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.

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.

Wisconsin Lawyer