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Monday, December 27, 2010

View from the Bench: Jury Selection and Voir Dire According to Habas, Part One

Judge Christina Habas has created one of the best voir dire teaching presentations I've ever seen. A version of it is available at the Stetson Advocacy Resource Center, here. She has agreed to convert this presentation to several smaller essays to post to this blog.

A Counter-Intuitive Art

Like most trial lawyers, I believed I was good at selecting juries. I thought I knew all the right moves: be cordial and professional; use self-deprecating humor whenever possible; get the jurors to like you; do no harm. But now that I watch jury selection on a near weekly basis, I know that I knew absolutely nothing about the true art.

Teaching jury selection is, perhaps, the single most difficult thing we do as advocacy teachers. In a way, we are “teaching the unteachable”. How do you “teach” someone to listen? How do you “teach” a lawyer how to make people comfortable in admitting their biases? Believe me, it IS teachable, it is just very difficult.

The Beginning

A good jury selection begins with a full understanding of the “back story” of the jury. Many of them are here for the first time, although they have heard lots of horror stories before they came. Some of them have come armed with “dead bang winner” statements that others have assured them will get them excused. Some of them have so much going on in their lives that they can barely breathe. Some of them are actually excited at the prospect of serving on a jury, so long as it is an “interesting case” (read: murder).

Nearly all of them have strong opinions about lawyers, and about the justice system in general. Nearly all of them are worried that they will say the “wrong” answer. Nearly all of them will respond to you if you give them a chance.

A very good friend of mine, Bill Keating, has always told me that he credits any success he has in jury selection and jury trials with thinking about what juries believe about lawyers, and then doing exactly the opposite. There is great wisdom in this way of thinking. Assume for a moment that you have potential jurors who greatly respect our system of justice, and firmly believe in the jury system. You will have no problem winning them over. It is the jurors who are critical of the jury system that you must begin to convince, and to find the ones that you cannot convince.

What is the exact opposite of what many people believe of lawyers? Well, for one thing, someone who doesn’t talk about themselves at length. Many people are conditioned to believe that trial lawyers are nothing more than narcissists who love the sound of their own voices. And having watched many trials, I have to say that often I hold that opinion as well! Many students have heard that they should “introduce themselves” to the jury by telling them about their own lives, all in the name of making them feel more comfortable. All this does is make any juror’s previous opinion about lawyers’ conceit more firm. This is an essential first step in teaching jury selection.

Teaching our students how to simply make a professional and brief introduction to the jury panel is the only thing they must know before they get to the next part of jury selection: weeding. That will come in my next blog.

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