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Jury Selection Part 3: Don’t Pick Your Friends For A Jury

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McCollum_Cynthiawritten 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.

Jury Selection Part 1: Voir Dire

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lindaLanewritten by guest blogger and NITA faculty member Linda Lane

How can you tell when a lawyer is lying?  His lips are moving.

Have you heard that one?  Chances are good that so has your jury!

Ours is an uphill battle, especially at the early stage of voir dire.  In a juror’s eyes, you are the one that is perhaps single-handedly responsible for plucking her out of her happy existence and putting her in this courtroom.  She received her jury summons weeks ago.  She has been dreading this day.  She has arranged coverage for other areas of her life.  She may have even tried to post-pone it once, or twice.  There are at least a dozen places that she should be instead of this courtroom.  You are interrupting her life.  You are an inconvenience.  And she doesn’t trust you.  She has heard the lawyer jokes.

Your job as the attorney conducting voir dire is to begin the process of dissuading your jury of their preconceived notions of attorneys and becoming their trusted guide through the trial.

This begins at voir dire.  Truly, this begins the moment they first see you.  Even if it’s in the parking lot before trial.  They will watch how you treat others.  They will watch how you treat the Court and its staff.  They will especially watch how you treat them and their fellow jurors in voir dire.  As soon as they are in the jury box, it is “us” and “them.”  They have an instant bond with their fellow jurors and you are separate, you are “them.”  You must treat each one with respect—even those that you know you will challenge and be rid of.  Maybe, especially those. The rest will have witnessed it and will remain in the box.

Voir dire is an amazing opportunity to interact with the jury, before the trial, on a personal level.  As such, you need to take full advantage of it.  You need to be human. You need to look at them, in the eye.  You need to respect them.  You need to be kind (but not syrupy, disingenuous).  You need to listen when they talk.  You need to pay attention to them.  You need to be interested in them.  You need to call them by name.  You will be asking them to trust you in this trial and you must give them grounds to do so.

You need to show appropriate sympathy when they tell you why they cannot serve on this jury.  Your potential juror’s mother died of a heart attack earlier this year and he doesn’t think he can be fair in evaluating a malpractice claim based on the prescription of a cardiac drug.  First, acknowledge his response and express appropriate sympathy for his loss, give thanks for his openness and honesty.  Only then, try to note, through appropriate questions, how your case differs.

Of course you also should do all of the things we are taught about voir dire:  artfully weave in your trial themes; choose words that spin your case the way you want it spun; de-select those jurors who seem pre-disposed against you, your client, or the facts; identify leaders and followers.  But, possibly the most important lesson of voir dire—and the one most easily forgotten when we are stressed, being watched by our client or senior partners, and on the eve of what might be the most important week(s) of your client’s business or your career—is to take time to be kind and show respect.  

Linda Lane is a USD School of Law Trial Advocacy Professor and solo Practicing Lawyer specializing in consumer product advisement.  She regularly provides consultation and advice to her clients regarding potential product liability exposure related to new or existing product lines. Since the U.S. Consumer Product Safety Commission approved the Consumer Product Safety Improvement Act of 2008 (CPSIA), Ms. Lane has actively assisted many clients in ensuring that they are in compliance with the new, heightened regulatory requirements for consumer products. 

NITA Movie Review: By Jing, That’s All There Is To It. Right And Wrong.

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written by guest blogger, Judge Robert McGahey

youngMrLincoln

Some of us are old enough to remember when President’s Day didn’t exist.  Instead, we got two national holidays in February: Lincoln’s Birthday on February 12 and Washington’s Birthday on February 22. That recollection gave me the exact right movie for this month’s review: John Ford’s 1939[1] classic Young Mr. Lincoln, starring Henry Fonda (wearing a prosthetic nose you should ignore). While the Oscar-nominated story is highly fictionalized, its focus on justice, as exemplified by Lincoln, makes it well worth your time.

Early in the movie, we see the young Abe Lincoln running a store, none too successfully.  He takes some books in trade, books that include Blackstone’s Commentaries on the English Common Law.  He is immediately smitten with the idea of being a lawyer. We see him delving into those books and his recognition of what lies at the heart of the law: “By jing, that’s all there is to it. Right and wrong.”

The young Abe falls deeply in love, but tragedy strikes. He eventually decides to follow the path of becoming a lawyer.  In those days, that didn’t require a formally legal education, and Lincoln was soon practicing law in Springfield, the capitol of Illinois.  We see him in an hilarious (but effective) “negotiation,” witness his humor and the trust put in him by his fellow citizens.

And then, through a series of events, he is called on to represent two brothers accused of the murder of a deputy sheriff.  How he goes about this is the core of the film and what makes it wondrous for those of us connected with the law. Lincoln uses humor, perception, and reason to plead his case, all the while aware of the potential dangers to his two clients and their loved ones, particularly their mother, played by Alice Brady. I won’t give away what happens, but Lincoln’s final cross-examination of the main eyewitness to the murder is a treat.

The movie is interesting as one of the few that actually shows voir dire. And watch for a lynch mob scene that would be referenced years later in To Kill a Mockingbird, perhaps as a way of tying Atticus Finch to Abe Lincoln.

The film ends on a note that some may find corny, but that I’ve always found inspiring. Included in the cast are many of the famous “John Ford Stock Company”: Ward Bond, Donald Meek, Russell Simpson, and John Ford’s brother, Francis. There is Ford’s usual tight direction. (Ford was so concerned that the studio would edit the movie in a way he wouldn’t approve of that he destroyed all the takes he didn’t like just to prevent that.)

And, of course, it features Fonda’s brilliant portrayal of Lincoln. Fonda was reluctant to take the part, out of respect for Lincoln and his fear that he couldn’t do the sixteenth president justice.  I think you’ll agree that he succeeded admirably.  While there have been many portrayals of Lincoln, I think Fonda’s is still the best.  I watch it thinking, “That’s what Lincoln looked like and sounded like.”

You’ll enjoy Young Mr. Lincoln for what it says about Lincoln, about the law, and about the justice we can find in courtrooms—and you don’t even need a holiday to see it.


[1] Many (including I) regard 1939 as the single greatest year in the history of American film. Released that year, among others, were Gone with the Wind, The Wizard of Oz, Mr. Smith Goes to Washington, Goodbye Mr. Chips, Of Mice and Men, and Wuthering Heights. Ford directed three films that year, all classics: Young Mr. Lincoln, Drums Along the Mohawk, and the quintessential western, Stagecoach, the movie that made John Wayne a star.

Ensuring Top Notch Advocacy for Children and Families

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written by guest blogger and NITA Program Director Theo Liebmann.  Theo Liebmann is the Clinical Professor & Director of Clinical Programs at the Maurice A. Deane School of Law at Hofstra University.

childAdvocacy2As the Training the Whole Child Program approaches its tenth anniversary, it’s time to wallow in some nostalgia and take a look back . . . .

The Whole Child Program came to Hofstra in 2004 under the leadership of NITA stalwarts Angela Vigil, Mike Dale, and Andy Schepard.  Andy recruited expert faculty from around the country, and we have always mixed in NITA veterans like Angela, Mike, Sandra Johnson, and Ben Rubinowitz with newer stars like JC Lore and Zelda Harris, as well as local Legal Aid standouts like Brian Lamb, Carolyn Kalos, and Carolyn Silvers.  The mission of this crew has always been to use NITA techniques to improve the skills of public service lawyers who represent vulnerable children and parents in overcrowded family courts—a client population in desperate need of high quality representation.  Based on a case file developed by Angela, Tom Geraghty. and Diane Geraghty, the Program made some important choices right from the beginning that, in hindsight, were on the cutting edge:

  • Both the child protection and juvenile delinquency cases in the case file would be heard in a unified family court (“one judge, one family”) for the State of NITA, a practice which was much less common when the Program started, but now is widespread.
  • The child protection case was referred to a specially designed child protection mediation program, another practice that, while rare ten years ago, is now commonly seen.
  • Participants would represent Eva Pena (the child) without substituting judgment.  In other words, they would advocate for Eva’s stated position, regardless of whether that would serve her best interests.  Again, the Program was ahead of the curve, adopting a stance that is far more common today than in 2004.
  • The highlight of the Program soon became the brilliant segment on interviewing children that involved participants working with actual youth in foster care who belong to an organization that promotes advocacy for foster children.

While the participants have at times groaned a bit under the Program’s intensive workload, they deeply appreciate the training they are given and the effort and dedication that goes into it.  Here are a few sample quotes to leave you with and no better way to say Happy Birthday to this program!

I signed up for this class to try to overcome my “shyness” and lack of confidence.  The whole experience surpassed any and all expectations I had. I not only walked away with greater confidence in my abilities, but I was fortunate enough to meet so many wonderful people who care as passionately as I do about children and the law.

I signed up to really hone in on the nuances of my practice as well as correct some bad habits that have fallen into place. I feel confident and energized after finishing the program. I can’t wait to use some of the things I learned.

I knew that I had bad habits but was unsure on how to resolve these habits. My scripts now are getting sharper, more precise and less room for a respondent to take charge of the questioning. My closing statements are more structured.

People told me that I would work hard and learn a lot from any NITA course.  They were right!  This specific course, Training the Lawyer to Represent the Whole Family, is much needed in the field.  I believe that as more practitioners take this course, the quality of practice in the field will increase and so will the outcomes for children and families in juvenile delinquency and child protective proceedings.  Keep up the great work!

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Urgent Notice:

You may have heard the NITA Foundation is trying to raise $12,821.60 by March 31, 2014, to fund this vital New York child advocacy program through the NITA Foundation Public Service Program Fund. NITA cannot provide this and other public service programs without donor support, so please give today by visiting www.nita.org/Donate

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goal is to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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