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:
- Are there any jurors who believe that if a driver of a vehicle rear-ends another vehicle, no matter what the circumstances, the rear-ending driver is always 100 percent responsible for any accident?
- Are there any jurors who believe that if a driver of a vehicle is using a cell phone in any manner and a collision occurs, the driver using the cell phone is always 100 percent responsible for any accident?
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.
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.
written 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.