job and my client will be hurt because of it and won’t get a fair shake because of it.  What do you think?  Well guess what, the juror is now thinking you are just as afraid as he or she is and the beginning of an honest relationship is starting.  The jurors are afraid and they are glad to hear you are too!  Be vulnerable.

Realize that just as you have a hard time listening, so do prospective jurors. Lawyers have a hard time listening to what jurors are communicating to them for various reasons. The lawyer may be suffering from cognitive overload.  He or she may be thinking, “Where is my first witness. He was supposed to be here 30 minutes ago.” “How is the judge going to rule on my motion in limine?” “How am I going to find the time to interview that new client during this trial?” Similarly the jurors may be very distracted by personal problems, job complications: “Who is going to watch Hannah when she gets home from school?” etc.

Ask jurors if it would pose a hardship for them to be selected on the case. “Would it help us in our decision of whether to select you for this jury by honestly telling us how many important things in your life need your attention right now in addition to this trial? How many times has your mind already drifted to pay attention to those issues outside the courtroom? Would it be fair to say that you can’t turn these distractions off because these health problems are so important to you? Wouldn’t make it hard for you to pay attention to this case?”

Bear in mind in the voir dire as well as in the trial, that the speed people speak is approximately 100 to 150 words per minute which is far slower than the 600 words per minute which is the rate at which people think. People’s minds become impatient with slow talking and they fill themselves up with an inner chatter consisting of worry, daydreaming, thinking about the past, worrying about the future, etc. It takes real effort to stay in the present so as to understand what is going on in the trial and what information is being presented.  So don’t waste time.  Speed it up as long as you are not going too fast for the jury to listen. Don’t ask trite questions that don’t give you useful information.

Establish Rapport with the Jury

     It is important to carry on your voir dire as you would any conversation by establishing a few common interests or life experiences between you and the juror as they answer your questions.  Let them know you are one of them and that you are down to earth, approachable and sincere.  Tell them a little bit about you, your background, your work and your family.  Share some of your weaknesses and vulnerabilities so that it won’t appear that you are not one of them.  Do the same for your client.  Usually your opponent will want to do the same thing, so he or she won’t object.  Dress appropriately, but not too flashy or expensively.  Forget the jewelry.  Leave the Mercedes at home.  Remember you want to be one of them, not to be perceived as above them, or play into some awful lawyer stereotype.  Use “plain speaking” language.  Using legalese or an overly formal speech pattern or “speechifying” will only serve to distance you from the jury.

Establishing the Themes of Your Case

     Smart lawyers have said that you should win your case by the end of voir dire and opening statement.  One of the ways to effectively work toward that goal is to establish coherent themes of your case which you will carry through from voir dire, to opening, to direct, to cross, to closing. A coherent theory of your side of the case should be woven into the voir dire questions, headnotes or bullet points, to alert the jury to the themes and concepts of the case. “Do any of you know of anyone who was harmed by a doctor during kidney surgery?”  Have you ever heard the carpenter’s saying, “Measure twice, cut once.”

How to Really Listen to the Juror

     Let’s face it, when you start asking those questions of the jury and the individual jurors, it’s a scary time.  You are afraid a juror may “poison” the whole panel and make you lose the trial with one horrific answer.  You bristle and become angry at their rant about “jackpot justice,” the “McDonald’s coffee case,” “greedy trial lawyers,” the “loopholes” that let defendants go free.  Your fear and anger shows in your body language and your condemning, argumentative or judgmental tone of voice.

Why Not Try a New Approach

     Why not curiously listen then, instead of defensively correct, advise, argue or explain? When we try to talk a juror out of a bias or prejudice, it will never work. All we do is harden their intransigent position and make ourselves look bad. Remember, the goal is to deselect the jurors with prejudice against your case through challenges for cause or with peremptory challenges. If you want honest answers from the juror you are currently questioning, as well as the others waiting their turn, you must tread gently.

Here’s a suggested way to do it:

1. Keep your heart and your good intentions turned toward them, even when their heart is turned from you by doing the following:

a. Set aside your critical judgments and/or conclusions about their intentions, behaviors and feelings;

b. Set aside your personal agenda and your attachment to outcome;

c. Acknowledge and set aside your emotional reaction, e.g. fear, anger, judgment, condemnation to their opinion and ask genuinely curious and compassionate questions about their opinions and why they feel as they do.

The method and types of questions are subject to the discretion of the trial court.  Hypothetical questions are usually not allowed if the purpose is to have the jurors indicate what their decisions will be under a certain set of circumstances, evidence or facts.  But hypothetical questions which attempt to determine that the juror’s mind is free of preconceived convictions are proper and allowed.

2. First and foremost ask “open-ended” questions. You must forget how angry you are about tort reform and the erosion of our civil liberties and “listen.” Be genuinely interested in finding out why the juror feels as he does. Using their words and repeating some back to them (the psychological technique of mirroring), ask them to help you understand what they mean and why they feel that way. Be genuinely curious, like you are a news reporter from another country or an author. Ask them how they see it or feel it specifically. Be truly curious about how they arrived at their opinions. Remember, that their opinion and feelings are as valid as your own and in your case, more important than yours, because they have the power to decide the case.

3. Let them talk a lot. They are not used to having someone listen to them without defending, correcting, solutioning, or “me-tooing” them.  They may get more “worked up” before they wind down, but after a while they will begin to hear themselves and a little self-assessment and wisdom may creep in, when they don’t have to spend so much energy defending their position to you.

4. Listen for the integrity of their point of view and what you can learn about them to make you more compassionate for their situation and why they hold their opinions and prejudices (our characterization).

5. Be present and make the juror feel as though they have been fully heard. There is an incredible amount of respect and loyalty that may develop from that type of listening. How rare it is for human beings to feel that from another.

Don’t try to argue with them or correct them. Just listen and encourage them to talk some more. Try building a partnership with the jurors by having an expansive conversation. The goal is to curiously inquire for more information. Add to what you “see” with what the other person “sees” and seek to give them additional information which could build a framework for a shared goal represented by a favorable verdict. Work together toward some shared higher purpose. Be curious about what you don’t know and don’t assume you know the other person’s intent. You have to be genuine and demonstrate the energy of genuine curiosity. Use their words, repeated back to them (mirroring), in follow up questions, so that they will know you are interested and listening. Try to shift your orientation from certainty to curiosity, from simplicity to complexity and, most importantly, from “either or” to “both.” Try to develop an interest in “how it is” for another and how their information and opinion could give you a wider view. The goal is to build partnership by ending the arrogance of superior/inferior. Shared understanding is about appreciating and legitimizing another’s view vs. agreeing or disagreeing with them. You can then draw out their honest opinions with your sincere and respectful curiosity, so that you can decide whether or not you want them on your team or whether you need to exclude them. Many jurors treated in this fashion will not fight you on the questions obviously setting them up for a challenge for cause (you know it and they know it), because of the respectful listening that you have given them. People want to be heard and connect and to be valued and acknowledged. Be genuinely curious, understanding that you don’t know their world. Demonstrate that you want to understand what they think and feel by asking open-ended questions.

How to Listen

      One of the most important things to do in jury selection communication is to share your humanness and admit that you also have certain prejudices and perhaps irrational opinions. Admit your own flaws and mistakes. Admit your ignorance about certain things. Admit that you wouldn’t be a good juror in certain types of cases. Admit that you’re afraid and frightened about the outcome of your case. Admit that you are fearful that you might not do a good job for your client. Find out what’s important to the jury member. Don’t give advice or try to educate them about why their opinion is wrong. The more we give advice the less we are trusted .People are afraid of not being understood. Make sure to make them feel that you understand where they’re coming from with their opinions. Find out what is important and their values behind their opinions. You can enhance your relationship better with the jury by not being an “advice giver.” For example don’t tell the jury why they are wrong in their opinion about the McDonald’s coffee case. Tell them you were shocked about the McDonald’s coffee verdict too until you learned some more about it.

When you’re questioning a prospective juror turn your heart towards that person. Think to yourself, “I am curious for any unknown information they have. I wonder what hurt and fear or experience they are dealing with that led them to this opinion/conclusion.” You can never develop a relationship with your jury by trying to change another’s opinion. It is none of your business to do that.

Remember that the juror has a desire to make a difference and contribute .They want to feel that they have a voice in this important matter. They want to protect justice. They want to feel valued, important and respected .They have a desire to belong to a larger whole. They want to feel a sense of being connected as an important element of a larger whole. They want a sense of building something important and lasting .They want a feeling of being included and they want to be asked for input.

Knowing these desires of the prospective juror, it is most important to treat them kindly and with respect. Since they may become a part of your team they need to be assured of your good intentions and your respect starting with how you handle your interactions with them in the jury selection.

Thoughts on Open-Ended and Validating Questions

     Open-ended questions are questions that give the other person broad latitude to answer from their own wisdom. By asking open-ended questions, you do not bias the answer or distract the other person’s thinking by the need to process your ideas.  You elicit more information this way than in “yes” or “no” questions.  Let them direct their response towards what is important for them, not you.  You may think that their world is like your world, but it is never exactly like yours.  Typical open-ended questions are variations on “tell me more” and “help me understand better.”

 

These are some examples of open-ended and validating questions:

You told us about the bad experience that your father had with the doctor.

How did he and your family deal with that?

What effect did that situation have on your dad?

What was important to you about that situation?

How did the way they dealt with your father make you feel?

What did you expect to be done that was not done?

What impact does that have on your father and your family?

What matters to you most about a family member’s interaction with a doctor?

What rules and standards of care he expected Dr. to follow?

Should there be consequences if the Dr. doesn’t follow the rules?

What should the consequences be?

What was the experience like for you and your father?

How would you like an experience with your father and your doctor to go next time?

What did you learn from this experience?

Would you do anything differently next time?

Do you think this different approach might work?

Do you think the outcome might be different?

Are there other options?

Do you think the legal system has a role in a situation like this?

What do you think the role of the legal system should be in a situation like your dad’s?

Don’t Ask Me Why

     Generally “why” questions to jurors don’t work. Actually, “why” questions don’t work that well in any human relations. When we ask somebody a “why” question, it typically puts them back into a situation of their childhood when they were being interrogated by a parent or other authority figure after they did something wrong. “Why were you speeding?” “Why did you drink and drive?” “What the hell were you thinking?” “Why didn’t you finish your homework and turn it in?” “Why didn’t you study harder?”’ “Why didn’t you get home on time?” “Why didn’t you answer your phone?”

“Why” questions are often asked in a tone of irritation or disgust. They tend to leave people feeling backed into a corner. If you can get out of the habit of using “whys” in jury selection, and in life for that matter, such as with your teenage children, and into the habit of using compassionate, open-ended, validating questions ,your prospective jurors will be more likely to open up to you.  You’ll accomplish far more if you get interested in learning “What happened?” or “How do you feel about that?”

The key to open- ended and validating phrases and questions is that they do not contain any hidden answers, and they do not include your interpretations or agenda. Likewise, if you supply an answer within a question you could miss the real meaning, which the juror would otherwise convey.

For example if you say, “What happened to your child must make you really angry,” you might make the person feel compelled to “feel” what you suggest. It might be better to ask, “What are your feelings about that?” or “What comes up for you when you think about that?” In jury selection if you want to learn about your juror, don’t fill in the blanks for them. Don’t draw on their canvas. Let them tell about their life experience. Don’t impose upon them what you think their perception of the experience should be. It’s their life, not yours.

Is it any different when we ask, “Why do you believe in tort reform?” “Why do you think a doctor shouldn’t be sued?” “Why do you think lawsuits are driving doctors out of business?” “Why do you think punitive damages shouldn’t be given in a lawsuit?” “Why do you think there should be limits on lawsuit awards?”  Why not ask, “How do you feel about medical malpractice lawsuits against doctors?” “What were the circumstances that caused you to believe tort reform is a good idea?” “What are your feelings about awarding money for pain-and-suffering?” “What are your feelings about awarding money when a wrong has caused the death of someone?”

Open ended and validating questions are designed to learn more about the person or the situation. The key resides in your genuine interest in the other person in the conversation and your sincerity. When you ask,” What do you think can be done about that?”  You leave the responsibility where it belongs and encourage the person to come up with a personal solution that will work for him or her in their life and hopefully you can figure out what their approach would be in the context of this case .

The art of questioning is worth all the effort and practice it may take. It is the way that people on the prospective jury will know that you care about them and that you respect what they have to say. “Remember that if you ask “why” your question suggests that you know the answer already.  It is the same thing as including the words “should” or “ought to” in your question. These kinds of words shut down all meaningful communication and you will not be able to learn anything useful toward your decisions in selecting the jury.

Building Partnerships with the Jury by Having an Expansive Conversation

     Having an expansive conversation with the jury shifts you from protecting and projecting the knowledge and opinions that you already have, to being genuinely curious to learn and discover the opinions of the prospective juror and what his or her life experience is. The goal is to find shared humanity and thereby intersect in common viewpoints that you share. Another goal is to both hear and listen to each other, appreciating “how it is” for each of you. Shift your orientation from certainty about your views and opinions to curiosity about the other person’s opinions. Try to shift from debate and argument to exploring “how it is” for the juror. Try to think about opinions as not “either or” but perhaps “and both.” Try to come to some sense of shared understanding. Try to open yourself up to understanding differences to give you a wider view for how life is for another and how their information and their experiences could give you a wider view of life as it relates to your case. Thereby you can build a partnership by ending what may be your arrogance and possible feeling of superiority towards the juror. Try to listen with curiosity for the facts and circumstances of the juror’s life that allow you both to generate expanded points of view and appreciate what shapes their opinions and actions. Remember that shared understanding is more about legitimizing and appreciating another’s view, versus either agreeing or disagreeing with them .As you discover your shared humanity and experience, you can lay the groundwork for team-building which can lead to a positive outcome for your client .Try to see commonality with the jurors rather than differences. Try to recognize the limitations of domination and judgment over the jury member and strive to be openly curious and inquire about his or her life. Realize that everybody and especially people on a jury want to be heard and connect with others involved in the process. Know how they want to be valued and make a difference.  Be sensitive to the fact that in the jury selection process and in the deliberation they have a fear of being revealed as an impostor, inadequate for the job at hand, rejected and excluded.

Inquiring with Genuine Curiosity

     If you start with the proposition that everybody involved in a jury trial has a higher purpose, it is interesting to think about all the ways in which the players can work together to achieve the purpose. Even in the face of disagreement, everybody can seek common ground intersections at the intention/purpose level. This opens us up to new possibilities in jury selection.

Expansive Conversation with the Juror

     When you have an expansive conversation you have to be curious about what you don’t know that will expand your viewpoint. You don’t assume that you know the other person’s intent, and you have an appreciation for the way they process information based upon their experiences as different from how you process information based upon your experiences. To shift into an expansive and inclusive conversation in which you can learn more about other people, you must leave behind your reactive listing which lets go of the idea that “I already know” and filters everything from the perspective of “right or wrong” or “agree disagree.” In engaging in an expansive conversation with prospective jurors you’re curious. You might use open-ended questions with the energy of genuine curiosity. Open-ended means there is no embedded conclusion or direction in the question.  You transform the conversation when you fully engage and listen to discover something new, not to persuade the person on the other end of the conversation to go with your point of view. You try to listen deeply to the other person and ask questions designed to discover how it is in their world.  Listen for their words and ask questions using their words. By doing this you are listening for something new that you don’t already know.  Your judgments and preconceptions about the prospective juror are meaningless.

How are you feeling about all of this?

What are your feelings about…?

What matters most to you about that?

What are your ideas about that? What would that look like?

What more can you say about that so I can understand?

Tell me what you mean by that.

Can you give me an example?

Can you say a little more about how you see that situation?

Please tell me more about how you see it.

What feelings do you have about it?

With this approach you’re more interested in finding out how the juror feels and sees, instead of assuming and concluding that you know what they feel or see. You are genuinely curious, realizing that you don’t know their world, you demonstrate that you want to understand what they think and feel by asking open-ended questions.  Don’t use questions to cross-examine them.  Instead, think about how you can see the integrity of their viewpoint, even though it’s different from yours.  Think about how you can appreciate what you don’t know about their experience that is shaping their actions and opinions

Share your Frailties and Humanness

     Because in the trial you are an authority figure, you will be perceived as being  in a superior role. You are assumed to have more income, education, etc., because of your position as a lawyer. However, if you share vulnerability about your fears in the situation, you can create common ground with the jury. This can create more intimacy and open communication and invite the juror to share more about themselves with you. When you tell stories about your own frailties and weaknesses, or your own failures, this allows you to create a partnership. Take yourself off the pedestal and get down off your high horse. Be on the level with the jury. Talk about difficult or embarrassing life situations that you have had. Try not to reject the other person and turn your interest and heart away from them when they express behaviors attitudes and opinions that anger or irritate you. Try to stay with the notion that their life experiences have been different and this is the reason for their differing opinions. Realize that if your life experience had been the same as theirs, you might have the same opinions that they do. Get rid of the inflated virtues of you and the inflated faults of the prospective juror. If you don’t openly communicate, your perceptions of the perspective juror may be completely wrong think about what you can learn from this person and how you can reach common ground.

In Real Listening It’s Not All About You

     A lot of times when we are listening to what a prospective juror is saying, the focus is on yourself: your thoughts, your judgments, your feelings, your conclusions and your fears about what this person might do or not do if they get on the jury. You listen but only through the filter of, “How does this person affect me and my case?” If you try to focus your attention totally on the prospective juror, you listen for their words, their expressions, their emotions, their life experiences and everything else, you notice what they say and how they say it.  You notice what they don’t say or what they partially say. You ask follow up questions. You notice their facial expressions .You listen for their concerns .You’re interested in them, unattached from the outcome of the trial for the moment. You listen from curiosity rather than judgment and manipulation and try to appreciate another human being’s life there front of you. You glean the information coming from them and try not to filter it through your own fears and needs about that the case. Be curious about what you don’t know.  Ask questions that clarify and help you gather more information.  Don’t let the static in your mind interfere with what they are trying to tell you.  Just listen. Listen from the perspective of, “people are whole and valid just as they are, not people are flawed.”  Genuinely listen to other people’s concerns. Think about how alike the juror and you are, not how different.

Get a feel for whether you like them or at least something about them and can work with them for a common goal. The most important principal is to ask the questions designed to find out, “Who are the people prejudiced against my case? Why?” We will never be able to take their prejudices away. Hence, we must make them feel safe to tell us their true beliefs and opinions without fear of scorn or judgment from us or anyone else in the courtroom. We have to draw them out being very vulnerable.  Speaking one’s humanity and fears is the best way to go about it. Don’t assume silence means agreement. Make an effort to get the silent ones to talk.

In talking with your prospective jurors, get a feel for whether you like them and can work with them for a common goal.  The most important principal is to ask the questions designed to find out, “Who are the people prejudiced against my case?  Why?”  We will never be able to take their prejudices away.  Hence, we must make them feel safe to tell us their true beliefs and opinions without fear of scorn or judgment from us or anyone else in the courtroom.  We have to draw them out by being very vulnerable.

Excusing Jurors With Fixed and Formed Opinions

     The best way to accomplish this goal is to make it safe for jurors to express their honest opinions and to gently lead them into the concession that it really would be better for all concerned for a person with such valid and well thought out and reasonable and wise, (but nonetheless such a “fixed and formed” opinion that it would never change no matter what the evidence shows), to be excused from jury service. Besides, most folks with these really hard-core “fixed and formed” opinions in our society are just too darned important to be tied up in the business of sitting on a jury. Many of them will leap at the chance to be excused for cause, if you only will treat them with respect. Don’t make them feel attacked and put down by your cause challenge. These are proud, accomplished people. You don’t want them to feel that if they are challenged for cause they are foolish or you have dominated them and that you win and they lose. If you make them feel this way, they will figure out a way not to be challenged for cause and later vote against your client in deliberations.

Ask a question like this: “Mr. Jones, you have told us that you feel we would have to prove the doctor was negligent by proof beyond a reasonable doubt and that proof by a preponderance of the evidence, or more likely than not, just makes it too easy on us and hard on the doctor. In fairness, wouldn’t you agree that your opinion on that is so fixed and formed that it is unlikely to change no matter what happens in the case.”

Usually, the busy business person, or the tort reformer will spot an “escape” in those stilted words “fixed” and “formed” and seize upon it as his or her ticket out of the courtroom and back to the high paying, important job. Crucial to this outcome is establishing a communication dynamic and atmosphere where it is not a contest of wills between you and a prospective juror, but instead a respectful, low key, genuinely interested exchange of ideas. If you get the jurors “back up” odds are he or she is staying on that jury no matter what. The judge’s rehabilitative question, “You will follow the law, won’t you?” is just too easy a “save” for your opponent, once the juror is riled up and wants to spite you by getting on the jury and sabotaging your case.

Challenges for Cause

     Challenges for cause are extremely important. You will almost never have enough peremptory challenges left to deselect the problem jurors unless you can effectively utilize some cause challenges. The only way to enhance your odds of success is to become adept at striking jurors for cause. The number of peremptory challenges is limited, but the number of challenges for cause is not.

Generally there are two categories for challenging the juror for cause, principal/per se challenges and challenges for favor. The only way to enhance your odds of success is to become adept at striking jurors for cause.  The best way to accomplish this goal is to make it safe for jurors to express their honest opinions and to gently lead them into the concession that it really would be better for all concerned for a person with such valid and well thought out (but nonetheless such a fixed and formed opinion that it would never change no matter what the evidence shows), to be excused from jury service.

Challenges to individual jurors for cause may be based on the ground that there is a leaning or bias on the part of the juror for or against one of the parties. Perry v. State, 264 Ga, 524, 448 S.E.2d 444 (1994)…

The decision to excuse a potential juror for cause lies within the sound discretion of the trial court and a prospective juror may be excused for cause when the juror holds an opinion about the case which is so fixed that the juror will be unable to set it aside.  Rucker v. State, 270 Ga. 431, 510 S.E.2d 816 (1999).

…the determination of whether a challenge for cause should be allowed rests within the sound discretion of the trial court.  The court’s ruling will not be disturbed unless it has clearly abused its discretion.

Cox v. State, 17 Ga. App. 727, 88 S.E. 214 (1916).

Principal/Per Se Challenges

     These challenges are well-founded in law and statute.  Per se challenges include:

1. O.C.G.A. §15-12-134.  Challenge of juror in civil case for desire or expression of opinion as to which party should prevail…

In all civil cases it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed. Upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness. The court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon.

To be successful at challenging for cause under this statute, the evidence must demonstrate that the juror’s opinions are fixed, and the juror is incapable of objectively weighing the evidence.

The Georgia Court of Appeals re-evaluated the previously often-used practice of jury rehabilitation in Walls v. Kim, 250 Ga. App. 259 259, 549 S.E.2d 797 (2001):

….”Isn’t it true that you can set aside your bias or learning to X party and render a true and fair verdict based upon the evidence and the charge given by the Court?”

…As the Court of Appeals held in Walls, “[a] trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because, in reality, the trial judge is the only person in the courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury.”  Id. (emphasis added).  Contrary to and as opposed to rehabilitation, “the better practice is for judges simply to use their discretion to remove such potential jurors, even when the question of a particular juror’s impartiality is a very close call.” Id. (emphasis added).

Running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial…In the interest of fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.

2.  O.C.G.A.§15-12-135.  Disqualification for relationship to interested party.

(a) All trial jurors in the courts of this state shall be disqualified to act or serve in

any case or matter when such jurors are related by consanguinity or affinity

to any party interested in the result of the case or matter within the sixth

degree as computed according to the civil law. Relationship more remote

shall not be a disqualification…

This statute is not limited to just kinship, but also jurors who have a relationship with a party or are related to a person having a close connection with a party or the outcome of the case.  Additionally, a party is considered related by marriage to blood relatives of his spouse but not to people his spouse is related to only by marriage.  For example, the wife of the spouse’s uncle would not be disqualified under this code section.

Challenges for favor include other relationships not delineated in O.C.G.A. §15-12-135.

Challenges for Favor

     Challenges for favor include all jurors who have given counsel reasonable basis for apprehension of partiality or bias. Challenges for favor are rarely reversed because the appellate courts give great deference to the Trial Court’s discretion and will only be reversed upon a finding of “manifest abuse” of that discretion.

To preserve an appeal for failure to strike the best practice is to exhaust all peremptory challenges and make your objections to the panel before the jury is sworn or they may be waived.

O.C.G.A.§15-12-133 states:

In all civil cases the parties thereto shall have the right to an

Individual examination of the panel of jurors from which the jury is to

be selected, without interposing any challenge…In the examination,

the counsel for either party shall have the right to inquire of the

individual jurors examined touching any matter or thing which would

illustrate any interest of the juror in the case, including any opinion as

to which party ought to prevail, the relationship or acquaintance of

the juror with the parties or counsel therefor, any fact or

circumstance indicating any inclination, leaning, or bias which the

juror might have respecting the subject matter of the action or the

counsel or parties thereto, and the religious, social, and fraternal

connections of the juror.

This statute forms the basis for most challenges for favor/bias.

Almost any relationship or bias may be grounds for disqualification if it raises a reasonable apprehension of partiality or pre-judgment.  Some examples of challenges for favor are:

a.  Racial prejudice;

b.  Leaning or bias for or against one party;

c.  Size of the verdict (counsel may inquire in general terms as to a jurors feelings

or bias toward “large verdicts” but may not ask the juror to commit to a specific

amount or range);

d.  Stockholders and relatives of corporate party or insurance company with

financial exposure;

e.  Employees of a party;

f.  Relationship to any insurance company with potential exposure in the case;

g. Fixed opinions as to any material fact as to the parties, the subject matter of the

case or credibility of witnesses;

h. Inability to set aside impressions or opinions based upon pre-trial publicity.

Additionally, the Supreme Court decision in Kim v. Walls, 275 Ga. 177 (2002) changed the trend of “rehabilitating” jurors who were brave enough to be honest about potential biases only to be subjected to a “browbeating” by counsel or the trial court.  The Court in Kim held that when “a prospective juror has a relationship with a party to the case that is either close or subordinate, or one that suggests bias, the trial court must do more than ‘rehabilitate’ the juror through the use of any talismanic question.”

The Court further admonished trial courts to err on the side of dismissing a juror rather than trying to rehabilitate biased jurors. Id.

Peremptory Challenges

     The scope of voir dire is not limited to the subjects which constitute grounds for sustaining a challenge for cause.  Voir dire may also inquire into subjects which reveal bias or prejudice towards a party or issue to be tried.

The number of peremptory strikes depends on the number of jurors being seated for trial.  All civil matters pending before the State Courts of Georgia are tried to a jury panel of six members, unless there is a minimum claim for damages in excess of $25,000, and then the case may be heard by twelve jurors by request of either party.  Civil cases before the Superior Courts of Georgia are heard by a panel of twelve jurors.  In cases heard by a six-member jury each side has three peremptory strikes.  In cases heard by a twelve-member jury each side has six strikes.  The parties alternate strikes, with the Plaintiff striking first.

If alternate jurors are being selected, each party has one additional peremptory challenge to be used only in the selection of the alternates.

The Foreperson Often Controls the Outcome of the Case; Choose Wisely

     When identifying and selecting the foreperson, ask your open ended questions.  Ask them some question that will allow them the opportunity “to shine” in the eyes of other jurors.  Show them deference.  Pay attention to the deference other jurors pay to certain members of the panel.  Be very careful to ascertain which possible forepersons hold negative opinions about your client on your case and be sure to use your strikes to exclude them.

One of the most important tasks of a jury is to pick a leader.  How do you think that should be done?  Do you think a person that volunteers to be leader would be the best, or maybe someone who wouldn’t volunteer would be best?  Do you think that the jury foreperson would be someone who would facilitate listening to all points of view, or someone who would dominate the conversation?  Do you think it is possible that the leader can influence the verdict in the case?  How?  Why?

Batson Issues

     You should be aware of Batson issues when using peremptory challenges.  Batson v. Kentucky holds that deliberate exclusion of members of a particular political group, economic group, race, sex, religious faith, etc. violates due process and equal protection.  The burden is on the person who feels they have been unfairly excluded to establish the Batson issue, and then the burden shifts to the striking party to establish a neutral basis for the strike.

Persuading the Judge that Your Methods and Purpose are Legitimate

     When you think about the questions you really need to ask in voir dire, you might think, “Well a judge wouldn’t really let me ask those in a trial.” If you approach the task with that attitude, it will probably become a self-fulfilling prophecy. If you think you can’t do it, you probably won’t try, or your effort will be half-hearted. Your energy will telegraph tentativeness and that you are not sure of yourself and don’t believe in what you are doing. Consider approaching it head-on with the judge before you start the voir dire: “Judge, we have a tough row to hoe in this political climate. You know that most medical malpractice cases have been lost by plaintiffs in this state. It is extremely difficult for a plaintiff to get a fair shake in a legitimate medical malpractice case. The reason is the jury pool has been influenced and conditioned by the relentless drum beat of corporate advertising, political mailings and pronouncements by everyone from the President of the United States, to the Governor, to the Speaker of the House to talk show hosts and others about “frivolous lawsuits,” “jackpot justice,” “running doctors out of business,” “greedy plaintiff’s lawyers,” “malpractice cases causing everyone’s health insurance premiums to go up,” and the like. We need some latitude in inquiring into those matters to get a fair trial. We won’t waste your time and the juror’s time with silly questions. We respectfully ask your discretion to allow us to go into those matters and of course, if you don’t feel our purpose is legitimate, rein us in. We want to explore those matters and inquire into those matters. We want a fair trial and, in this climate, it is exceedingly difficult to get one.”

Demonstrate impeccable intent in this regard. Use this approach to also advocate for the use of a jury questionnaire.  Stress to the judge that a jury questionnaire can save in court time.

The Use of Notes

     Notes are sometimes an impediment to communication when either reading notes or making notes.  When you look at the notes and think of the next written question, rather than listening to the answer and framing the next question by incorporating words from the last answer, you tend to miss the whole world of nonverbal communication: the scowl, the tight body position, the harsh tone of voice, the tight insincere smile, all of which speaks volumes of information that you don’t want to miss.  You also may miss the part of the answer, the nuances, that should prompt you to ask follow-up questions. Take a lawyer or staff person in your office with you to take notes so that you don’t have to.  When you use and over use notes, you are looking down, not at the juror.  Not making eye contact is an impediment to effective communication.

Discussing the “Pink Elephant in the Living Room”

     Ask questions about the issues which are of most concern to you. Devote considerable time to thinking about what the jury will be concerned about with your case and how you can effectively bring those issues out for open discussion. Those issues are in the jurors’ minds anyway, so do not be too afraid to talk about the “pink elephant” in the living room. Not talking about “the pink elephant” is not going to make him go away. Don’t worry about poisoning the whole jury. You should try to get a commitment from the jury to not consider the prejudicial elements of your case before they come back to haunt you in deliberation. The ignored “pink elephant” will most definitely be a topic of conversation in the jury room.

Example A:

“You know it worries me that Akeem is the product of a mixed race marriage. I am afraid you might disapprove of it and it might hurt Akeem’s case, even though the fact that he is of mixed race has nothing to do with how he became quadriplegic. How do you feel about that?”

Example B:

“You know my client has a criminal record. That doesn’t have anything to do with how he got malpracticed upon, but I am worried that he won’t get a fair shake. How do you feel about that?”

Example C:

“My client had a gambling addiction in years past and I am worried that you will reject his case because of that. How do you feel about that?

Example D:

“Are any of you worried that a large verdict in this case will cost you money personally, since it is against the county hospital?

Example E:

My father thinks we shouldn’t award money for pain and suffering. Some people feel we should. Where do you stand on that, like my Dad or some other folks?

Example F:

“Well the doctor is a good person. You know he does volunteer work for Doctors Without Borders. That worries me. Would you be inclined to give him a pass even if he committed malpractice because of his good deeds? Or would you hold him accountable even if he is usually a good doctor, but was not in this instance?”

Example G:

“You know my client has children by six different daddies.  What do you think about that?  Would it affect how you view this case?”

Conclusion

     We all want to select a jury in which everyone has the exact frame of mind that you do, agrees with you on everything, and sees it just like you see it. Unfortunately, that person doesn’t exist. There is only one you, and we are all different. About the best we can do is to reveal the jurors who are leaning one way or another. Find the ones that are leaning against you so hard that nothing will cause them to lean in a different direction. These jurors hopefully will be stricken for cause, or if not, use a peremptory challenge and your client will be more likely to receive justice.

Good luck with your next voir dire and I hope some of these tips and suggestions will be useful!