A version of this article was originally written by NITA faculty member Christina Habas for Law Week Colorado and is reposted here with their permission.
We all know that there are potential jurors on any venire whose past experience or biases may prevent them from accepting our client’s claims. Many lawyers are reluctant to explore those sorts of issues, because they believe discussion of information that is not helpful to their case might position the remaining jurors. The difficulty with this view is that it potentially leaves people on a jury panel who are not open to hearing out arguments. There is much danger there.
I suggest that neither jury selection, nor the trial itself, ever changes a juror’s mind, nor does jury selection create issues where issues do not previously exist. Instead, the function of jury selection is actually to “de-select” jurors who hold views that are destructive to our client’s version of events and, if possible, to remove those jurors from the panel who hears the case.
By way of example, in a recent case tried by our firm, our client’s decedent was operating his automobile at night on Highway E-470, returning home from Denver International Airport, when he rear-ended a street sweeper that had been traveling in the left lane of E-470 over the bridge at Parker at a speed of approximately three to five miles per hour. There was also evidence the decedent was using his cell phone at or near the time of the collision and a suggestion that he was doing more than simply making a telephone call at the time. Thus, jurors who held the opinion that all drivers who rear-end another vehicle are 100 percent liable for the collision, as well as jurors who believe that all drivers who are involved in an accident when using a cell phone are liable, had to be identified, and if possible, removed from the jury panel.
The questioning of the venire to obtain these attitudes is counterintuitive. You must ask the question in its purest form to see which jurors hold the most obviously destructive opinions. When we are in “trial mode,” we maybe reluctant to raise potentially destructive issues to our case. However, in voir dire, we must ask those questions in order to properly identify those with attitudes that will make a juror reluctant to find in our favor. Do not dance around you main issues: embrace them.
After we assured jurors that we wanted them to tell us things even if they believed we did not want to hear them and that we were not trying to change their minds, we then asked:
Not surprisingly, we got a fair number of jurors who agreed with one or both of those questions. Asking the question in a very dimple, direct, and absolute way provides you with a better chance of establishing grounds for a challenge for cause under Colorado Rules of Civil Procedure 47.
Even more, however, it allows you to ask jurors whether there are limits on their beliefs or attitudes—whether there are circumstances where they might not believe that driver to be 100 percent responsible, thus giving you an opportunity to de-select in a more meaningful way. At the same time, because we did not argue the point with any juror who raised their hand, the jurors accepted our promise to them that we were not trying to change their minds but instead actually wanted to hear what they thought—something that many jurors do not believe lawyers are interested in doing.
Do not worry about poisoning a jury panel. Instead, look for opportunities to discover your enemies, and to de-select them.
Zelda Harris, an active NITA faculty member, is the director of the Dan K. Webb Center for Advocacy at Loyola University Chicago. Prior to this position, Professor Harris served as law faculty and director of the Domestic Violence Law Clinic, and codirector of the Child and Family Law at the University of Arizona’s James E. Rogers College of Law. She recently spoke with Acclaim about her use of their video learning platform in her Trial Advocacy program. This Q&A is re-posted with permission from The Acclaim Blog.
ZH: I attended the “Educating Advocates: Teaching Advocacy Skills at Stetson University College of Law” in May 2013, in which the principals of Acclaim presented a demonstration of their software program. The presenters and the presentation were quite impressive in terms of ease of use and accessibility of the program via the web. Prior to Acclaim, we used a video camera and CD/DVDs to record student performances. The performances were reviewed by the faculty with the student at the same time requiring the faculty member to “talk over” the video as it played in an attempt to show the student on the video how they can improve their advocacy skills.
ZH: We are using the Acclaim software in our traditional trial advocacy course and as an aid to our moot court/mock trial competition teams. For the trial advocacy class, students set up their own account and are required to download their performances after class each week. The videotaping of the students rotates from one small group of eight students each week. So, each week a new group of eight students is recorded. Once the student uploads his/her video, faculty are invited to view the video and to add comments. Once comments are added by the faculty, the video is sent back to the student for review. The moot court/mock trial teams are using the program occasionally to record practice sessions primarily to self-review their performances, but students are encouraged to invite their coaches to view their videos.
ZH: The program has worked incredibly well. The faculty provides critique to students during the live performance, but the program allows a second chance for faculty to provide critical feedback to the student and gives the students an opportunity to review their performance outside of the stress of the live classroom setting. The program allows for seemingly unlimited comments to the video. In terms of lessons learned, we’ve found that students need to be prompted continually to upload their videos, so from a workflow perspective, it may be easier for faculty to record, upload, and comment on the video(s) before inviting students for review.
ZH: The Acclaim principals have been extremely responsive to any questions raised by faculty or students. We had a few issues with upload speed, likely a hardware issue, that Acclaim handled immediately. Students or faculty that had any difficulty setting up accounts were assisted the same day without delay. The staff and employees at Acclaim are very friendly and easy to work with on a consistent basis. Thank you!
“Yes, yes, and yes.”
NITA’s Rule of Threes. Programs, Publications, studio71. More than a rule, it is a virtuous cycle.
I read, converse, and keep up to date with needs and trends in legal education. The “news” would seem to be all bad—but wait. The schools are talking through innovative solutions for “before-the-JD.” For “after-the-JD,” NITA breathes innovation. This year, we offer you more, in more formats, and more interrelated, than ever. Innovation in your learning? NITA is “on it.”
The NITA Rule of Threes becomes a virtuous cycle of your individual productivity because you can control your path and the type of tool you have time to use at the moment. Each part of our cycle of three advances you to another part: What you learn in a live program is integrated with the publication we select for that program. You move to more NITA content online that refreshes your learning, or provides you on-the-go tools, or introduces you to other skills. You buy a NITA book either as an eBook to take to court with you, or in print so you always have it for ready desk reference. You can jump online and choose a video demonstration or lecture about a specific skill. Above all, while you can fill your need in the short run, you know that actually performing that set of skills is mastered by doing it in one of NITA’s intense, faculty-rich programs. Target your next program, save the date, enroll early.
NITA’s virtuous cycle iterates. Through it all, you can stay up to date with targeted skills through publications and rules books, get a short dose of NITA-esque teaching through a Studio71 webcast, and enroll in the next program already more prepared to master more advanced levels than you owned at the end of your last program.
To get an idea of how the cycle works, let’s jump onto the path today at Publications. We have grown the variety, deepened the intensity, and transformed the usefulness of our collection.
When you get on track with NITA, you recognize that walking the virtuous cycle is easier than ever, more flexible for your needs than ever, and always a bit ahead of what you need next. You can move from online recorded webinar, to live webinar, to live program, to online learning that reinforces and refreshes your program work, to an eBook that gives you the meat of your new skills in a portable outline and guide. You can confront a new level of practice and turn to NITA at any point in the virtuous cycle, walking it again to continually integrate your new learning with your prior work and your higher level of sophistication.
Other recent accomplishments? All of our publications can be purchased online at www.nita.org. Our website offers you the choice—eBook or the print version—for every treatise and guide. Case files can be ordered for your class or working group. Videos of lectures can be viewed online. Webinars are both audio and visual—you will see your lecturer as if you are there in the room, and can post questions.
What’s coming? Some surprising and inventive takes on unbundling books—stay tuned. Some amazing case file features—the first of which is the recently released Evans v. Washingtonia State University case. It uses interactive “microsites” to deliver depositions, electronic evidence like emails, text messages, a video clip, and online social media posts.
In this time of intense innovation, NITA innovates for the practitioner—accessible, in the right form at the right time, deeply instructive, clearly laid out, and tailored to you. We aim to remain the most useful resource to lawyers for the most helpful, dense, practical, accessible, individualized, and live methods of mastering advocacy skills. Give me your other ideas too!
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
written by guest blogger and NITA faculty member Cynthia McCullum
As a young attorney, I conducted voir dire as if I was looking for a new friend. I asked prospective jurors about their background and their interests in a conversational tone and would float my theme in the gentle flow of conversation.
I remember a domestic assault case in which, by the time I finished my voir dire, I felt that I had picked a panel of potential lunch dates! We were getting along famously, so in my mind I had the perfect jury. These jurors nodded with me during my opening statement. They closely followed my cross-examinations. I knew I had them won, right up until the facts started coming in. As the victim testified about the assault she suffered at the hands of my client, imagine my surprise when I looked over and saw several jaws had dropped in horror. Rarely had I found such betrayal in any friend’s eyes. It seemed that every juror turned toward me as if to say, “To think we liked you.” Hmm, I knew those jurors were not my friends anymore. Luckily for the defense, the complaining witness began testifying to inadmissible evidence and my motion for a mistrial was granted.
I learned from that mistake. At that time, I had picked twenty or so juries and I thought that I knew what I was doing. Unfortunately, I had been making friends and not picking jurors.
With the next panel I saw, I listened to their responses to the Court and I watched their body language. I talked to them more about the criminal justice system and their experiences with friends or relatives who had been involved in the system or arrested for different crimes. We discussed how they made up their minds with limited information or if they followed criminal cases in the news. I also asked about CSI shows and what they thought of police shows in general. I focused more attention on the panel as decision makers in my case and less on how much I liked them. That panel returned a quick not-guilty verdict
As the jury was excused and filed out, one juror felt compelled to tell me that she didn’t like me. “No,” she said, “I don’t like you, but I agreed with everything you said about the case.” My first reaction was to answer, “What, you didn’t like me?” Instead, I realized that I didn’t want a new friend. I wanted a juror who would carefully and fairly consider all of the evidence, so I said, “Thank you.”
So, next time you voir dire, deliberate who you don’t want on your panel. Avoid someone who resembles the plaintiff or the defendant, or who will identify with the other side. Tailor your questions to address the particular issues around violence, injuries, weapons, or damages. Talk about your tricky issues. Listen closely to the answers. You may find jurors with different attitudes, experiences or world views. Look for jurors who will be fair to your client or your cause. Don’t look for new friends.
Cynthia McCollum is a Hennepin County Public Defender. She has tried over 100 jury trials and worked on over 25 homicide cases. McCollum has been an adjunct professor at William Mitchell College of Law since 1987 and Hamline University Law School since 2003. She has taught a variety of classes including trial skills, advanced litigation skills, criminal procedure, and appellate advocacy. McCollum has lectured on domestic abuse defense tactics, jury selection, and jury selection ethics with Batson issues in CLE presentations in several locations around the country. McCollum has been a NITA co-director in MN for several years and a faculty member since 1990. McCollum has published a law review article on enhancement of juvenile adjudications.
Maybe it’s a chicken or the egg-type question, but are you better served to select jurors you’d like to see on the panel or excuse those jurors whose views conflict with the theory of your case? Cynthia McCollum, from the Public Defender’s office in Minneapolis, discusses best practices on making sure you excuse those who could harm you and, in doing so, protect your “friends” who can help your cause. Here is an excerpt from Cindy’s presentation on Jury De-selection:
Originally brought to you as a live webcast, the full webcast is now available on demand. During the hour, you will receive insight on:
• How to win jurors
• How to influence jurors
• Ways to win voir dire
• How to talk to, and listen to, jurors so you learn something from them
There are two brief demonstrations, one criminal and one civil, to show how the questions you ask can differ depending on the situation you are in.
If you are interested in purchasing the webcast, you can do so here.