Vol. 72, No.
2, February 1999
Angus on Jury Selection
Many jurors are so bored by voir dire that they are sick of the case
before it starts. This is one reason why we are losing lawyer-conducted
voir dire in several states and in most federal courts. But there are some
things lawyers can do about it. Here are 12.
By James W. McElhaney
"The problem is, I disagree with the way most lawyers conduct jury
voir dire," Angus said.
"But that's exactly why I want you to give the talk,"
I said. "I think more lawyers should be exposed to the Angus method
of jury selection."
I had gotten stuck putting a faculty together for a bar association training
program, and was trying to get Angus to participate.
"Actually I'd enjoy it," said Angus. "But I certainly
don't claim that I have a whole theory on how to do voir dire. I just
have some ideas - okay, they're principles - that I think
are important and which ought to help people do it."
Come the day of the program, Angus showed up at the training center with
a stack of one-page outlines for everybody. Here is the outline, together
with the notes I made during his talk.
1) While you're picking a jury, they're picking a lawyer.
Don't think the
jurors are all just sitting there, quietly growing like mushrooms, while
you are deciding which ones to pick. In addition to trying to answer your
questions, they are forming initial impressions about the parties, the case,
the judge, and especially the lawyers.
They know there are at least two sides to the controversy, and they realize
that most of their guidance has to come from one or the other - or
both - of the lawyers.
2) Be the guide they can trust.
You want to be the one they pick to lead them through the thicket of
facts and law that make up the case. And they are only going to choose you
if they can understand what you say, trust you to be honest and sincere,
and feel that you are not trying to sell them a bill of goods.
Face it. The biggest fear most jurors have is that they will be led astray
by some wily advocate who made a bargain with the forces of evil in return
for the power to make the wrong side look right.
3) You have to earn your credibility.
Jurors want to do the right thing, and they come into court being suspicious
of the lawyers and mistrustful of the law. The law, they think, is often
technical and legalistic, flying in the face of common sense. In fact, in
a nationwide survey done by Metricus Inc., in Palo Alto, Calif., 60 percent
of those surveyed agreed with the notion that a trial is a "moral arena,"
in which it is more important to do the right thing than the legally correct
thing. In other words, six out of 10 people are willing to ignore the law
if it gets in the way of what they feel is the right thing to do.
These same folks, by the way, will promise you that they will faithfully
follow the judge's instructions (which they probably won't do,
even if they understand them).
Jurors' feelings about lawyers are similar. They are certain we
have taken whole courses in asking misleading questions and making tricky
arguments. In the same Metricus survey, 73 percent of those surveyed somewhat
or strongly disagreed with the statement, "Most lawyers would never
lie to a jury."
The point is, you have to earn your credibility. It's not handed
to you.
But how do you do that?
- By being understandable. There is a lot of truth to the notion that
the lawyer who makes the most sense wins.
- By not sounding like a lawyer. The more technical and obscure you sound,
the more suspicious of you they are. You have to leave the legalisms at
home and learn to talk like a real person again.
- By not acting like a huckster who is arguing the case before the jury
even knows what it is.
- By not pushing jurors for promises and commitments about how they are
going to decide the case in various situations. People are suspicious of
being pinned down before they even know what the options are.
- By being plausible and reasonable, and not trying to sugarcoat your
side of the case.
- By being plain, simple, open, and receptive.
4) You are the most important witness in the case.
You have to be the guide they can trust - otherwise the jury won't
credit what you tell them or even believe the witnesses you call to the
stand.
But you are more than a guide. For practical purposes you are a witness,
and you get to testify four times during the course of a trial: jury voir
dire, opening statement, cross-examination, and final argument.
Hold on a second, you say. How can you be a witness when you are not
permitted to raise your hand and take the oath or take the stand to testify?
Because when you tell the jury a little about the case in voir dire,
they are learning about the facts from you. Even though it is not technically
testimony, psychologically it performs the same function, and is a great
opportunity to get important information across as well as create some lasting
impressions.
5) Give an intriguing snapshot of your case.
Except in some Texas state courts, you probably aren't going to
be permitted to make an extensive statement about the case. But that doesn't
mean what you say isn't important. Voir dire is as close as you are
going to come to writing on a clean slate in any trial, so you want to make
a strong impression - without arguing your case.
Why not?
Because when you argue your case you are not being a witness, you are
being an advocate. You are not giving facts, but your opinions - how
you feel about the case. And at this point you haven't earned the right
to tell them how you feel, much less tell them how they should feel.
It is facts that have impact at this point - word pictures that
tell the story of an injustice done to the plaintiff, or explain what will
be an injustice to the defendant if the plaintiff wins.
When you argue the case in voir dire, you take off the hat that says
"Guide," and put on the one that says "Fred's Water
Beds" or "Slick's Used Cars."
6) You can't really pick a jury.
Take a look at the jury panel you are about to talk to. The operative
word is WYSIWYG ("whizzy wig"). It means "What You See Is
What You Get." And just like the bubble-paks hanging from the rack
in the discount store, everything is already there.
You don't get to pick the jury - they've been picked for
you. All you get to do is talk to them and then decide (on some theory or
other) which ones worry you more than the others. These are the folks you
challenge peremptorily.
And mostly we never find out if our decisions were good or not. (That's
probably just as well. A survey done in Chicago several years ago showed
that a number of prosecutors and defenders had "negative correlations"
in challenging jurors in criminal trials. In other words, some defenders
excused jurors who would have acquitted the defendant and kept those who
voted to convict, while some of the prosecutors did the reverse.)
So if you can't really pick a jury because you only have a handful
of peremptory challenges, what do you do besides give a short introduction
to the case and ask some questions that help you decide who to excuse?
The answer to that question is what voir dire is all about.
7) Don't shoot yourself in the foot.
You will see it every day. A very serious young lawyer - we will
call him Ernest Droner - stands in front of the jury panel working
his way through the venire with the questions he has on his legal pad.
Intent on his notes, he barely glances at the next person on the list.
"Ms. Maxell," he says, "I'd like to ask you a few
questions, too."
"Excuse me," she says, "but the name is Maxwell -
with a 'W.' It's pronounced 'Max' 'Well.'"
"Ah, yes," says Droner, "thank you, Ms. Maxell" (making
a note on his pad, but still not making any eye contact). "Now my question
is, if selected to serve on this jury, do you promise that you will follow
the instructions that Judge Mudrock will give you at the end of the trial
concerning how to decide the case?"
"Of course," says the miffed Ms. Maxwell.
"And if it were up to you to write the law, and you would make it
entirely different from what Judge Mudrock tells you, would you still follow
the law as he instructs you?"
"Yes, I will," she says.
How many shots in the foot did Ernest Droner inflict on himself? At least
six.
- No eye contact.
- He ignored her correction of the way he pronounced her name.
- He treated her like a laboratory animal or maybe something growing
in a Petri dish when he took notes about her right in her presence.
- When he said, "If selected to serve on this jury," he sent
Ms. Maxwell the message that maybe she wasn't good enough to make
the cut; he would decide whether she was qualified.
- He pressured her for a meaningless commitment about following the rules,
which was even more annoying.
- The subliminal message he sent Ms. Maxwell about his case was awful.
When he asked whether she would follow the law even if she didn't
like it, in effect he said, "Ms. Maxell, you're not going to
like our case. About the only way you could decide in our favor would be
to follow some archaic rules that you will find personally repugnant."
Put yourself in the jurors' shoes. Understand they feel uncomfortable,
singled out, that they are asked for personal information about themselves
by someone who doesn't even know them.
Sure, asking questions is part of what you have to do. It's your
job. But at least you can be considerate in how you do it and interested
in the answers you get.
And no matter how you work the panel, make sure you include everyone.
A juror who feels slighted is not your friend.
8) Everyone is a bundle of biases and preconceptions.
This doesn't mean that everyone is bigoted, narrow-minded, disagreeable,
and unfair - although these days, people like that are not in short
supply.
It does mean that everyone - including the nicest, fairest, most
thoughtful, and open-minded people you know - has biases and preconceptions.
Call them the attitudes that reflect a lifetime of experience, if that
will make you feel more comfortable. The point is everybody has scripts
- personal stories - values - experiences - that they
use to try to make sense out of new situations.
Reasoning by analogy, people draw on their inner scripts to explain events,
to predict how conflicts play out, or to process the situations with which
they are confronted.
Without even being aware of it, people evaluate stories by their own
inner scenarios that they use to explain why events take place, how people
behave, whether someone is telling the truth, whether something happened
the way other people claim it did, or whether it even happened at all.
Then, depending on a whole series of other habits, they may search for
some apparently neutral principle they can use to justify their decision
(which is the life's work of professional decision-makers such as judges).
A "fair and impartial jury" is a judicial dream - one
of those delusions we cling to so the whole process will seem more rational.
While we really can't have impartial juries, that's all right
so long as we preserve the right for each side to cull through the folks
who got caught in the jury net this time. That way we can try to even out
the distortion created by the random selection of just a small number of
people. With six or eight or 12 jurors you are more likely to have a cross-section
of attitudes than when you have only one - the judge.
9) Don't think you can talk a juror into changing his or her
position on anything.
All over the United States, lawyers try it every day. They think they
can take jurors who are hostile to their case and win them over with a few
probing questions and two or three well-turned phrases.
Why do we think we can reverse the intellectual and emotional toilet
training of a lifetime with a handful of questions and a brief sermonette?
Is that what your law degree qualifies you to do?
Never try to teach a pig to sing. It not only doesn't work, it really
annoys the pig.
Which is what happens with jurors. You attack their basic attitudes,
and they won't reject them. They will cling to their attitudes and
reject you.
Does this mean you should forget about their biases on jury voir dire?
Absolutely not. Learning the jury's inner scripts is at the heart
of what you are doing on voir dire. Just don't try to straighten out
their thinking.
There comes a time to violate this rule. There are situations when you
and your client stand alone against injustice, when the only hope is to
appeal to people's better nature. It is a tough job, which is why we
usually try to avoid it with a challenge to the array or a change of venue
instead.
![McElhaney](/SiteCollectionImages/WisconsinLawyer/1999/02/mcelhaney.jpg)
James W. McElhaney is the Joseph Hostetler Professor of
Trial Practice and Advocacy at Case Western Reserve University School of
Law, a frequent speaker on trial techniques and the author of three highly
acclaimed books on litigation. Every month he reaches more than 450,000
lawyers and judges through his column "Litigation" in the ABA
Journal. This article first appeared in Litigation Journal. It is
reprinted here with the permission of the publication and the author.
See why thousands of lawyers read
what Jim McElhaney has to say about how to try lawsuits
Copyright© 1997 and 1998
by James W. McElhaney.
All rights reserved. |
10) You can't reason down from statistics.
Jury surveys can give you a lot of information about local attitudes
that will help you frame the issues in the case. You may learn, for example,
that 65 percent of the potential jurors in your area are mistrustful of
the big corporation you represent.
This ought to tell you that you have a serious credibility problem you
need to be concerned about. Maybe it is a justification for doing a special
questionnaire that will help identify which potential jurors have this attitude.
But this survey does not tell you that 65 percent - 11.7 people
out of the panel of 18 you are talking to - have this attitude. It
might be all or none or anywhere in between. When you have a reliable survey,
you can apply the numbers with some confidence to larger groups. But the
smaller the group, the less reliable the number.
11) Ask, don't tell. Listen, don't talk. Feel, don't
think.
The Master Benchers of one of the American Inns of Court in a large midwestern
city put on a demonstration of sophisticated jury selection techniques.
The lawyers did all the talking. Other than an occasional yes or no,
none of the jurors said anything.
After the demonstration, there was a serious debate about which jurors
should be excused. The discussion went on for some time until one lawyer
said that since the jurors didn't really have a chance to say anything,
no one knew how any of them would look at the case.
There is a natural tendency for lawyers to do a lot of talking.
Sure, there are some important things you need to do on voir dire. You
need to introduce your case and your client in your initial snapshot of
the facts. You may need to introduce some key ideas that everyone will have
to understand. But this is your one chance to hear the jury talk before
they have their final word and deliver their verdict.
But how do you get them to talk?
Ask. Get each one to tell you a little about themselves. What they like
to do, what's important in their lives, what they like to read, what
they watch on television.
Share your concerns about the case and invite their responses. Ask how
they feel about the central issues in the case. Are they suspicious of personal
injury cases? Do they think there are too many lawsuits?
If you represent a motorcyclist who was hurt in an accident, ask how
they feel about motorcycles and motorcyclists.
If you represent the electric power company, ask if the power company
ever did something to them like making a mistake on their bill or improperly
turning off their lights.
Let them know it's all right to talk about these things.
What? You think it may be better to shut this line of questions down
lest someone say something nasty about the power company? It's a lot
better for them to say how they feel when you can find out about it than
it is to wait for jury deliberations where they will write it in their verdict.
Encourage them to talk about their emotions by using words like "feel,"
"react," and "respond" instead of words like "think,"
"reason," or "analyze." You want to be in touch with
their feelings, not their rationalizations.
Finally, what's the good of all this if you can't really pick
a jury?
Besides giving you an idea how to exercise your peremptory challenges,
you need to know to whom you are talking. That's the only way you will
know how to present your case so it will speak to the people who will be
deciding it.
12) Keep it short.
Many jurors are so bored by voir dire that they are sick of the case
before it starts.
That is our fault, and it is unforgivable. It is one of the reasons why
we are losing lawyer-conducted voir dire in a number of states as well as
in most federal courts.
There are some things we can do about it. Use questionnaires to speed
up the process. Learn to work the panel as a whole instead of asking each
potential juror the same series of questions. Stop trying to abuse the process
by arguing the case before it starts. Be willing to work within reasonable
time limits.
It's better to have only an hour or so than no time at all.
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