It was my first trial. While the stakes were not particularly high, I had every intention of doing my best. On a yellow legal pad, I had a list of every question that I intended to ask during jury selection. One by one, I went through the questions during jury selection and repeatedly looked back at my notes. I thought everything was going fine.
When I returned to the counsel table during a break in jury selection, the senior partner of our law firm grabbed my legal pad, crumbled it up and tossed it in a garbage basket. The senior partner had one instruction, “Go bond with the jury.”
5 minutes later, I stood up, and asked the only question I could think of, “Mr. Smith, please tell me about yourself.” I learned a lesson that day: the goal is to build and maintain whatever level of rapport with the jurors that you can. It’s not what the jurors say that matters; it’s the rapport and credibility that you build with them.
Okay, but how do you build credibility and rapport with jurors during jury selection? You LISTEN to them, and respond in a way that shows you’re listening and that you care what they say.
How to Build Rapport and Credibility with the Jury
The Open-Ended Question: Your most potent tool: the open-ended question. “Who”, “what”, “when” and “why” inspire the jurors to think and share their thoughts. Avoid questions that can be answered with “yes” or small bits of information. The more information you have, the better.
“Listening is not a passive activity. It is the most active thing you can do.”
Chris Voss, “Never Split the Difference”
Ask questions that start with “How” or “What”. “How” engages because it asks for help. Be deferential and respectful. Summarize the situation and then ask, “How am I supposed to do that?”
- “How can we solve this problem?”
- “What about this is important to you?”
- “How would you like me to proceed?
- “What kind of evidence would you like to see?”
The Power of Empathy: You want to establish rapport with the jurors. You are dealing with jurors who want to be understood and accepted. Become an expert at empathy. Use simple phrases, such as “yes”, “ok”, “uh-huh” or “I see”.
“It’s not how well you speak, but how well you listen that determines your success.”
Chris Voss, “Never Split the Difference”
- “I know this isn’t easy by any means and some of the questions are very personal.”
- “If anyone understands what you’re going through, it’s me.”
- “We want to hear what you have to talk about.”
- “What else do you feel is important to add to this?”
Invite the juror to elaborate by saying, “I hear you. What else can you share with us?”
The Power of Mirroring, Labeling and Silence
Mirroring: Mirroring is the psychological tool that is most effective. A mirror is essentially an imitation, when you repeat the last 3 words (or the critical 1 to 3 words) that the juror said.
“[M]irroring is the closest one gets to a Jedi mind trick.”
Chris Voss, “Never Split the Difference”
Labeling: Label each fear and repeat their emotions back to them. This is called labeling and it exposes negative thoughts.
- “It seems like…”
- “It sounds like…”
- “It looks like…”
- “It seems like you’re reluctant to….”
You will mirror and label your way to a degree of rapport with the jurors.
Silence: The last rule of labeling is silence. Silence is powerful. Once you’ve thrown out a label, be quiet and listen. The juror will fill the silence.
“Trust me. You and I—we’re alike.”
Accusation Audit: List every terrible thing your adversary could say about your case and ask the jurors to respond. Every case has a danger point and if you don’t raise them, it’s a sure bet that defense counsel will.
Defuse the danger point as early in jury selection as possible.
- “Josh did not follow the doctor’s advice.”
- “Josh left the hospital against the instructions of the doctor.”
- “Cocaine was found in Josh’s blood during the autopsy…and we’ve got no explanation for this.”
After you list the terrible things that your adversary will say about your case, ask the jurors for their response, e.g., “What do you think about this?” Then, acknowledge the jurors’ negative thoughts and defuse them. Follow up by summarizing what the juror said (labeling and mirroring).
Reward and Empower the Jurors
Express Gratitude: A simple “thank you” is a very powerful reward. Whenever a juror speaks up, you reward. The jurors will be disarmed by your kindness.
“The concept of reward…is so essential in fostering the person’s
willingness to continue to share truthful information with you.”
Philip Houston, Michael Floyd & Susan Carnicero, “Get the Truth”
Make a conscious effort to speak slowly and distinctly. Slow your rate of speech. A lower tone of voice is more effective than a higher volume.
- “Jim, thank you for sharing that. That took a lot of courage.”
- “I know that was very difficult, but you did the right thing.”
- “Thank you for sharing that with me. It’s tremendously helpful.”
- “Thank you for that. I know that wasn’t easy.”
The Power of “No”: Give the juror permission to say “No” from the outset of jury selection. Just letting the jurors know that they have the power to say “No” brings down barriers and empowers the jurors.
“Everyone you meet is driven by two primal urges: the need to feel
safe and secure, and the need to feel in control.”
Chris Voss, “Never Split the Difference”
- “Is this something you’d rather not talk about?”
- “Would you rather not be a juror in this trial?”
You can empower the jurors by telling them, “You are the most important people in this courtroom. You are more important than the judge and the lawyers. Why? Because you decide the outcome of this trial.”
How to Treat Pro-Defense Jurors with Respect…and Eliminate Them
Non-Verbal Communication: Body language and tone of voice are the most powerful assessment tools. According to psychology professor Albert Mehrabian’s 7-38-55 rule, only 7 percent of a message is based on the words while 38 percent comes from the tone of voice and 55 percent comes from the speaker’s body language and face.
Pay attention to the jurors’ non-verbal communication or qualified answers. Are the jurors crossing their arms and looking down? Do the jurors look away when you’re not speaking with them? If so, make sure you raise your concerns with the juror.
- “It seems that there’s something here that bothers you.”
- “I heard you say ‘yes’, but it seemed there was some hesitation in your voice.”
Qualified answers are always bad. “I’ll try” really means, “I plan to fail.”
Silent Jurors: No communication is always a bad thing. When you are verbally attacked, do not counterattack. Pause, think and relax.
“There is great power in treating jerks with deference.”
Chris Voss, “Never Split the Difference”
Eliminating Pro-Defense Jurors: Lock-in pro-defense jurors with presumptive questions. Protect the pro-defense jurors from rehabilitative questions that will be asked by defense counsel and the Judge.
- “It sounds like you’ve had these strong feelings against personal injury lawsuits for a long time, is that right?”
- “It sounds like your feelings are not going to change no matter what the defense lawyer or Judge says, is that right?”
Use Your Own Name: Use your name to make yourself a real person to the jurors. Using your own name creates empathy, e.g., “My name is John.” Say your name in a fun, friendly way.
Backup Listeners: Use a paralegal or trial consultant whose only job is to listen intently to the jurors. They will hear things you miss (including comments made amongst defense counsel).
Put your pen and notebook down. There’s no reason to take notes.
The Most Important Part of Your Next Trial
Gerry Spence, Esq. once said that if you take care of jury selection and opening statement, the rest of the trial will take care of itself. It’s essential to begin every trial by showing that you care about the jurors, you’re listening to them and you want to make their job easy.
If you’ve done your job during jury selection, the jurors will know your name, your client’s name and care about your client. And if you’ve done this, you achieved the most important goal of jury selection: building rapport and credibility with the jurors. Nothing is more important to winning your next trial.
