by Patrice Truman, Esq.
There are numerous benefits to having a jury rather than a bench trial. Jurors apply a fresh perspective to the evidence as they approach their decision-making, and have a common purpose of finding some resolution. Although they are forced to suspend their daily routine when they serve, once in the box, they typically give their uninterrupted attention to the trial as the evidence unfolds before them. In the end, they bring a cumulative and disparate collection of wisdom to deliberations.
The risk of exploiting jurors can begin as early as voir dire when the court sets out parameters that seem unreasonable in some way. Each judge has a different style, for which counsel must adapt and conform to courtroom rules pertaining to voir dire. On one extreme, counsel may take advantage of the court’s broad voir dire parameters, while on the other extreme, counsel may feel choked by the tight control from the bench. Whatever procedural method is deemed by the court, the jurors are affected in some way. They pay close attention to both the substance and procedure of voir dire because it is the start of trial, their attention is fresh, and they may harbor an agenda too, e.g., “I
want to get off!”
This newsletter presents actual incidences of voir dire parameters set by numerous courts taken from this jury consultant’s notebook; included is a discussion of how the varying styles may influence jurors’ impressions of the trial process, and how the attorneys can effectively pursue voir dire.
I. The Undisciplined Courtroom.
Consequence: Jurors leave this courtroom feeling frustrated and cynical. They express opinions that certain cases “should never go to court, they should be settled.” They reason that trials should be heard by a panel of “legal specialists” instead of laypersons. Attorneys who take advantage of this lackadaisical arena risk angering jurors who envision that the trial will be a waste of their time.
II. The Civic-Minded Courtroom.
Consequence: Jurors realize what a cinch it can be showing up for jury duty and serving their time, albeit short, if they have a persuasive excuse. Those jurors who stay on will report later in the post-trial interviews that they felt some people were “gaming the system” by lying to avoid serving. Later, they bluntly question why this was “allowed to happen.” In the end, the attorneys are left with a jury pool that respects its civic obligations and has a heightened sense of pragmatism.
III. The Militaristic Courtroom.
Consequence: Attorneys must have a warm, welcoming personality, and make concise conversation stripped of time wasting lawyer lingo, such as “Let the record reflect a negative response to my question.” First, counsel should ask case-specific questions of the group because of the time constraints, with follow-up probing where essential. Thereafter, individual questions should be addressed toward jurors, especially to those who have not offered any response during the group inquiry. When time appropriate, counsel should request a break before peremptory challenges begin in order to assimilate the collected information and confirm the strike plan.
IV. The Tied Up and Gagged Courtroom.
Consequence: A restrictive arena. Stay within the fact-based parameters of the case. Typically, the bench will request a preview of voir dire questions; for counsel this provides an opportunity to test the judge’s leniency, if any exists. Counsel may have to rely more on body language and micro-facial expressions from prospective jurors, although this provides an incomplete assessment. Jurors realize that the attorneys may be unreasonably gagged by the bench, and sometimes try to slip in an explanation to a question.
V. The Survival Of The Fittest Courtroom.
Consequence: An exhausting physical challenge. Counsel must drink reduced amounts of liquids and eat high protein food to survive. Keep finger food snacks in the briefcase and in pockets. This voir dire experience proves draining for jurors too.
VI. The Judge Takes The Spotlight Courtroom.
Consequence: Jurors tend to offer socially appropriate and less controversial responses to a judge. Under this restriction, the attorney can study the dynamic of the pool by paying close attention to the jurors during voir dire, noticing those who are attentive to others’ responses, and nod to certain questions and comments. The trial team and client should appear interested and concerned and resist paperwork organizing, editing, or other multi-tasking as the judge interviews the group.
VII. The Functional, Not Dysfunctional, Courtroom.
Consequence: Focused follow-up questions probe jurors’ life experiences. Counsel must explore their occupational experience for insight into issues of identity and self esteem; management experience for indication of a juror who would persuasively “manage” deliberations; educational achievement; life goals and ambitions; other occupations in the family for outside knowledge and influences; and their source of news and current events for sophistication level and indication of ideological and political leanings.
B. The Six Pack Method With Juror Questionnaires As Reference.
Consequence: Regardless of questionnaire length, counsel needs to ask follow-up questions to seek clarification and to engage each juror. Prospective jurors spent time completing the questionnaire, therefore, counsel should return the courtesy by addressing each person, even if briefly. At the minimum, this gives counsel some indication of a prospective juror’s receptivity to the case, counsel, and client. If a juror writes unfavorable responses on the questionnaire, counsel should address these specific attitudes to probe the other prospective jurors’ level of agreement. Counsel should not hesitate to flush out the negative opinions due to concerns that these opinions might “poison” the
pool. In actuality, the goal of jury selection is juror deselection.
Conclusion and Recommendations.
Patrice Truman, Esq., is a jury and trial consultant working throughout California and elsewhere, with an office in Berkeley, California. She can be contacted at 510-528-4655, by email at firstname.lastname@example.org or through her web site, http://www.trumanassociates.com. She welcomes suggestions and topics for future newsletters.
Copyright © 2010, Truman & Associates