What is the most important part of a trial? Jury selection. If you get the wrong jurors, you will lose regardless of the strength of your case. So, how do you pick the right jurors?
Voir dire is really jury “de-selection”. You want to remove the jurors who have preconceived negative beliefs about lawsuits and lawyers (a/k/a nightmare jurors). Nightmare jurors are not in short supply, but getting them to share their feelings and beliefs is damn hard. A juror will never admit to having a racial bias and few will even admit to hating lawyers and lawsuits.
There is a delicate art of jury selection for finding and removing the nightmare jurors. These are 7 tips for removing a nightmare juror from your jury.
#1: Active Listening: Being a good listener means being a reflective listener.
No judgments or attempts to correct the speaker. If a juror says something that you disagree with, thank them for being the first to speak up. Add one idea at a time.
#2: Share Your Danger Point: The danger point is something that bothers us about the case—share this with the jury. Ask yourself, How do you feel about your client’s behavior?
You do not need a whole bunch of facts:
“An autopsy shows that Joe [not “our client”] had cocaine in his body when he died, and we will have no explanation for this. How do you feel about this?”
Introduce the danger point and then ask, “Should we even have a trial? Should we sign the verdict sheet now?” Do not soft sell it—the jury will figure it out. No one is going to change their mind. You can’t be afraid of getting bad answers. Just trust the jury.
#3: Create a Group Discussion: You are trying to start a discussion among the jurors. Once you’ve identified a nightmare juror, ask another juror what they think, “Mr. Jones, what do you think of what was just said?”
Don’t be afraid of negative comments by jurors—just let it happen. The floor of the courtroom is not going to open up and swallow you.
The goal is to build a tribe and we want to be the leader of the tribe. The most important thing is building credibility.
#4: Honor the Jurors’ Answers: Lower the bar—give voice to the nightmare juror, e.g., “Thank you for being the first to speak up. I really appreciate that.”
You should be engaged in the answer.
(a) Mirror the answer, e.g., “What I hear you say is…Is that right?”
(b) Express Interest: “Yeah, that’s interesting, I never thought of that.”
(c) Ask for More: “Anything else you’d like to share with us?”
#5: Watch for Non-Verbal Communication: Pay attention to the jurors’ non-verbal communication.
Some jurors give all the right answers, but their body language tells a different story. The juror’s arms are crossed, they look down and their body language tells you that they don’t like you. This is where you want to spend your time.
When the nightmare juror expressed his hatred for you, thank them for their brutal honesty! Why? You asked the jurors to be brutally honest with you, and if they say they hate you, they are doing exactly what you’ve asked them to do. And in return, the nightmare juror deserves praise (and will be removed from the jury for sharing their bias).
“When we began I asked for your brutal honesty and you gave it to me. You did exactly what I asked you to do and I want to thank you for doing this.”
Then, ask the nightmare juror to share their beliefs in depth. Ask, “Please tell us more” and “Is there anything else you’d like to share?”
#6: Be Yourself: Don’t put on the lawyer’s suit—be yourself. Throw your notes in the garbage and bond with the jury.
You cannot practice this too much. Act as though you are discussing the danger point with two friends at a bar.
Do not take notes! Let your paralegal or co-counsel take notes.
You want to maintain constant eye contact with the jurors. Eye contact expresses non-verbally that you are being honest, while the absence of eye contact suggests that you are hiding something.
#7: Closed-Ended Questions to Remove Nightmare Jurors:
Once you’ve identified a nightmare juror, you should use close-ended questions to prevent the rehabilitation of the juror by defense counsel or the Judge.
Ask the nightmare juror these questions to commit them to their position:
- I trust that this is a firmly held belief that you’ve had for a long time, is that right?
- Regardless of what the defense counsel says, you’ll still have this firmly held belief, is that right?
- No matter what evidence you see and hear, you’ll still have this belief, is that right?
- Even after the Judge gives you instructions on the law, you’ll still have this firmly held belief, is that right?
- Even if the Judge asks if you can be fair and impartial, you’ll still have this firmly held belief, is that right?
- None of those things will change your firmly held belief, is that right?
With these questions, you’ve committed the nightmare position to their bias and the defense lawyer and Judge will have a hard time rehabilitating them. With these commitments from the nightmare juror, you have what you need to make a challenge for cause and save your peremptory challenges.