This was my first trial and I thought I was ultra-prepared and ready for anything. Little did I know.
Jury selection seemed to get off to a good start. I had a yellow legal pad with a list of questions and I checked off the box as each question was answered by prospective jurors during jury selection. Then, something shocking happened.
During a break in jury selection, the senior partner at my law firm grabbed my legal notepad, crumbled it up and tossed it into the wastebasket. I thought the senior partner had lost his mind. But then the senior partner explained, “Go bond with the jury.”
Moments later, I stood before the jury, smiled and did the best I could to connect with the jurors. I learned a valuable lesson that day: the most important thing a trial lawyer can do is bond with the jury. Building rapport and getting the jury to trust you are essential to winning your case.
And by the way, a young trial lawyer won his first trial 5 days later. Not a big victory by any means, but the lessons I learned from the senior partner were invaluable.
The Best Ways to Bond with a Jury
Truth is, I’ve lost many more trials than I’ve won, but each trial has been a learning experience and to this day, I continue to make small improvements. These are the best tips I can share with you.
Casual Disposition: How do you act at a cocktail party? That’s how you should act during jury selection. You should take an easy-going and low key disposition during jury selection. The goal is to create credibility and rapport. Be somebody who makes everybody feel like a somebody.
Start Strong: The first words out of your mouth should convey the importance of the case: “This is a big and important case, but a simple case.”
Your Client’s Presence: Your client should never be present during jury selection. It’s hard to be critical of your client if he is right there next to you.
Your Danger Point: Whatever you are afraid of, just ask it.
“My client looks fine. How many think you cannot give millions because he looks okay?”
“To be trusted is a greater compliment than to be loved.”
Lisa Blue, Esq.
If a juror calls you the devil, thank them. (“Thank you. I asked you to be brutally honest with me and you’ve done exactly what I asked you to do.”)
If a juror says you are repetitive and boring, respond, “Thank you for your honesty. Who else feels that way?”
Reward the Jurors: It is vitally important that you reward the jurors for speaking during jury selection. A simple “thank you” is a powerful reward.
- “James, thank you for being the first to speak. That took a lot of courage, and I appreciate it.”
- “I know that was a very difficult thing, but you did the right thing. Thank you.”
Rewarding the jurors is essential to getting them to continue to share.
Mindfulness: Practice being present. This is the hardest thing to do.
Listening is such an important skill. Train your brain to be totally present in the present moment. Do not listen with the intent to reply, but with the intent to understand.
“You will never be a great lawyer unless you are mindful.”
Lisa Blue, Esq.
Never Judge: If there’s one thing jurors do not like, it’s being judged. If a prospective juror says something that you don’t like, nod your head slowly and respond, “That’s interesting. Please tell me more.” Relax and be nice.
- “It’s a very difficult issue to talk about. There’s no right or wrong answer.”
- “I’m in absolutely no position to make a judgment.”
The 2 Most Important Words for Jury Selection: You want to keep the juror talking. The most important words for jury selection are, “What else?”
- “That’s interesting. Please tell us more.”
- “I never thought of that. What else can you share with us?”
Keep note talking to a minimum and maintain sustained eye contact with each one of the jurors.
Demonstrate Sincerity and Empathy: When a juror speaks, you reward them, every time. Your tone should be caring and sympathetic.
- “Thank you for having the courage to speak up.”
- “You had the courage to be the first to speak. It’s not easy to do.”
- “I know how difficult this must be.”
Use Scaled Questions:
I love scaled questions. People hate to speak in public. With scaled questions, you just have to add up the numbers.
“How many of you—from 1 to 10—hate lawsuits?”
- 10=hate lawsuits
- 1=no problem at all with lawsuits
“If supported by the evidence, how uncomfortable or comfortable would you be including millions of dollars for pain and suffering in your verdict?”
- 1=very uncomfortable
- 10=very comfortable
COVID-19 Questions: Ask very few COVID-19 questions. Do not ask a juror if they have had COVID.
- “Do you feel concerned enough about COVID, that you wouldn’t feel comfortable sitting as a juror?”
- “Are you uncomfortable wearing a mask all day?”
- “So many wonderful healthcare professionals that we owe so much to, but that doesn’t mean that there aren’t some who have made a mistake and have been negligent.”
Know Your Jurors: Collect as much information as you can about your jurors. There is no such thing as too much information. Does the juror own real estate or rent? What kind of social media presence does the juror have? What are the jurors’ likes and interests? Are they Democrats or Republicans? It matters.
The trial consulting service, www.VoltaireApp.com, will provide detailed information about prospective jurors, including voter registration, criminal background, social media and financial and real estate. Voltaire offers customer support during trial and customized reports about the bias of prospective jurors during trial.
Show the Jury that You Care: If your client is present, show the jurors that you care about them, both in and outside of the courtroom.
“People don’t show up at trial to see who’s going to win. People show up
to see how much you care about your client.”
Joseph H. Low, IV, Esq., Long Beach, California
Nail the Coffin Shut on Bad Jurors: You want to help the bad jurors get off the jury. Don’t let the defendant rehabilitate a bad juror. Make it easy by giving a bad juror a “Get Out of Jail Free” card.
“It is a duty to serve, but you have just as much a duty not to serve when
it’s not the right case for you.”
Lock the juror into a tight position, so they can’t later soften their position when defense counsel or the Judge tries to rehabilitate them. You want to use 4-bullet proof presumptive questions to lock the juror into a position.
“What I hear you tell me is…
- “you have a strongly held conviction that you’ve held for a long time. Is that right?” [slowly nod your head]
- “your convictions are not going to change during the trial. Is that right? [slowly nod your head]
- “no matter what the evidence is, you will still hold this conviction. Is that right?” [slowly nod your head]
- “no matter what instructions the Judge gives you, you will still hold this conviction. Is that right?” [slowly nod your head]
Once the prospective juror agrees with your presumptive questions, they are locked into a position and you’ve got a strong challenge for cause.
Damages Questions:
- “When you heard that we will be asking the jury for money damages for pain and suffering, what was the first thing that went through your mind?”
- “If supported by the evidence, how comfortable would you be with a Judgment of $7.4 million?”
- “If you were the Governor of New York, would you like to put a cap on how much money an injured person can recover?”
- “What do you think when you see in the newspaper that a jury made a Judgment for $10 million? What are your first thoughts?”
Bias for Medical Professionals:
“Some people think the medical care has gone up in the last 10 years. Other people feel the quality of medical care has gone down. Which way do you lean?”
Questions You Can’t Answer: If a juror asks a question that you cannot answer, explain that you are not permitted to answer the question, but if permitted, you will provide the answer during the trial.
- “I would like to answer that, but I know what the rules are, and I certainly don’t want to violate the rules.”
- “I would love to tell you that, but the rules don’t allow me to. But I promise I will in the opening statement.”
Silent Jurors: Often, jurors sit quietly and will not say a word. You need to break the ice:
“If you were my client, would you want someone like yourself on the jury?”
“Do you believe that a judgment for millions of dollars can actually get a hospital to change their conduct in the future?”
Mirroring—Identifying the Ideal Juror: People like people who are like themselves. Select jurors who resemble the age, gender and vocation of your client.
Juror Who Won’t Stop Talking: Occasionally, you will face a juror who will not stop speaking and due to time constraints on jury selection, you need to question other jurors. When this happens, politely interrupt them by saying:
“The Judge has told me that I have to do my whole jury selection in 40 minutes. If I come back to you, would that be alright?”
Your Clothes: You say so much with your clothes. If you are married, wear a wedding band. The jurors will Google you and make up stories about you.
Do not have a messy counsel table. This is bad for focus.
End Strong: “At the end of the case, we will ask you to do 2 things: (1) Find the hospital responsible for the injuries and death; and (2) compensate the injured, dead and their families.”
