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Thoughts on Picking a Jury, From a Juror’s Perspective

Every Tuesday and Thursday of this month, I’ll be doing my civic duty and acting as a juror at Orleans Parish Criminal Court. I’ve got to admit that I haven’t been looking forward to it– facing the challenges of getting a new practice going, I don’t relish the idea of giving up huge portions of my time during August. But, as my mother likes to say, “you got no choice, you got no problem,” and given my belief in the greatness of the American jury system, I really didn’t have any choice but to go and smile about it.

After today, I’m convinced I’ll be a better lawyer for the service. I’m just getting home from my first day, and I was lucky enough to have been put “in the box” to be questioned by the lawyers during the voir dire process. The experience gave me a fresh perspective on something that I’ve done many times in the past, but always as the lawyer doing the questioning, not the juror having to answer the questions. Being on the other side of things made me realize in a way I hadn’t before the wisdom of some of the teachings I’ve received over the years from true masters of trial advocacy (who will often tell you that voir dire, the process of picking a jury, is the most important part of the trial).

While sitting in the juror box during a break, I scribbled down a couple of the lessons that came to mind:

1. Many Jurors Are Nervous

I can say this with some confidence, having watched my fellow jurors’ reactions over the course of the day and felt my own. I’m sure this is especially the case if it is the jurors’ first day of service, but the courtroom is a strange and intimidating place for a lot of people, and there’s a sense of powerlessness involved in being a juror– you don’t have a choice to be there, and you’re required to speak in front of strangers about personal opinions many people don’t reveal to close friends. So I think it’s safe to say there are going to be nervous jurors in my panel throughout my month of service.

The lesson for lawyers is to recognize that jurors are nervous and try to make them feel more comfortable. Probably one of the best ways to do that is to be comfortable but not overbearing as you ask questions. I think it probably exacerbates nervousness to watch someone else suffer it.

2. Never Use the Word “Anyone”
If you’re a lawyer and you’re using the word “anyone” during voir dire, you’re probably using it in the phrase “Is there anyone here who thinks that . . .”. Assuming that you’re trying to elicit a response from jurors about their real feelings on a subject, that question is not the way to do it. Words really do have a power, and word choice really is important during a trial. The phrase “Is there anyone here. . .” is heard by jurors as “Is there any ONE here . . .”. Most human beings don’t like to be THE ONE in a crowd who believes anything. It makes you think you might be crazy. Couple that with the nervousness many jurors feel, and the likely response to the question “Is there anyone here . . .” will be a resounding silence. The best you tend to get are a couple of timid hands.

A better question is “How many people here think that . . . “. This is an inclusive question, implying that there’s bound to be more than one person in the room who thinks a particular way. With the safety of (suggested) numbers, people are more likely to be willing to share their true beliefs on a point.

(My thanks to jury consultant Brett Dillingham for this thought.)

3. Be Careful with Yes Questions

By “yes” questions I mean those questions that pretty much anyone in the panel will agree with but which don’t really add anything to the case, like “Isn’t America great?”. Lawyers sometimes will go across a whole row or the whole panel asking each person the same question and receiving the exact same “yes” answer. In all honesty, I found myself quickly tuning out when that happened. By the time the lawyer pointed at me I could hardly remember what I was saying “yes” to.

4. Be Aware of Boredom

Voir dire really can get boring from the juror’s perspective. I admit that in days past I’ve almost felt like that was a kind of illegitimate emotion– “How dare that juror be bored during my voir dire! Doesn’t he know this is an important process?”. These days (and especially after today), I know that it’s senseless to try to brand an experience like boredom as right or wrong. For a juror, it just is.

The lesson for the lawyer is to remember some basic trial advocacy skills like primacy and recency– the insight that people tend to consider what they hear first to be most important (primacy) and tend to remember best what they hear most recently (recency). Using these tools, a lawyer can make sure the important themes of his or her client’s case–which most lawyers will start to hint at and explore during voir dire– are both considered important and remembered by the jurors. After a long slog through a voir dire, for example, it might be useful for a lawyer to quickly bring up important themes that were explored towards the beginning of the process. You might even flag the point you want to emphasize by saying “OK, this is going to be my last question.” Trust me: Nothing gets jurors’ attention during voir dire like saying its about to end.

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