The Advantage Blog
“We’ve Been Everywhere, Man,” and We Always Pack a Sound Approach to Jury SelectionMay 14, 2015 | By Theodore O. Prosise Ph.D. | Jury Selection
We feel like Johnny Cash: “Across the deserts bare, man, / I’ve breathed the mountain air, man; / Of travel I’ve had my share, man, / I’ve been everywhere…” More appropriately for us, the song should sing, “We’ve been everywhere,” and should include references to the place like Texas, New York, Kansas City, Alaska, Los Angeles, Seattle, and Chicago, to name just a few. The frequent flier miles are piling up, and we have started a tradition of taking pictures of each courthouse across the country we visit. But regardless of the venue, the particulars of the jury pool, or the procedures of the court, our essential approach to jury selection remains the same.
Different courts and judges obviously have their own preferences and procedures. Sometimes there is very limited opportunity for attorney conducted voir dire, both in terms of scope of questions and time restrictions. Some courts encourage the use of supplemental juror questionnaires, while others frown upon them. Different jury pools mean different demographics, attitudes, and experiences. Local culture can play a large role in the framework jurors bring to a particular case. Downtown Los Angeles jury pools have a different feel and flavor than Chicago jury pools. Different cases involve different fact patterns and themes, but they will also have some value and principle overlap. Regardless of the variations and multiple combinations of any of the variables above, a sound approach to jury selection is critical.
Core jury selection methodology and principles are simply adapted to particular exigencies. Aristotle’s definition of rhetoric as the ability to perceive and execute persuasion in any given situation is analogous to the ability to apply and execute the methods of jury “de-selection” (the art and science of identifying and removing jurors most problematic to the trial team) in any given circumstance or courtroom. The local conditions are opportunities for the strategic and tactical application of the tools of the trade.
For example, in one recent case, the strategy for cause challenges – a specific set of questions presented in “layered” form, step-by-step, question by question – was used because the particular judge engaged in robust attempts at rehabilitation. Four to six questions had to build a foundation for the cause challenge that was based in the argument that the individuals a) had an opinion; b) that opinion was based in actual experience; c) the experience still lingered in their minds as strong and memorable; and d) that the experience was similar, at least in some ways, with the underlying facts. The lawyers had to construct a “box,” so to speak, around the rehabilitation efforts that would follow. In other cases, the primary effort may be directed at rehabilitation efforts, raising the bar for cause challenges so that the opposing party is not able to create a run on potential jurors and vastly improve the venire. The principles and approaches need simply be executed in light of the case, trial judge, and venire.
Jury selection is both art and science. It involves, at times, highly detailed and carefully applied principles in the assessment of which attitudes and experiences present the greatest threat to the open-minded reception of our client’s case strategy, disposition, and themes. It involves knowing when to ask the follow-up question and when to avoid it (in an effort, for example, to avoid revealing a high risk juror for the opposing trial team).
No matter where we are, there is value in understanding the force of the linguistic expressions of a member of the jury pool as it relates to the case themes that will be presented by parties at trial. No matter where we are, interpreting and evaluating the nuance of human expression, verbal and non-verbal, is critical to identifying which jurors to strike, advance a cause challenge against, or to rehabilitate if the opposing counsel is attempting to establish cause arguments against a juror who may have expressed an opinion, but who can still be a thoughtful and considerate finder of fact.
The method of tracking and analyzing information is critical whether the voir dire will be limited to fifteen minutes of questions or if the jury selection process spans two or more weeks. Managing information for the trial team and offering informed recommendations for actions is what jury consultants do. It is in the application of the core principles of jury selection to the local circumstances that matter most.
So, it is time to wrap up the blog and head to the airport. Our methods and approaches are secure and await unpacking and use in the next case.
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