Jury selection is just as important to your case as the impending litigation. If you don’t have a good jury, you might as well just give up and go home because a bad jury can result in an unfavorable verdict for your client. As a litigator, you want to pick the best possible people for coming to the conclusion in your favor. So, how can you pick the best jurors from your jury panel? Follow these easy steps for picking a winning jury:
Properly preparing yourself for jury selection is the most important step in picking a winning jury. Going into jury selection unprepared can result in a bad jury causing an unfavorable verdict for your client. From the moment you take a case that will require a jury selection, you should start thinking about what kind of jurors you need. Ask yourself: who will identify with your client and your case, do you need a cooperative group working together or an independent individual standing out assertively, will the better juror be sympathetic or cold-hearted? You need to go in with a plan knowing who to keep and who to eliminate. If you are a plaintiff’s attorney, a jury of sympathetic people working together to come to a conclusion will better suit you; however, if you are a defense attorney you may need an independent and assertive juror to stand their ground until the end. These are important considerations to be made prior to jury selection. You should also go over the jury instructions prior to jury selection to ensure no mistakes are made; you do not want to be called out by the judge in front of the jury panel because judges are god-like to jurors and you want to be viewed as respectable and competent.
Determine the facts and issues of your case and ask yourself: what is it about my case the jury is going to want to know, what will I have to focus on and what will I have to explain to the jury, is my client unlikable, is the situation uncomfortable or unlikeable? These questions will help you to decide who to keep for a winning jury. If you need your jurors to understand a complex idea or definition for your case to end favorably, you do not want to keep uneducated or uncultured people if it is likely they will not understand a key aspect of the case. You do not want to keep attorneys or experts on a jury because the other jurors tend to lean on the discretion of an expert and do not form their own opinions. Similarly, you do not want to keep a psychologist on a jury for a case involving a mental defense.
On the day of jury selection, ensure that you are dressed professionally, look put together and remain calm. The jurors will be judging you the moment you walk into the courtroom and they will hold on to their preconceived notions about you. They already know that you are a lawyer, you must now try to relate to them on a personal level. Keeping yourself composed and being respectful to the judge and opposing counsel will go a long way as you are always being watched. Do not look disheveled or overly anxious, the jurors will think you are unprepared or incapable of doing your job and your case will suffer.
KNOW WHO AND WHAT YOU ARE LOOKING FOR
On selection day you must be particularly aware of your potential jurors from the moment they walk into the room, take notes and try to remember names (people love it when you call them by their name). Pay close attention to who the jurors walk in with and sit next to, what they are carrying when they walk in and what they are wearing. Look immediately for uneducated people and eliminate them first; you need jurors who can think, listen, understand and relate. Look for people giving signs that they just do not want to be there: rolling eyes, nasty tone of voice, angered expressions. You want to eliminate people who will not come to a thoughtful or reasonable conclusion and those who are annoyed just by being there will not be the right people to keep on your jury.
Taking note of a potential jurors body language can tell you a lot about that person. You will want to eliminate those sitting with their arms crossed and wearing an annoyed or irritated expression on their face, rolling their eyes, staring at the wall or looking down at their feet. This person is not being perceptive to you and is unlikely to cooperate. To determine whether the potential jurors are listening to what you are saying, look at whether they’re slightly nodding their head or ignoring distractions around them, crinkling their brows or keeping eye contact with you. You should also notice the body language of boredom: doodling or talking to others, looking anywhere but in your direction and especially at the clock, or repetitive actions like tapping their toes or drumming fingers on a desk. These are all signs of an uncooperative juror. But remember what your purpose is. If you are a defense attorney, you may be looking for an uncooperative juror to hold out on the others so these characteristics would lend to a winning jury in your situation.
How To Know When A Potential Juror Is Lying
Potential jurors may not be entirely truthful in order to avoid jury duty or just to keep you from knowing the truth for whatever reason. When someone is not answering truthfully they tend to speak in a very monotone or bleak manner, will avoid making eye contact with you and seem anxious or nervous. Look for facial gestures that do not match the words like a fake smile or wink at an inappropriate time or instead of answering the juror poses your question back to you. If you sense a potential juror is lying, switch the subject and ask a new question. Generally a liar becomes more relaxed with a new topic while honest people will seem confused with the abrupt change in topic and may ask to go back to the previous question. If you believe you have an untruthful potential juror, eliminate them; liars are unpredictable.
How To Keep A Winning Juror
When you have determined that you want to keep a potential juror for your jury, you must ignore that juror completely. You should never let opposing counsel know which jurors you plan to keep or they will be eliminated almost immediately. Similarly, you should be keeping note of potential jurors opposing counsel seems to be favoring and eliminate those people.
HOW TO QUESTION POTENTIAL JURORS
There are certain types of questions you should use in order to pick a winning jury.
People do not like to admit that they have problems or that they are not perfect so you must approach them strategically and ask about group experiences rather than personal interrogating. For example, instead of asking each juror directly, “Have you ever been to a psychiatrist?” you should ask the potential jurors, “Has anyone here known someone who has been to a psychiatrist?” This will lead to more truthful answers than asking each juror individually because some people will be embarrassed to admit they have been to a psychiatrist to an entire courtroom of people.
When a potential juror says something you don’t like and you plan to eliminate them because of that statement, you should ask the group, “Does anyone else feel the same way X feels?” Anyone who raises their hand you will want to eliminate along with X. Similarly, when a potential juror says something you like, you should ask the group, “Who else feels this way?” and take note of the jurors who would side with X on that subject.
On A Scale From 1 to 10
When you have a question that is not just black and white but has a grey area in between, you should ask “On a scale of 1 to 10…” to get a better sense of where the potential jurors lands on a certain issue. When an answer is on either end of the scale at 1 or 10 you should be aware of the definitiveness of the jurors answer.
You should consider using a questionnaire when appropriate and you have permission to do so. People tend to be more truthful behind a piece of paper than they are in front of a room full of strangers. No one is going to answer “No” to the question “Can you be fair?” A questionnaire is more likely to get potential jurors to share more revealing information. Remember, if you use a questionnaire you will get better information if you use more detailed questions.
THE BEST WAY TO SPEND YOUR TIME IF YOU HAVE TIME TO SPARE
If you have time to spare before jury selection or you are given a continuance, spend that time wisely! You should take your list of potential jurors and run, as fast as possible, to the nearest computer and get on Google, Facebook, LinkedIn, etc. and start researching. Because most people will be on their very best behavior during jury selection (or very worse behavior, if they are trying to dodge their jury duties), using internet searches and social media is a great way to determine who that person actually is and not just who they are presenting themselves to be. If you have an assistant, put them on the task immediately. It will benefit you on selection day to have an idea of who the potential juror is in real life; you can use this information to determine whether the person who shows up at selection is acting genuinely or if they are faking it. As discussed above, it is advantageous to know when a potential juror is lying.
The American Gallery of Juror Art houses a collection of juror artwork which is taken directly from the booklets handed out to jurors for trial. The jurors use these booklets as scratch pads for taking notes and must leave them with the court upon dismissal. The contents of these booklets is a useful tool for understanding jurors and what is going through their minds during trial. Those booklets filled with drawings have been reproduced with the author’s permission for this website. If you have some time, these drawings can help gain some insight on potential jurors and give you a good laugh along the way.
Author Harvey Levine explores what exactly to ask potential jurors in “Jury Selection”. When you know prior to selection who are going to be your potential jurors, this book is a great resource for determining what questions to ask which types of people. Author Jeffrey T. Frederick provides an in depth guide to the art of jury selection in “Mastering Voire Dire and Jury Selection” in focusing on the skills needed to conduct a successful jury selection, ultimately improving your chances of a favorable verdict at trial. If you have the time, these two books can really help any attorney prepare for a successful jury selection.
How To Earn CLE Credit on this Topic
For additional information on this topic, Attorney Credits offers a course titled “Picking A Winning Jury.” The course is available for CLE credit in the following states: Alaska (AK), Arizona (AZ), California (CA), Connecticut (CT), District of Columbia (DC), Florida (FL), Georgia (GA), Illinois (IL), Maryland (MD), Massachusetts (MA), Michigan (MI), Nevada (NV), New Jersey (NJ), New York (NY), Pennsylvania (PA), South Dakota (SD), and Washington (WA).