Category Archives: Jury Selection
Keep in Mind that Judges Are Only Human
So often I see attorneys lose sight of the fact judges are only human. This means one has to be mindful of what you can reasonably expect of a judge. Help a judge by:
1. Making your arguments or briefs short and succinct. Get to the point. Judge’s have limited time. Don’t cite ten cases when one is right on point. Less is more when you’re trying to win a judge over.
2. Be professional and respectful. Judges don’t want to referee a food fight. Address your remarks to the court, not opposing counsel. Avoid personal attacks on opposing counsel. Attack your opponent’s arguments, not their integrity. Such attacks grate on a judge and are rarely effective. Once you offend someone, you lose your ability to persuade them.
3. Don’t inundate a judge with more work than he has time to complete. If you have pretrial motions and exhibits the judge needs to review and rule upon, make sure they are presented sufficiently in advance of trial so the judge she can accurately rule upon them. Have the Court set reasonable deadlines for all involved. Otherwise, you are inviting errors in rulings or a sua sponte continuance of your trial.
4. Pre-mark exhibits and give the courtroom deputy an exhibit chart that identifies each exhibit by number or letter, description and has columns to show if it is marked and offered, as well as a column to show if it is admitted or excluded. Have sufficient exhibits for all jurors, court staff, the witness stand and opposing counsel. You will endear yourself to the court and it’s staff.
5. Show up early to court and always make sure you have witnesses there on time and in reserve. Judges hate to waste their time or the jury’s.
6. If you can anticipate potential issues that might arise, have a trial brief or a copy of a controlling case on hand for the judge and opposing counsel. If you are sure an issue will come up, you might want to submit your brief or authority early. Judges hate surprises.
7. Learn the judge’s courtroom procedures for jury selection, how juror strikes are handled, the proper location for questioning a witness and when and how you may approach a witness.
8. Provide a copy of your jury instructions in electronic form to the court so they can easily be edited.
9. Check with other attorneys who have tried a case with the judge and learn his preferences, weaknesses and biases.
I hope these tips are of use. Good luck in your next trial.
An Unforeseen Value to Loss of Consortium Claims in Selecting a Jury.
As a Plaintiff’s attorney you want to identify jurors who will refuse to follow the Court’s instructions directing the grant of money damages for pain and suffering. I inadvertently found something that is even more polarizing and controversial than claims for such intangible losses… Loss of consortium!
I was picking jury in a rural county and questioned jurors about our claim for loss of services, love and affection . My concern was that religious jurors might feel that when you marry someone it is for “better or worse, for richer or poorer, in sickness or health till death do you part” thereby disqualifying them for monetary compensation. I was also concerned that other people may consider it double dipping since the injured spouse would recover for interference with the marital relationship as part of their claim for loss of enjoyment of life.
To my surprise and the court’s, there were so many jurors who stated they could not follow the law on this point and were unable to fairly consider such a claim, that we nearly ran out of jurors to empanel.
So include a claim for loss of consortium when supported by the evidence. It may be your best barometer for finding and eliminating for cause, jurors who cannot follow their oath and fairly compensate your client and their spouse for all their harms and losses.
Polling a Jury: How to Keep Yourself Out of La La Land…
So the clerk finishes reading the jury’s verdict and your client has just lost. What do you do? Why read the jury rules:
RULE 30. JUDGE TO READ THE VERDICT
When the jury has agreed upon its verdict, the foreperson shall sign the appropriate verdict form. When returned into court, the judge shall read the verdict. The court or either party may poll the jury. If a juror dissents from the verdict, the jury shall again be sent out to deliberate.
I always poll a jury just in case. After seeking permission of the court, I run down the line and separately ask each juror if this is their verdict.
It’s painful to hear the bad news again, but you owe it to your client and your case to be sure. As Yogi Berra said, “It ain’t over, until it’s over.”
Hey, just because the Oscars never announced the wrong winner in 88 years doesn’t mean it cannot happen. If you fail to poll the jury, you could end up in “La La Land” instead of basking in the “Moonlight.”
Leaders, Loners and the Art of Jury Selection.
Often times you cannot eliminate troublesome jurors. This can be a real problem since developing challenges for cause against an unfavorable juror can be difficult and at times impossible. In such cases, you want to use your peremptory challenges against such persons if they will affect the outcome of your case.
In federal capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges. In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.
Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”). In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges. In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges. In all state civil cases, each side has 3 peremptory challenges. When several defendants are tried together, they must join their challenges. Indiana Jury Rule 18.
As to alternate jurors, one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated. Id.
So how does one make the best use of their peremtory challenges? Well if you cannot get rid of the juror for cause, then you have to figure out which jurors to focus on for purposes of exercising your peremptory challenges. I suggest that you focus on persons who are either loners or leaders. The bulk of people who make up juries are essentually followers. They will tend to go with the flow.
Ultimately persons who are natural leaders will exercise the greatest influence over the juror’s deliberations. It’s important to identify persons who either have leadership qualities or background traits which will lead other jurors to look to them for guidance. If a person has had prior jury service, then other jurors will naturally look to them for guidance as to what is happening in the court room and how to handle their deliberations. Likewise, persons who have assumed the role of leadership in either their profession or in outside organization will have the greatest likelihood of assuming a leadership role on the jury. Person who meet this criteria deserve special attention and need to be thoroughly questioned to make sure that they will not be a problem for your case.
Persons who are potential “loners” also need to be thoroughly questioned since they could hold up deliberations or force an undesirable compromise. Loners have a tendency to stand their ground and be unwilling to compromise or conform to the wishes of the larger group. I have had more than one jury where I have learned after the fact that a lone juror was a hold out for a particular verdict. Their staunch and unyielding position results in either a compromise verdict or a hung jury. When trying to identify a loner, you need to identify whether or not the person choses voluntarily to be a loner or is forced by circumstances to be a loner. Those who voluntarily decide to be a loner, act as a nonconformist and set themselves apart from the rest of society, can be a potential problem. Such persons are used to standing alone and may hold out for a particular verdict even though their opinion is unpopular and outnumbered by others.
Ultimately, you want to use your peremtory challenges on persons who will likely effect the outcome of your jury’s deliberations in an adverse fashion. So first look for the “leaders” and “loners” in your next jury panel.
FAST AND DIRTY JURY SELECTION
The time allowed for jury selection now is typically very brief compared to the time allotted to attorneys years ago when I first started practicing. I used an approach similar to the one suggested here in picking criminal juries where I had much more time to explore the qualifications of jurors and their potential biases. However, I usually saved the line of questioning for use later in my examination of potential jurors. Now, I usually start off with this line of questioning and say something along the following lines:
I started off my career, as a law clerk for a federal judge and was privileged to listen in when the judge would talk to jurors after a verdict. I realize that for most people this is their first and maybe only involvement with the legal system. They all take their responsibility very seriously and want to do their very best to render a fair and just verdict. However, when I got out there and started questioning jurors myself, I made a mistake in how I approached the whole process. I forgot that potential jurors don’t have enough experience with the law and our system to fully appreciate what is really required of them to take the oath to” truly” and “fairly” decide a case.
As a state prosecutor I learned after the fact that potential and actual jurors sometimes had very strong feelings about a particular type of case that through no fault of their own prevented them from being able to fully and fairly without reservation take the oath as a juror. This was not their fault… It was the fault of the attorneys. We did not let them know what was expected.
For example, I had a case with a school teacher who was picked as a juror on my client’s case. My client was very seriously injured. The jury eventually returned a defense verdict after telling the judge that they were hung and could not reach a verdict. This juror who ended up being the foreperson called me three days later and confessed to me that she did not believe in people obtaining money for “pain and suffering” even though it was required by the law in the Court’s instructions. She also confessed that she really did not believe in people suing for money. I asked her why she never mentioned this when questioned and she said that my questions were not specific enough to make her realize that this was important.
I have to humbly admit that I may not be smart enough to ask the right questions. I need your help. So if I am talking about a topic and you think there is anything in your background that you would want me to know if you were in my client’s position, please let me know about that topic.
I know there are certain types of cases that I could not sit on as a juror. I would be unable to take the oath without reservation to act as a fair and impartial juror. There is nothing to be ashamed of in admitting that… In fact, that sort of honesty and candor should be applauded. If it is something that you do not want to publically discuss, just let me know and we can discuss the topic in private with just the attorneys and the court.
Will each of you agree to do that for my client? Thanks.
I will then move through the various topics on my voir dire such as:
1. The type of claim.
2. Burden of proof requiring a relatively low threshold, proving that the greater weight of the evidence means showing that your position is ever so slightly greater to have occurred that a flip of a coin of heads over tails.
3. Vicarious liability or strict liability.
4. Preexisting condition standard.
5. Various types of damages, wages, medical bills, future damages, pain and suffering, loss of enjoyment of life, loss of function, scarring, etc.
6. Outside expertise such as attorneys, doctors, nurses, engineers, etc.
7. Outside knowledge of the parties or case.
8. Loss of consortium.
9. Civil litigation and frivolous claims or defenses.
10. Only chance to recover – future damages.
11. Prior jury service
12. Legal experiences or education.
13. Medical experiences or education.
14. Scientific or engineering training.
When someone is honest enough to admit they cannot truly and fairly act as a juror, I first thank them for having the courage to admit that this is not the type of case for them to serve on as a juror. This is very important, especially with the first juror who admits their limitations.
Admitting that you cannot be fair is not an easy thing to do. If they admit bias, then I lock them in on their bias. I explain that based upon what they are telling me, that they could not swear to God and the Court that they could, without reservation, swear an oath to truly and fairly act as a juror on this case.
I follow up and obtain their agreement that no amount of questioning or cajoling by the Court or opposing counsel would change their answers to my questions.
I then ask the other jurors on the panel if anyone has feelings similar to the last juror? I then work through sealing the deal with the other panel members as outlined above. Finally, I conclude with my initial point:
Is there anything else any of you can think of that I wasn’t smart enough to ask that you would want me to know about if you were in my client’s position?
I then thank them for their help and candor and pass the jury panel.
Empowering the panel members like this encourages candor and makes them feel good about admitting their bias. Judges appreciate this type of voir dire as opposed to a bunch of conditioning questions that are primarily designed to try your case in voir dire. This form of questioning will dramatically increase the number of jurors you are able to eliminate for cause.
My last civil jury trial, I was able to eliminate five jurors for cause. This frees upon your preemptory challenges for use with person you suspect are not being candid and are bias.
Because you are focusing primarily of eliminating jurors for cause or bias, most judges will even give you additional time to conduct voir dire if you start eliminating a large number of panelists and still have persons who have not been questioned.
Confirmation Bias: Foe of Justice and Truth
“Confirmation Bias” has nothing to do with the Holy Spirit. It is a mindset we all are susceptible to in the way we see the world. ‘Confirmation Bias’ is a psychological phenomenon that explains why people tend to seek out information that confirms their existing opinions and overlook or ignore information that refutes their beliefs.’
“Confirmation bias” can lead to misdiagnosis, researching errors, missed evidence and analytical flaws in our every day thinking. That’s why it is important to always try and strive to keep an open mind when you investigate claims, research legal issues and critique the analysis of your experts as well as those of your opponent.
In medical malpractice cases for example, the doctor can start off with a predetermined idea as to the cause of the patient’s medical problem. This can result in the doctor ignoring or overlooking important evidence which would lead to an accurate differential diagnosis. The patient’s suffering is prolonged and exacerbated because the wrong treatment is given.
In the relm of criminal litigation, police and prosecutors may prematurely focus on a prime suspect and ignore other persons who could potentially be responsible for the crime at issue. The popular Netflix docu-series “Making a Murderer” about Steven Avery is a classic example of how this can occur. The focus of the investigation is prematurely narrowed. As a result, investigative leads are ignored. Evidence is overlooked and lost forever.
An excellent book, “The Innocent Man” by John Grisham also documents the same type of errors. The belief of the police, that they had their man, blinded them to the truth. This resulted in an innocent man, Ron Williamson, being wrongfully convicted of a crime he did not commit. At one point, Williamson was five days away from being executed. Ironically, the actual perpetrator of the crime sent the police chasing the false lead and caused the State to prosecute and convict the wrong man (Ron Willamson) of the murder along with another man. This man’s only crime was being Ron’s friend and refusing to give false testimony implicating Ron Willamson in a rape-murder neither of them committed. Thanks to the Innocence Project, both men years later were released and exonerated through DNA testing performed on the victim’s clothing.
Such informational bias and prejudice on the part of juries may make a fair verdict impossible or very difficult to obtain. You must deal with this problem in your voir dire examination and seek leeway from the court to thoroughly explore such biases. This requires the use of mock juries, jury questionnaires, individual examination of jurors, adequate time for jury selection and in some instances a change of venue or venire.
Social media, sensational news articles and reader comments can pollute the jury pool. Bias and unsubstantiated claims fill the air of the community. These must be explored. In this regard, please read the article below:
So keep an open mind and it just might be the key to your case.
Plotting Your Strategy: Does Your Trial Have a Theme?
A theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.
There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:
This is an important case. It’s important for a lot of reasons – as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.
Below is a short list of some themes:
a. Safety – We do not allow profits to take priority over safety.
b. Keeping Promises – A man’s word is bond.
c. Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.
d. David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.
e. Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.
f. Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.
g. Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.
h. Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.
i. Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.
Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.
Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.
Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.
I’ve Been Called for Jury Service… What Do I Do Now?
THOMAS JEFFERSON (1789): “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
My last blog post made me realize that potential jurors need guidance. What is their role? What should they do if called to serve? Jury service is the greatest civic responsibility we have. Our service is necessary, if we want to live in a free democratic society. Citizens have braved criticism, threat of punishment and public ridicule to give their verdict to insure liberty and justice for all.
The right to trial by jury is so important that it is guaranteed twice in the U.S. Constitution under the 6th and 7th Amendments for criminal and civil trials, respectively. Grand jury protection is required for the issuance of criminal charges in federal court under the 5th Amendment to the U.S. Constitution.
Here are some do’s and don’t to keep in mind:
1. In the days leading up to your jury service, don’t read the newspaper or watch television or read the news.
2. Dress like you respect the proceeding and be on time.
3. Accurately and completely answer your jury questionnaire. This is the primary source of information the attorneys will use in deciding if you should serve.
4. Pay close attention to the questions asked by the attorneys during jury selection. Fully and accurately answer the questions asked as someone’s well-being or liberty hangs in the balance.
5. If you have a physical handicap such as language difficulty, eyesight or hearing problems, then let the bailiff and parties know of your limitations, even if not asked.
6. Do not discuss the case with your fellow jurors until the Court says that you may.
7. Tell the Court or parties if you have been subpoenaed as a witness in the case, are interested In a similar suit begun or planned, have an opinion as to the outcome of the case due to information received from a witness or news report, if you are a defendant in a criminal case, biased for or against a party, related to a party, are a felon or in law enforcement or otherwise cannot be fair.
8. Jurors must be fluent in English and able to read and hear.
9. Do not conduct research on your own or as a group,
10. Do get rest.
11. Do not use dictionaries, the Internet, or any other resource to gather any information about the issues in this case.
12. Do not investigate the case, conduct any experiments, or attempt to gain any specialized knowledge about the case.
13. Do not receive help in deciding the case from any outside source.
14. Do not use laptops or cell phones in the courtroom or in the jury room while discussing the case,
15. Do not consume any alcohol or drugs that could affect your ability to hear and understand the evidence,
16. Do not read, watch, or listen to anything about the trial from any source whatsoever, including newspapers, radio, television, or the Internet,
17. Do not listen to discussions among, or receive information from, other people about this trial, or
18. Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.
19. Do not talk to any of the parties, their lawyers, any of the witnesses, or members of the media. If anyone tries to talk to you about this case, you must tell the bailiff or judge immediately.
20. Do not discuss the case with anyone other than your fellow jurors.
21. Do not abandon your opinions on what you believe is a just verdict just to get out of there.
22. Be courageous. You are the embodiment of justice.
24. Be respectful of your fellow jurors opinions, listen carefully and keep an open mind.
25. Follow the judge’s instructions.
26, Report anyone to the bailiff who fails to obey the court’s rules.
27. Remember you cannot be punished for hanging a jury’s verdict. Follow your conscience.