Jury Selection: Who Chooses Whom?

Trial Magazine, January, 2000

Written By: Robert D. Kreisman and Jerold J. Kreisman, M.D., F.A.P.A.

All trial attorneys dream of the ideal panel: Jurors smiling knowingly, nodding their approval of every statement, leaning forward to hear the response to the well-timed question, captivated by the inexorable logic leading them to the inevitable agreement with the argument. Unfortunately, trial lawyers' nightmares are much more real. Most prospective jurors come to the courthouse inconvenienced and annoyed. They often blame the lawyers, and view the courtroom sparring as a needless and frivolous exercise which has interrupted their comfortable routines. Conversely, some jurors, intrigued by the court process, try too hard to be impaneled. Their enthusiasm can later mutate into rage of the offending angel, who has now taken it upon him or herself to right the wrongs of the system.

Choosing jurors is less than an inexact science. It is hardly a science at all. Psychiatrists, psychologists, sociologist, and trial consultants have unsuccessfully attempted for decades to develop consistent scales which will accurately predict human reactions. The jurors, who lawyers were convinced favored their side, have fooled the lawyers too many times. Although it is still beneficial to follow standard selection formats, an attorney can only hope to narrow the odds in his or her favor rather than assure the perfect panel.

Jury selection remains a gamble wherein instinct and intuition play as important roles as hard science. Take advantage of the jury selection process that the court permits. It is the only time during the trial in which the lawyers can have a conversation with the jury.

What must not be lost in the selection process is the fact that jurors are also getting a first look at the attorneys and the cases. Just as romantic couples may disagree about who "chased" whom, so lawyers and prospective jurors engage in a seductive dance of "choose me." These jurors are forming their initial, and often lasting, opinions about the contending lawyers. It is imperative that the attorney makes a favorable first impression.

Value the jury's time

Most jurors have, by this point, experienced the usual inefficiencies of the legal process and are sensitive to wasted time. The attorney should know the case, and, especially, know the client. He or she should be familiar with the witnesses and anticipate their answers, as well as possible objections to questioning. He or she should be concise and efficient, and move quickly. A trial attorney should acknowledge (and if necessary, apologize for) the time jurors are taking to participate in the legal process. If opposing counsel is laborious in questioning, the trial lawyer should be sure to draw the contrast between the opponent's style and the trial lawyer's more efficient and timely way of working.

Establish the theme

The attorney should reinforce the story line at every opportunity, logically weaving the points into jury questions and responses to their answers. The attorney should listen carefully to the jurors' responses and watch their body language.

Do not be boring

Witnesses in the case may, necessarily, be dry if they are required to present technical material. In early remarks in voir dire, the attorney may need to prepare the jurors for technical information later in the trial. Do not detail it during initial contacts with the jury. Instead, emphasize and preview the more dramatic elements of the case. Keep the jurors attentive and interested.

Be polite and respectful

This seems self-evident, yet often voir dire can transmute into embarrassing voyeurism. Acknowledge when some questions become personal and perhaps difficult to answer. Speak plainly and directly to the jurors, always maintaining eye contact. Put them at ease with words, body language, and a comfortable delivery style.

Be compassionate, yet confident

The attorney should let the jurors observe his or her interaction with others in the courtroom. They should notice the polite tenderness with the client, as well as the knowing rapport with the clerk, bailiff, and other court personnel.

Be a part of the jury

As an impression develops of the jury pool's temperament, try to adapt to its culture. For example, if jurors seem to communicate in a slow, laconic style, the lawyer should slow down his or her own rhythm of questioning to mirror their manner. Observer phrases, gestures, even clothing styles. Talk to the client and witnesses about adjusting their testimony to better fit into the jury milieu.

The pas de deux of jury selection is a complex interaction. Although the attorney retains home court advantage, the citizens on the jury maintain ultimate judgment. It is important to understand that just as lawyers are choosing jurors for the panel, the jurors are also developing their impressions, which ultimately will impact the outcome of the case. Allow the jurors to feel and know how critical their role is in the process.