Jury Selection… Are You Doing It Wrong?
When I’m called in to assist with jury selection, the first question I’m often asked by attorneys is “which jurors are going to be good for us?” This question always puzzles me, because jury selection is actually about deselecting bad jurors. Sure, knowing what jurors are “good” for us is important as far as it goes, but considering the fact that the best jurors for us are likely to be struck by competent opposing counsel, what we need to do is focus on identifying and eliminating the jurors that are more likely to not adopt the themes and arguments of our case based on personality, cognitive and other factors. The important question then is, how do we identify the bad jurors? Below, we list a few strategies to keep in mind during jury selection.
1. Don’t Focus on Demographics
Let’s start with how not to identify bad jurors… by focusing on their demographic information. Demographic information is typically easy to gather and may be supplied by even the most difficult Judges/Courts, but what does it tell us? Demographic information such as age, gender and race tell us very little about a prospective juror, despite the hunches and gut feelings and “experience” people attribute to these characteristics. Research shows consistently that these demographic variables are not particularly important in terms of a juror’s ultimate verdict disposition. Why? Demographic information is akin to the surface features of an iceberg. These features may look important and impressive, but it is what is beneath the surface that ultimately affects verdict dispositions.
Effective jury selection must focus on understanding the underlying characteristics of our prospective juror’s in terms of their beliefs, experience, and intellectual curiosity among other factors. Demographic factors that speak to a person’s experiences and attitudes, such as their employment, education and political affiliation are more likely to yield information that is important, but again we have to caution against over-weighing this information in jury selection. For example, although a cursory viewing of MSNBC and Fox News may make us feel like “liberals” and “conservatives” are perfectly mutually exclusive in terms of how they view the world, this is simply not the case. Men may be from Mars, and Women may be from Venus… but that does not mean that all men think one way and all women think another way, despite nonsensical pop psychology books tell us. The more we can get jurors to talk about their life experiences and beliefs that are relevant to our case, the more likely we are to shed light on the potentially bad jurors.
2. What to Focus on During Voir Dire
Obviously, jurors’ responses to voir dire questions are important and should be considered and weighed appropriately. However, jurors will also tip their hands somewhat in their non-verbal communication, and a lot can be learned from these non-verbal cues, if you know where to look. Is a particular juror eagerly answering a lot of questions? Is a particular juror looking more disinterested than what we might expect from the average person during jury selection? When a juror answers a question, do they make good eye contact, or do they look down/around? When asked a direct question, does the juror hedge with their answer? Taken together with the content of their responses, non-verbal responses allow us to paint a more full picture of the juror in terms of the credibility/veracity of their answers, as well as their potential to be leaders on the jury.
In a recent case, one of our potential jurors was a middle-aged man who worked professionally as an engineer. From a demographic point of view, he was the perfect juror for us, but during voir dire, his non-verbal communication conveyed a very clear “I do not want to be here”, which created a potential problem when it came to our peremptory strikes. However, this juror eventually indicated quite strongly that he did not think that corporations should be treated as people, and when challenged by the judge whether or not he could be fair, hesitated and hedged enough that he was ultimately dismissed for cause.
3. Consider the Gestalt
When making deselection choices, it’s important to not just consider the individuals that we are concerned with, but also the overall panel that is likely to be seated. In Psychology, “gestalt” refers to the notion that the whole is greater than the sum of the parts, and as such it’s important to not just focus on individuals, but rather, how the group will work together to reach a verdict. Consider, who do you think will be struck by opposing counsel? How does that affect the panel composition, and does it change who you may want to strike? With two different jury panels to strike/deselect from, your opinion of certain people may be different depending on their peers. In a recent case, I suggested leaving on a juror that would typically be struck by a defense team given our case, but in this particular case I believed his negatives would be strongly overwhelmed by the people we were confident opposing counsel would not strike. As it turned out, the juror that was left on the jury became the foreperson and brought back a defense verdict in less than an hour. Had we done an analysis simply on an individual by individual basis, it’s likely we would have used a peremptory strike on this juror.
Jury selection has a lot of moving parts, and much to attend to. Organization is key to success, and by organization we don’t just mean a simple seating chart and some highlighters. It’s important to know exactly what we should look for during jury selection, because there is a lot of noise in the situation, and if we focus on the wrong things, we may miss something important. I recently worked on a case where one of the potential jurors was clearly a “good juror for” us. The case involved some complex financial documents, and this juror had a strong business background and was articulate and eager to answer voir dire questions. She was so good for us in fact, I considered her to be the plaintiff’s first strike. However, an interesting thing happened… during a break, the juror apparently met with a Court official who conveyed to the Judge that she was having severe anxiety about sitting on the jury. I never knew the full story, but the Judge excused her from the panel, and replaced her with another juror. The replacement juror turned out to be pretty middle of the road, seemingly neither good nor bad for either side. When both sides submitted their peremptory strikes to the Judge, I was shocked to learn that this new middle of the road juror was struck by opposing counsel. On the surface, this made no sense… but then it occurred to me. Somehow opposing counsel must have lost track of their notes and thought that the woman in that seat was the original juror who was clearly a good juror for the defense side. What a gaff! The point here is that even the most skilled attorneys can make very simple mistakes when not properly organized and focused during jury selection, so it’s critical to lay out a plan in advance and stick to it.
Tuholski Litigation Consulting, LLC is a full service nationwide trial consulting firm with offices in Oklahoma City and Dallas.