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Jury Selection
by Kenneth P. Nolan
The room is cramped. barren. and uninviting. There are no windows, and only one door. The floor is dirty, the chairs uncomfortable. The walls are painted, as we say in Brooklyn, puke green. No, this is not an Iranian torture chamber: it is jury selection in state court in New York City.
You, the great trial lawyer, will spend the next day or week with your adversaries, trying to influence jurors into favoring your client before they hear a word of testimony. Wait, did I say that? What I mean, of course, is trying to select fair and impartial jurors.
Jury selection is a battle for the hearts and minds of triers of fact--6 or 12 ordinary citizens living ordinary lives, bothering no one, until they received a hated jury summons in the mail. Now they must go to court, try to get excused, and, failing that, wait around all day listening to lawyers, talk sanctimoniously (and hypocritically) about fairness, justice, and the American Way. Maybe the torture cell is preferable.
But remember a pretty basic fact: The jurors decide whether you win or lose. You better be careful in picking them and do it right. Because if you don't, you can fail, and in our profession, that means losing. By examining jurors, reactions to you and what you say, you may be able to determine that the juror who swears he can give your disabled client a fair shake is really thinking that he his hid enough of those million-dollar verdicts and is going to fix this system-right now! Or you may be able to uncover that the juror who promises he can be fair to General Motors secretly has had it in for GM ever since his Chevy conked out on the way to Lover's Lane in 1962.
So, in those jurisdictions that still allow the art form that is jury selection, you should remember a few guidelines.
1. Know the rules. Federal court is different from state court. Each courthouse is different and each judge is different. No one, it seems, has the same procedures. If you, the experienced trial lawyer, assume that you know the rules, you could be very wrong. Do you have to submit voir dire questions? Are you allowed to question potential jurors? When do you request peremptory challenges? How many are you entitled to? In multidefendant cases, I have seen the judge allow only a total of three peremptory challenges because the attomeys failed to request additional challenges w hen they submitted voir dire questions.
What system for challenges is in effect? Some courts hold that if you don't excuse Juror No. 1. and instead excuse Juror No. 2. then No. 1 is sworn. If you don't excuse ‘em. they're in. Other courts will not swear any juror until all are sworn so that a juror can be excused at any time. To learn what the ground rules are, talk to colleagues and court personnel.
2. Know your jury pool. If you are trying a case in an unfamiliar jurisdiction, arrive a few days early. Walk around town. Get a haircut at the local barbershop. Grab a burger at Joe's Diner. Have a beer in a neighborhood saloon. Forget about the four-star restaurants: those people will not be on the jury. Talk to people in the street. Read the local papers. Get a feel for the area and the people.
Look at how people react to you. If they hide their pocketbooks when they observe, "You must be from New York," then you know you'd better hire local counsel to sit with you at trial. If you are from New York City, but the trial isn't, make sure you tell the jury (and the judge) that it –isn’t your fault where you were born. Apologize-tell them you’re a Brooklyn kid. Otherwise. you may be seen as a liberal phony with a mouth and ego like George Steinbrenner’s. It you can afford extensive jury surveys, then use them on the old chicken soup theory-they can’t hurt. But it is better to talk to and observe ordinary citizens for a few days before you begin. What works in New York or Los Angeles might not work in Knoxville or Santa Fe.
3. Speak to the jury. If your jurisdiction allows you to question the jurors, do so. Do not waive that right. If you are in federal court, ask that the judge allow you to pose voir dire questions. Most often this is denied. But always ask. On occasion, you may be allowed to address the jury. If the judge insists on seeing voir dire questions before selection, submit them in detail. In federal court, request that the judge ask all the questions you submitted. Many times federal judges ignore voir dire requests, and you must explain why the are crucial. If you represent Toyota, tell the judge it is important to learn if anybody on the jury thinks that the Japanese should be prohibited from buying Rockefeller Center and the entire West Coast.
If you are finally allowed to address the jury panel. use the opportunity effectively. Explain what you are doing and obtain background information on job, family, education, jury service. experience with lawsuits. and knowledge of the parties and their lawyers. Even though you risk being boring and repetitious. do not be intimidated into being cursory or flippant.
4. Look at the jury. What are they wearing? Air Jordans or business shoes? Suit or work shirt? Do they have dirt under their fingernails? What are they reading-People or The New York Times? Are their clothes worn or new? What is their reaction to the lawyers-one of openness or the usual distrust and disgust? Do they talk to their neighbors or sit alone refusing to remove their coats? Examine their age, sex, race, ethnic group. Look at whether they are wearing religious medals, political emblems, or social buttons. Most of the time, it may make no difference, as most jurors try hard to be fair and impartial. But we are all weak: We are all biased to some degree. Your job is to limit the chance that a juror with a preconceived bias against your client will be selected.
Does the prospective juror appear hostile? This shows obvious contempt not only for you but for the system. If someone is bored after sitting in court for two hours and you are facing a six-week trial, think twice about allowing that person to sit on your jury, especially if you have a complex defense that requires mental acuity or stamina. Sometimes, the opposite problem comes up: The prospective juror looks too eager. He is the one who may have his mind made up. He is the one who is going to fix this system that is too expensive, too slow, and gives away money like politician's promises.
5. Be considerate. Most court facilities, even if in decent repair, are inadequate. My theory is that there is a direct correlation between the adequacy of court facilities and the jury's verdict. As the courthouses deteriorate, plaintiff's verdicts increase. In federal court, with clean jury rooms and stenographers that come on time, the awards are substantially less than in the dilapidated Bronx and Brooklyn courthouses where the roofs leak, bathrooms stink, and "Mark loves Diane" is carved into the courtroom seats, The newer the courthouse, the more defense verdicts. In fact, if insurance companies really want to save money, they should funnel their funds into sprucing up the courthouses so that the jurors' anger would not be visited on them.
When you address the jurors, speak to them as equals. I have heard too many lawyers begin by explaining what voir dire means this way: "It is a French term meaning . . ." What the attorney is really saying is "I am an educated lawyer and I understand French and you don't. You are dumb and I am going to tell you what this case is about." In the back, a driver is thinking that he flunked it in high school. but he sure doesn't like that idiot in the gray suit whose case doesn't sound so hot anyway.
Take a break for coffee in the morning. Ask the judge if the panel can have an extra 15 minutes for lunch. Understand that if they get stuck on the train or the freeway, they are not necessarily lazy. Be an example. Come on time. Be prepared and organized. If the jurors see that this case is important to you, they will treat it the same way themselves.
Realize that jurors don't want to be there: they would prefer to be at their jobs or with their families. For some, it is an extreme sacrifice; they have small businesses or jobs that they cannot leave for two or three weeks at a clip. Treat them as human beings. "Is it Miss, Mrs., or Ms.?" Don't ask: "Do you have a job or are you a housewife?" Don't make fun of their jobs. "Oh, so you're the guy I can blame when my train breaks down ..." Treat them as you would like to be treated.
6. Speak English. Leave the legalese for the cocktail parties where you can impress your cousins from New Jersey. Forget "prior to and subsequent to." Forget the theretofores and hereinbefores and all the other verbiage tattooed on your psyche since law school. Save the 18-letter adjectives for a debate with William F. Buckley. Don't ask: "What was the highest level of education you achieved?" Ask: "How far did you get in school?" Don't ask: "What is your occupation?" Ask: "Tell me about what you do for a living" or "Where do you work?"
7. Ask open-ended questions. The idea is not for you to talk and talk and talk, but rather to have the jurors speak to you-the more they tell you, the better. "Tell me about your family." "Tell me how far you went in school." "Tell me about your experiences with doctors-and hospitals." "Have you ever been in a car accident? Tell me about it." Have them talk in paragraphs, not in simple yes or no answers.
If your case is a media sensation. ask: "What have you heard about Leona Helmsley?" Sure, you will get answers that you do not like, but at least you can confront them before the trial starts. For every juror who blurts out something bad about your client. there are at least two others who are thinking the same thing. You may not be able to eradicate all knowledge about her, but you can address it, try to minimize it, and have the jurors promise not to allow in preconceptions to cloud their judgment. Then, at closing, you can remind them of their pledge.
8. Admit weaknesses. If you are representing a driver whose blood alcohol level was higher than Wade Boggs' lifetime batting average, tell the jury. The test results won't go away. Ask them if they can be fair even though your client was drinking. "Ladies and gentlemen of the jury, you are going to hear sooner or later that my, client had been drinking. Can you wait until you hear all the evidence before you make up your mind? If you can't give a person who has been drinking a fair shake, that's OK, as long as you admit it now. If you become a juror, and you judge him simply on the fact that he was drinking without waiting to hear testimony, then you really wouldn't be doing your job as a juror." Ask each individual juror. Some will say it depends upon how much he was drinking. You can work on them so that they excuse themselves by admitting they could not be fair. Some will not admit their bias, but both you and the other jurors will see through this charade; and when you use a peremptory challenge. all the jurors will understand.
If you are defending a drug company or a hospital whose alleged negligence has resulted in a severely brain-damaged infant who cannot walk, talk. or care for herself, make sure you condition the jury before they see the child in court. Tell the jury that there is no question about the seriousness of the infant plaintiff's injuries. Tell them that they will see Jennie in the courtroom, and that she will not be able to walk, that Jennie will never be able to walk, and that we feel very sorry for her condition. but we did not cause it. Go into detail: explain all her problems-how she must be fed, how she is thin and small and gets sick easily. Prepare the jury for the case. Do not allow them to walk into the courtroom thinking that they will hear a simple medical malpractice or products liability case, only to be shocked by seeing a helpless, beautiful, wheel-chair bound infant.
All people feel sympathy for the injured. If you represent a defendant, tell them it is normal to feel sad for little Jennie. Inform them that they must not let that interfere with their judgment-that they must be strong and rule in favor of the defendant if that is what the evidence proves. Condition the potential jurors to make a tough decision so that when it is time to vote in the jury room, they won't hesitate to look at little Jennie and her mother and tell them they lose.
9. Tell the jurors they have alternatives. If a juror is wavering and is unsure whether she can be fair and impartial, explain to her that there are many other cases in the courthouse-criminal, medical malpractice, breach of contract, real estate. Tell her she "may feel more comfortable sitting on a different type of jury." If a juror informs you that her mother was killed in a car accident, that same juror may nevertheless say she can be fair and impartial to the defendant. That is hogwash. Get her off the jury. The best way is to have her admit her underlying resentment, but there is often resistance. Have the juror come to the realization herself by asking the following questions:
"Now, Mrs. Smith, you tell us that your mother, unfortunately, was in an automobile accident. Well, I represent the person who must defend this lawsuit. It involves a similar accident. I have to go back to him and say that all these jurors promise to be fair and impartial. Now, could you look my client in the eye and tell him that you can be fair and impartial even though this trial may bring back unpleasant memories of your mother's death?" Usually, the answer remains yes. Continue: "Isn't it possible you might bend over just a little to assist the plaintiff subconsciously?" Try to get the juror to excuse herself. But don't push. If there is
resistance, do not overdo the questions. Use a peremptory challenge. That is what they are there for.
10. Don't confront or embarrass a juror. Sometimes, a juror will be unemployed. Don't ask. "How long have you been out of work?" Don't ask the jurors if they are prejudiced. Tell the juror that you represent an Arab corporation-is there any problem with giving a Saudi Arabian company a fair shake? If you see the juror's face stiffen and through clenched teeth he says he can be fair, don't ask "Are you prejudiced against Arabs?" His answer will be no. The bigot-and all the other jurors-will resent the question, because no one in this country believes he is prejudiced against anyone or anything. Everyone is always fair. To say that someone cannot be fair is to say that someone cannot be an American and does not believe in democracy. Look at facial expressions, body language. Ask jurors what they think of the corporation or Saudi Arabia. You might get a damaging statement that allows you to challenge the witness for cause or have the juror excuse himself.
11. Trust your instincts. If you represent an Hispanic who is suing a corporation, the odds are that you want other Hispanics on the jury. Yet that doesn't often work. If your jury survey tells you that a young. married woman is the perfect juror for your case, but there is something you don’t like about the person who meets that description, kick her off. Use your common sense. That is what you are being paid for-to evaluate and to communicate. If everything about the guy-his name, his age. his sex, his race, his religion-says yes, but there is something about him that you can't figure out, excuse him.
Many times you can tell whether a juror %will be good or bad simply by his demeanor. Some jurors are so angry at one side that it comes through in their actions-even when they are giving the answers that they think you want to hear. Most jurors are like most people: They tell you what you want to hear. "How are you today?" always is answered with "Fine" even though the speaker may have had the most miserable morning of his life.
12. Almost never use your last peremptory challenge. If you do, the person who replaces the person you just excused is always worse. It is inevitable that you will seat the worst possible juror for your case once you use the last peremptory challenge. Only in an extremely rare situation should you use your last peremptory challenge. Though there are times it must be done, it is a gamble you could lose.
13. Jury selection is not the trial. Occasionally, you will see a lawyer who is so happy with jury selection that he believes he has won. "Oh, I have the greatest jury in the world, no way am I going to lose. I represent in Irish guy and I have six Irish men and women on the jury."
But the case still must be tried. Jury selection doesn't mean anything if your client is lousy, your case is lousy, and your proof is lousy. It is only one aspect of the case. It is important, but not as important as the evidence or the testimony of your witnesses. You cannot rest once jury selection is completed. Your job has just begun.
Litigation Magazine
Spring 1990 Volume 16, No. 3 | 
