Jury Selection: Win the Jury Over, Win the Trial

Jury selection isn’t just the first part of trial; it may be the most important part. If you handle jury selection well, you’ll have a big advantage. Botch it, and you may never recover.

Jury selection isn’t just your opportunity to look for jurors that will be sympathetic to your client’s story (and get rid of those who won’t). It’s also when you start to either win the jurors over on a personal level, or make them actively dislike you. And try as they might to be perfectly neutral finders-of-fact, jurors are less likely to find in your client’s favor if they dislike you.

Here are a few tips for winning jury selection. Some of these I cribbed from David Ball’s terrific book, Theater Tips and Strategies for Jury Trials.

Shut Up, Already

Remember the old expression about how you have one mouth and two ears, therefore you should talk half as much as you listen? When you have 12 potential jurors in the box, you should try for a 1:12 ratio. You might not get there, but try. Also, smile—really. There will be plenty of time for your serious face later.

Start by getting jurors to talk about themselves. Ask questions like, “If you weren’t stuck in the courthouse on this beautiful summer day, and you could do anything you like, what would it be?” Or, follow up a question about what people do for a living with “What makes you good at your job?” You’ll be surprised how quickly people will open up and reveal a lot about themselves that you’ll want to know.

Look at people while they are speaking. Nod slowly, which silently says “Go on, and take your time.” Nodding like a bobble-head doll says, “Hurry up with your answer so I can ask another brilliant question.” Don’t take notes until after the person stops talking. You might feel a bit awkward taking notes in silence, but the people in the box will not.

Then move to the subject matter of the trial. Start with a closed-ended question like, “Have you ever hired a professional to do work on your home? Please raise your hand.” Make a quick note of all who do, and follow up with each of them with open-ended questions about that experience. Then ask how that experience would help (or cause trouble for) the person as a juror.

The Juror Is Always Right

Do not paraphrase back what a juror just said. That is a good thing to do in some situations, but not during jury selection. It will annoy the jurors as well as the judge, who may think you are putting words in the juror’s mouth. Don’t disagree with a juror—ever. If Mr. Jones expresses an opinion that tells you he’s going to take a dim view of your client’s story, ask Mr. Jones to tell you more, and while he does, watch for the reactions of other jurors. You may not be able to rid yourself of Mr. Jones, so make him believe you are interested in his completely wrong-headed opinion, since, in fact, you are.

Act like a great talk-show host who understands that the guests are the reason people tune in. Smile, be friendly, strive to not sound lawyerly, and listen, listen, listen. You’ll gather priceless information about which jurors to keep and how to try the case. And the jury, without realizing it, will want you to win.

(photo: http://www.flickr.com/photos/rscottjones/387561128/)

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  • http://cogentlegal.com/blog/ Morgan Smith

    I really appreciate what you wrote, especially about using theater tricks and truly listening. I recently participated in a theater improv workshop that, to my surprised, helped develop a lot of skills we need as attorneys, listening being one of them. (full post here: Improv for Attorneys: Theater-Based Skills for More Confidence, Quick Thinking and Creative Problem Solving). I like the suggested question, “If you weren’t stuck here in the courthouse and could be doing anything, what would it be?” Thanks for the post.

  • http://Lawyerist.com Andy Mergendahl

    Morgan, thanks for your comment. I was introduced to David Ball’s book in a 3rd-year law school class taught by an actor-attorney. Our “final project” was performing a Shakespearean soliloquy. It was great.

  • http://www.coyelaw.com Wade Coye

    Overall, lawyers can forget to listen – to clients, to jurors, to co-workers and colleagues. Particularly when it comes to the process of juror selection everyone needs to remember that it’s ultimately the juror’s decision as to how the case will be decided. Regardless of the brilliant evidence or arguments, the jurors must be convinced.