Practice, Practice, Practice
Written by NITA guest blogger: Richard Schoenberger
Most cases involve two trials, the first one in the court room and the second one in the jury deliberation room. Pre-trial studies that identify top demographic trends of participants who would most help your case and that gather feedback in the form of surveys and multiple focus groups can obviously help develop themes and find the right jurors for you. But, at some point, you will be standing there – naked and alone – charged with the task of finding the right jurors for your client’s case or, much more accurately, “de-selecting” the wrong ones. This article makes the case for the notion that the best voir dires are those that have been practiced in advance. Huh, you say?
This we know for sure: At a minimum, one can lose the opportunity to win a trial in voir dire. Therefore, isn’t jury selection the most important part of the trial? For me, it is hard to argue otherwise. After all, these are the folks who will be making the decision that affects your client’s future. Get the wrong mix, and you may have yourselves a problem. Get the wrong leader? Forget about it! An individual’s occupation/vocation, whether for compensation or volunteer, really matters. Are they in leadership positions? Do they supervise, terminate, manage, make difficult upper level decisions? If so, they are probably a leader and you need to pay particular attention. Are they a leader who values personal responsibility over social responsibility? If yes, more likely a good defense juror in a civil case. If not, probably a good plaintiff juror. But, get them talking to find out! Easier said than done?
And remember, your goal is not to uncover those folks who are likely to agree with your case, but the exact opposite. You are in search of those whose belief systems are directly counter to some of the weaknesses in your case. So, your focus during selection is on the bad stuff in your case, not the good stuff. You are out there trying to gauge reaction to the things you are worried about, not the things that make your case strong. The last thing you want to do is highlight your good jurors.
Getting people to be brutally honest and speak openly in front of a room full of strangers on topics that concern you and that they never before considered can be, to put it mildly, a tad difficult. How do you make jurors feel comfortable enough to talk and really open up? How do you bounce from juror to juror? How do you reveal and “de-select” those jurors who are wrong for your case? This is hard enough for the most experienced lawyers, but can be particularly challenging for those just starting out.
Despite this, it seems that new trial lawyers don’t spend enough time preparing for all-important jury selection, and as such, it becomes the scariest part of the trial for them. If conventional wisdom supports the notion that lawyers should practice/rehearse opening statements, why isn’t it equally important that lawyers practice/rehearse voir dire? You would be amazed at how much better you will feel with the real thing when you have already spent an hour or two with a group of people asking open-ended questions about your concerns in your upcoming case – i.e. when you have emptied your “worry basket” with vulnerability and candor; when you have worked out your first 1-2 minutes in front of them; where you can learn to listen and react instead of simply trying to educate; when you have practiced converting from open-ended questions to leading-type questions to establish a cause challenge.
A focus group specifically devoted to jury selection can be done on the cheap. Systems exist for recruiting local residents to come in for a few hours for a fairly low sum, certainly less than $1,000. Or, you can simply grab a group from your firm or a group of trusted family/friends and force them to assume the role of pretend jurors. This can be done even more cheaply! By practicing this way, you develop the muscle memory for themes you wish to advance, for problems you want to voice. Do it more than once if you can. These dress-rehearsals make the real thing so much better…and dare I say, more enjoyable!
Remember, first impressions matter. Jury selection is the first time that you will have the jurors’ undivided attention. This is the time that you can establish rapport; that you are able to show yourself as the trustworthy lawyer who will lead the jury down the path of truth and justice. To do this correctly, you will not be taking copious notes, but instead standing before them, razor-focused and attentive to the verbal and non-verbal cues that they will be offering up. How uncomfortable is that? Much less so when you practice. You and your clients will benefit tremendously.
[Richard H. Schoenberger is one of the most highly respected trial lawyers in California. In 2011, he was selected as the Trial Layer of the Year by the San Francisco Trial Lawyers Association. It was his second nomination for this prestigious award. Rich joined the Walkup Melodia office in August of 1987 and became a partner in 1995. He has served as program director at NITA’s Advanced Advocacy program since 2014.]
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