Link to a Sobering Article on Race and Peremptory Challenges

A friend sent a link to an article that the New York Times recently published about the role of race in peremptory challenges by criminal prosecutors in jury voir dire. I've included the link in this blog post, and I highly recommend that you read the article. http://www.nytimes.com/2015/08/17/us/politics/exclusion-of-blacks-from-juries-raises-renewed-scrutiny.html?_r=1

I'd be interested to know what opinions the readership of this blog have about this issue. Is the article correct? If so, what is the right solution? Should prosecutors be allowed peremptories at all? The article quotes a law professor as stating that prosecutors have abused their use of peremptory challenges and should no longer be allowed to use them.

Back at the Coal Face: Selby on Returning to Practice from Academia

When Behan, Rose and Selby set up this blog we were all practitioners turned academics.  Taking practice into the Academy seemed like a good idea.  It is that, though funding problems for schools and their students, on line teaching and learning, and the ever present cry to 'do more with less', thwart the ambitions to adequately prepare today's students for tomorrow's practice.

Some 18 months ago Selby quit his tenured position and headed back to practice, about a quarter century after he'd left it.  Much has changed but the fundamentals of being persuasive, though brightened by the micro chip and touch screens, are as important and as overlooked as always.

The order of what follows reflects the significance of the issue to Selby's practice rebirthing.  Readers should impose their own order upon the material, reflecting upon their experiences.

Turning the Tables: Advocacy Students Reflect on Serving as Witnesses and Jurors

The last assignment of every semester in my basic trial advocacy course is a self-analysis memorandum in which the students analyze their performances in the final jury trial of the semester and reflect on their growth throughout the semester. I always enjoy reading these assignments. For my purposes, they are superior to the course evaluation survey instrument the law school uses. When I read what the students have to say about their own personal experiences during the semester, I learn how well they understood the pedagogical objectives of the course, what lessons they learned as advocates, and how they plan to continue improving throughout their careers.

Why Are Lawyers So Dramatic: The Sequel

Since posting about dramatic lawyers yesterday, I've received some thought-provoking emails from friends. I thought I'd follow up on the post with some additional thoughts.

First, to those of you who commented favorably on my new status as a centerfold, especially given my age, girth, and so forth: Thank you. It is heartening to know that we centerfolds have supportive networks of friends and family who will be with us throughout the process.

Second, on the subject of drama, my friend and colleague Tom Leggans provided some great insight. Tom is an Assistant United States Attorney and a member of our trial advocacy faculty at SIU School of Law. He is a phenomenal trial lawyer and teacher. Here are Tom's thoughts:

More on Mock Trial Collaborations . . . .

This post is from Eric Knuppel, a San Francisco attorney who coaches mock trial teams at Golden Gate University School of Law

Friday, October 18, 2013 – San Francisco, CA

A few weekends ago, I had the privilege to be part of one of the most fantastic mock trial competition experiences I’ve had as a mock trial coach and former competitor. Why?  Because it wasn’t a mock trial “competition” - at least, not a traditional one anyway.

Instead, our law school participated in a mock trial collaboration or event created by the creative advocacy directors at three different law schools.  I didn’t ask many questions in the beginning and coached my team up in the typical way.  On a weekend day, I then witnessed a three-school, four-team, creativity-infused event that stretched far beyond the bounds of typical mock trial.  The format was a round-robin of four trials – including voir dire - before full juries followed by a dinner, reception, and awards.  Ballots from evaluators and jurors determined the winners.

Joseph Anderson Jr's 'Effective Courtroom Advocacy'

Review of 'Effective Courtroom Advocacy',  Joseph F. Anderson Jr.,  2010, NITA (and through Lexis Nexis), ISBN  978-1-60156-124-4,   to order click.

New to trial work?  Buy this book. Not new but wondering why you're not much good?  Buy this book. Experienced and wanting to give a useful gift to a much less experienced, but capable of learning advocate. Buy this book.

With the 'who can benefit' issue now out of the way let's have a look at the interwoven 'why' and the 'what'.

This book doesn't just give examples of good advocacy.  Anderson succinctly, clearly and persuasively explains why a number of them are good. And sometimes he is wickedly funny. Evidence and advocacy teachers should use his mock trial ' how, when and why to make objections' script as a timeless teaching tool.

Those readers who understand that 'decision maker indoctrination' trumps 'sadistic endeavour' as the hallmark of effective cross-examination can convince the rational doubters by showing them what attorney Roy Black achieved when he crossed a prosecution witness in the Smith rape trial.  The transcript still sings.

Anderson comments that he once heard that, 'the definition of a nanosecond is the amount of time it takes for a newly appointed judge to forget what it is like to be a lawyer after taking the judge's oath'.  He thinks that is something of an overstatement. It might be added, however, that too many of those judges who choose to publicly comment enter an 'evidence free zone', substituting assertion for the evidence (rather like those advocates who do bad directs).  But not Anderson.  Here's that rare trial judge who gathers evidence of what happens in his court room over many years and then uses that data to offer useful insights to those of us with much less experience, no aggregated data, and so only ad hoc anecdote to guide us.  Maybe some of those advocates who keep on talking, talking, talking will read his lessons that juries want us to learn, reflect and finally fathom that being repetitive, turgid and boring is not the way to win the hearts and minds of decision makers.

For all of us there's a useful two page checklist of 'do's and don'ts' for closing argument.  Put it in your trial reference folder, use it as a tool to bring some objective critique to the closing you'll deliver after lunch or tomorrow morning.

While reading this book I dropped into three criminal jury trials and witnessed 36 jurors being driven to despair by advocates and trial judges who were oblivious to juror interests.  The jurors’ body language was unambiguous. It's hypocrisy to laud the jury as a great democratic institution, while treating them throughout the trial as though they should be passive, unfeeling, put up with anything automatons. Such failure to think about the jury's needs and wants is one of the 'common mistakes to avoid' that Anderson addresses.

Why so many advocates are blind and deaf to those decision makers sitting so close to them is a great mystery.  Anderson cites the 1993  National Law Journal report that jurors make up their minds about who wins and who loses at the following key times (I’ve collapsed and rounded the figures): much less than 10% when opening statements are done;  about 15 % when the prosecution/plaintiff rests;  a bit less than 50% when the defence rests; up to 75% after the closings and judge’s instructions;  with 25% taking place in jury deliberation. With those kind of figures any rational advocate would pay a lot of attention to decision makers.

Talking about judges, their strengths and foibles, Anderson admits that he knows of judges who bully.  There is not much you can do, he says, 'except respectfully and steadfastly hold your ground'.  That, however, takes courage of a sort rarely seen. I watched from the public gallery recently as a judge got down into the ring to ask some questions.  The witness’s advocate, quite properly, stood to object.  The judge cut her off with a ‘Sit down’.  She did.  I felt for the witness, paying out good money for nothing.

Paying out money for this book though is well worthwhile.  It should sit alongside some other texts that have more to say and suggest about questioning techniques.  Anderson’s comments on those matters reflect the orthodoxy of the past.  We know more now than the late esteemed Irving Younger about effective questioning, especially about story telling and picture building on direct and indoctrination of the audience on cross.

So if you’re one of those many who should have this book let it join those other ‘how to do it’ trade books, and let it become as well thumbed and ragged as all such books should be.

Hugh Selby ©  March  2013.

New Juror Study Reveals Male Bias Against Obese Female Defendants

Some of you may have read about a recently released jury study conducted by researchers at Yale University. Articles about the study have been published in The Huffington Post, Slate, and the ABA Journal, to name just a few.

Using an insufficient-funds case, the researchers presented study participants with photographs of four defendants: a lean male and obese male, and a lean female and obese female. Researchers found that male jurors tended to judge obese female defendants as guiltier than lean female defendants.  The study, published in The International Journal of Obesity, is linked here: The influence of a defendant’s body weight on perceptions of guilt.

Here are some of the primary conclusions reached by the study:

"DISCUSSION

The present study is the first, to our knowledge, to examine the impact of a defendant’s body weight on perceptions of guilt and culpability among simulated jurors. Male participants judged the obese female defendant as significantly guiltier than the lean female defendant. Additionally, the lean male participants believed the obese female defendant was more aware of insufficient funds (a criterion needed to find a defendant guilty of check fraud) as compared with the lean female defendant. They also viewed her as more likely to issue another fraudulent check in the future as compared with the lean female defendant. Differences between ratings of the obese female defendant and the lean female defendant were only observed among male participants; female respondents judged the two female defendants equally regardless of body weight. Thus, among female participants, the body weight of the female defendant did not bias perceptions of guilt or responsibility. There were no differences in assessment of guilt or culpability between the obese male and the lean male defendant among any of the participants. Thus, when the defendant was male, there was no impact of his weight status on perceptions of guilt or responsibility. . . .

The finding that weight bias may extend to the courtroom is concerning and signals the need for greater awareness and prevention of weight-based discrimination in legal settings. Although participants were not queried regarding the reason for t, it is notable that only female defendants were penalized for excess body weight. If in fact obese individuals are subject to discrimination while on trial, actions are needed to educate jurors about this form of bias and potentially eliminate biased jurors when the defendant is visibly obese."

I read the study this morning and found it fascinating, not only for its conclusions, but also for the ingenuity of the researchers and methodology of the study. In addition to this particular study, the article cites a number of other studies about juror bias on a number of different matters (here's another link to the study). I intend to spend some time over the next few weeks reviewing some of these studies, because I've added a voir dire component to my basic trial advocacy class for the first time.

I'd be interested to see what experiences readers of this blog have had with using jury-bias research during the jury selection process. I always find it interesting when science confirms biases or prejudices we suspect are real, and finds others we didn't even know about.

Random Thoughts as I Procrastinate Grading Final Examinations

Dear Friends,

I'm about to start grading final examinations, but in a last act of procrastination, I decided to write a quick blog post on some random advocacy-related thoughts.

• Cameras and Advocacy in a Chinese Courtroom. I found this story on NPR about a Western reporter's visit to a Chinese courtroom. I enjoyed reading it and thought I'd share the link. I found it particularly interesting that courts in Shanghai actually stream cases over the internet for citizens to watch. The description of the informal advocacy style in the courtroom was also intriguing; it reminded me of administrative board hearings I've participated in or presided over.

• Cameras in Illinois Courtrooms. Although the People's Republic of China and the State of Illinois are not often compared to each other, it appears we may be a bit behind our brothers and sisters in China on the issue of cameras in the courtroom.  Here in Illinois, we're just getting started. Here's a link to an Illinois State Bar Association story on the topic.

• Adding Voir Dire to Basic Advocacy Course. I'll be revamping my syllabus for my basic trial advocacy course in a week or so. I've decided to add a voir dire module to the course; in the past, I haven't done it because I thought there wasn't enough time. The jury trial competition that I hosted this past September featured jurors from the community, and we let the jury verdict determine the winner. The student advocates had to conduct voir dire before trial.  This experience, about which both Rafe Foreman of UMKC and I have written in the blog (links here and here), convinced me I need to start teaching voir dire in the basic course. I'm interested in any thoughts or tips on the timing and structure of teaching voir dire in a basic advocacy course.

• Evidence Class. I had a fun semester in my evidence class this year.  This was the first semester my recently-published textbook, Evidence and the Advocate: A Contextual Approach to Learning Evidence (LexisNexis 2012), was available for classroom use. I've been using draft versions of the book as I wrote it for the past couple of years, but having it in final form was a good experience for me, and, I hope, for the students. The approach I take combines cases and legal commentary, problems and courtroom exercises. For example, the last courtroom exercise we did this semester was the direct and cross examination of a forensic odontologist in a murder case. The students were responsible to conduct their own research on forensic odontology as part of their preparation for the exercise.  They did a fantastic job presenting the expert, cross-examining the expert, and making, responding to and ruling on objections (I have a student play the role of judge in most exercises). I've been pleasantly surprised at how well they rise to the occasion, figure out what to do largely on their own, and stand and deliver in the courtroom during class. This teaching approach has worked well for me the past couple of years, and I'm already identifying areas for improvement and generating new ideas for the second edition.

All the best,

Chris

Weak Evidence Trumps Bad Advocacy: The Casey Anthony Trial

Jim Gailey is the principal in the Miami Beach criminal defense and civil litigation firm James R. Gailey & Associates. He is also a NITA instructor and a trial team coach for the University of Miami School of Law in Coral Gables, Florida. Although he labors under the handicap of being a Miami Dolphins fan, he is nonetheless a great teacher and an astute observer of human nature. These are some of his observations about the Casey Anthony Trial.

The Quality of Advocacy at Trial

With the exception of the rebuttal final arguments (which were very good), the advocacy level went from good to below average. The prosecution advocacy was overall much better than the defense advocacy. Of course, at the end of the day it did not matter because the lack of any proof of HOW the child died, effectively intercepted any consideration of WHO did "it" (begs the question of what "it" actually was). So I suppose the lesson is that advocacy cannot substitute for evidence, and poor advocacy by your opponent will not save a case with no proof.

Much of what I saw could only serve as a model of what not to do ("would you please explain" questions on cross, etc.) (not quite as bad the in-court demo by the prosector in OJ case with the glove, but at least the prosecution lost and it provided a "teaching moment" on what not to do).

Not sure how we implore our students to only lead on cross or have a consistent theme, etc. when this did not affect the ultimate outcome.

What the Alternate Juror's Comments Teach About the Case

Here are some of the comments that the alternate juror made in an interview within an hour or two of the verdict.

"It was probably a horrific accident that Dad and Casey covered up and it snowballed and got away from them"

Since there was no evidence of an accident or a cover-up, the interviewer asked the obvious question: "What evidence was there that is snowballed and got away from them."

After some stuttering and stammering he then repeated that it was "such a horrific accident that they didn't know how to deal with it. And the family was very dysfunctional and instead of admitting to the accident they chose to hide it, for whatever reason." He was then asked why George Anthony would allow his daughter to face a potential death penalty instead of admitting to the horrific, innocent accident. In response, the alternate juror laughed and said "that's a really good question that has to be answered by George. He was very combative and I personally thought he was hiding something that he chose not to answer."

When asked about all the lies that she told for the 31 days after the child was last seen, he said that it "did not affect him much at all because of what came out at trial about how dysfunctional the family was." While this "dysfunction" was the suggestion by the defense opening statement, there was no actual testimony about this "dysfunction."

Until the deliberating jury decides to "cash in" on their new found fame, we will not know what the thought process of that jury was. The comments by the alternate however, do provide some insight into the workings of this particular jury and this particular trial. To me, it reemphasizes the special importance of the opening statement. The question of ethics aside, the jurors were "shown" a despicable picture of the defendant's father by accusing him, among other things, of molesting his daughter. Though the juror admitted that there was never any proof of this and consciously they did not reach the conclusion that he was in fact a child molester, it did create an image of him that colored how they viewed his testimony. (He was "combative" and was "hiding something.") Further evidence of the importance of the opening statement was that for 6 weeks both sides tried this circumstantial case with multiple experts and a great deal of forensic evidence. Nevertheless, the jurors deliberated without any questions and without any interest in hearing back any of this technical testimony or any of the videotaped statements or 911 calls. Their gut "told" them (or caused them to speculate) that there was more to this story than the prosecution had shown them and as a result, they outright rejected the notion that the defendant mother committed any crime in connection of the child's death.

I am sure that more will come out in the coming days and weeks and eventually, many of them will appear and the case will be analyzed more fully from their perspective. At this point, however, the result and the comments that we have heard thus far, seem to suggest that although we tend to glamorize the closing argument portion of the trial as making the difference, in many cases, the jury has pretty much made up its mind by that point in the trial and the less "glamorous" opening statement, shapes the lenses through which the jury will view the evidence and consequently affects the outcome in a more significant way. (Having myself served as a juror in a 1st degree murder trial while a law student, what i learned inside that particular jury room has shaped everything that I have done as a trial lawyer.)

 

--Jim Gailey. jgailey@gailey-law.com

Casey Anthony Verdict

Just watched the live feed of the Casey Anthony verdict. A story about the verdict is available here.

I did not watch much of the trial itself, but I did follow it closely in the news. I have to admit I was surprised by the verdict. I predicted to my trial advocacy class this morning that the jury would find her not guilty of first-degree murder but guilty of manslaughter and child abuse. I was wrong about that!

I'd be interested in comments about the case, particularly the advocacy strategies chosen by both the prosecution and the defense, the professional responsibility issues raised during the trial, and some of the evidentiary decisions the state made (even if there had been a verdict of guilty, I'm not sure some of the forensic evidence would have survived appellate review). High-profile cases, as I've said before, lend themselves naturally to some great teaching moments and discussions in a law school classroom.

Voir Dire & Jury Selection - Getting Off on the Right Foot

I thought I would post about getting jury selection classes off on the right foot.  I believe someone somewhere said that to begin well is to end well so I thought I'd share what I do for what it is worth.

I begin my classes with students on voir dire by reviewing the reasons we conduct voir dire:

·   Identify jurors to challenge for cause

·   Identify jurors to peremptorily challenge

·   Educate potential jurors about facts in the case

·   Educate potential jurors about the legal issues

·   Eliminate shocks and surprises

·   Obtain promises of fairness

·   Develop rapport with the jury pool

I start by telling students that their goal during voir dire is to get rid of those jurors whose life experiences prevent them from fairly considering their case.  I tell them to look for bias.  I also warn them that the potential jury members know you are judging them and they will be defensive because of it. I then bring them back to their recent advocacy classes and how they now know exactly how much no one likes to be judged. 

Students need to understand that they have immense power over the potential jury members.  They must remember that they are before are group of individuals who are there because they have been told they have to be there.  This is a world that is not their world.  One way to effectively begin an inquiry is to give the members of the jury the authority and power to do something.  It can be as simple as asking them to take an action in response to your questions.  I suggest that they might begin as follows:

Q:        Good morning ladies and gentlemen.  My name is Charles Rose and I am the attorney for the plaintiff in this case.  I will be asking a series of questions today some of which will require a yes or no answer.  Could we all agree that if the answer to my question is yes you will raise your right hand?  Why don't we try that out now?  If you agree to answer yes by raising your right hand please do so?  Let the record reflect that all prospective jury members have complied with my request and have raised their right hands.

Q:        Very good.  Let's start with a couple simple questions, how many of you have served on a jury before?  A positive response from number19.

Q:        Number 19.  What did that case involve?

Starting this way quickly involves the jury in responding to your questions.  This requires them to actually listen and respond.  Notice how the process is to get the potential jury members talking. 

From this point I then go into how to identify case driven questions, but since others have more than adequately covered that topic I shall bid you adieu for the evening.

All the best,

Charlie

More on Voir Dire: Teaching Techniques from Jeanne Jourdan

Jeanne Jourdan is a master advocacy teacher whose creativity, enthusiasm and skill have enriched generations of Notre Dame and NITA trial advocacy students. In the following post, she describes her methods for teaching voir dire to students.

I read both Professor Stewart's lecture on Jury Selection (available here) and Judge Habas's comments (available here) with interest. Here is a handout I use for a drill on Jury Selection when working with young lawyers and/or students. It offers practical techniques, borrowed from other professions, designed to help keep potential jurors actively engaged in the process, feeling competent, and listened to. It reflects my observation that lawyers who have no time limits are very boring and those with time limits often waste precious time. The class assignment is to prepare 5 minutes of jury selection in their case demonstrating 5 different techniques. By the way I think Teach like a Champion is a really helpful book for all of us who are teaching.
Jeanne

In Teach Like a Champion, Doug Lemov shares classroom techniques that put inner city students on the path to college. At Teacher’s U, the faculty from Uncommon Schools, KIPP and Achievement First are teaching these techniques to thousands of teachers. Lawyers can borrow many of these techniques in questioning potential jurors to put them on the path to a favorable verdict.

In the courtroom just as in the classroom, boredom, confusion and lack of activity are negative possibilities. Master teachers use a set of tools to help students stay engaged. We can too. In fact we must. Too often, if there are no time limits, jury selection is, as one judge in Goshen Indiana told jurors, “very, very tedious.” When there are time limits set by the court precious time is often wasted. We need to change. None of us wants tedium to be the first impression we create; nor do any of us want our first experience in the trial to be frustration.

Jury selection has one goal – excuse people whose experiences indicate they will reject our case. We ask questions to discover people who are pre-disposed to reject the law, the witnesses or evidence in our case. We ask questions to explore concepts key to our case and determine which potential jurors will reject them. Our questions are open... "Tell us, Describe, How did you, Raise your hand if...?" when we are seeking information and leading when we challenge for cause.

We can borrow techniques that effective teachers use to keep their students engaged and learning. There is a right and a wrong time to use these techniques, a time and a place for every tool. The art of trial advocacy is in the vision of when to apply a particular technique. Nevertheless learning the techniques is the first step toward success.

Please read this list of techniques which Doug Lemov has labeled and explained for the classroom and I have put into a courtroom context.

A.In the margin put a “?” beside those you do not understand;
B. Put a “+” beside those you think will be useful tools for jury selection.
C.Put a “*” beside five techniques you are prepared to demonstrate so others can learn from watching you.
D. Come to class prepared to ask questions for 5 minutes demonstrating your 5 starred techniques.

1. “Stand still” - when you want undivided attention. (Nothing in your hands, no checking, reading or walking).

2. “Cold call” – Ask a question first, pause briefly, then call on someone so that everyone prepares an answer.

3. “Wait time” – Ask question to group then say “I’ll give you think time”, pause before you call on someone.
Example: Q1. “What are the 2 most important aspects of doing your job well?

4. “SLANT “ - Stand straight, lean forward, act interested, nod and smile, track (look at) the speaker when a prospective juror is answering your question. It’s important to the speaker that you look like you are listening.

5. “Strong voice” - if it matters it’s important that everybody can hear.

6. “No opt out” - You get the answer “I don’t know” (the opt out) get another person’s answer and go back to the person who opted out and find out if he agrees.

7. “100%” - You get an almost right answer, smile say “you’re on the right track”, say “not quite”, say “almost there”, say “what’s still needed?” praise effort but do not confuse it with getting the answer right.

8.”Transaction costs” –. You want to get everybody involved with the least time devoted to any single person. Identify persons who reject your theory of the case or the requirements of the law; don’t try to change minds and hearts.

9.”No apologies” – A belief that jury selection is boring, a hardship or tedious is a self-fulfilling prophecy. Do not apologize for doing your job. Do not blame others for what you are about to do. Do not denigrate your competence or jury service itself as a hardship.

10”.Begin with the end” – Plan, plan, plan for the big picture first. It will tell you the factual and legal issues you need to discuss with the potential jurors and limit yourself to those points. Write down your objectives – challenge people whose experiences are negative on points 1. 2. 3. 4. 5. 6. 7. Limit the points to those that are needed for success.

11. “Post it” – write words down on a chart. Many prosecutors write down the elements. Are there any other charts? How many charts are too many charts?

12. “Shortest path” – Take the most direct route. If you want to ask questions about the law tell the jurors the instruction’s words then ask questions. If you want to challenge for cause switch to leading and ask the “fair and impartial” question. Example: Given your belief that police officers lie can you be a fair and impartial juror who listens to an officer’s testimony with an open mind?

13. “Double Plan” – What will all the other jurors be doing when you are talking or asking one person questions? Note: The fewer words spoken/ the greater the interest in them.

14. “Ratio - Play volleyball not soccer “ – You want to hear from as many potential jurors as possible. This means you cannot talk for a long time before you give the ball to them nor can one juror talk for long before you get the ball back and throw to another person.

15. “The Hook” – give a short engaging introduction. A story, an analogy, ice breaking humor, or a call to status before beginning your questions. Do not repeat the judge, talk about yourself or re-explain the selection process. Above all take less than a minute.

16.”Name the steps” - break down a complex task into specific steps. 10 STEPS to “decide the case” do any trouble you? Or There are ways to judge credibility (go to the instruction) who has used these before?

17.”Break it down” – Help by providing examples before asking questions. Example: The judge will instruct you that “beyond a reasonable doubt is a firm conviction in a matter of the highest importance to you when you are not required to act at all” for most people that was buying a house. For others it was the decision to have elective surgery. Who has had one of those experiences? A similar one?

18. “Check for understanding” - At end of discussion ask if everyone agrees then circle back to those who disagree to challenge for cause.

19. “Hands up” – Tell jurors to put their hands up when their answer is yes. Example: Who has a driver’s license? Who’s gotten a ticket? Who thought the ticket was unfair? Who drinks alcohol? Who has seen someone and decided he/she was drunk? Whose job required training? Who thought training improved their performance of the job? Who ever came to court before?

20. “Pepper” – short questions delivered without interruption or exploration during which everyone participates by answering with a hand gesture or nod.

21. “Write it down” – something you want them to remember requires that potential jurors already have paper and pencil. Look at #3.

22. “Everyday” – Reflects the theory that people’s everyday experiences and behavior reflects how they’ll act as jurors.

23. “Be positive” – model confidence in your case through body language – stand straight and still, look people in the eye, get away from the podium.

24. “Circulate” – Make sure you give every potential juror a chance to speak; don't start at either end.

25. “Communicate confidence” – Just as a teacher tells his students that they can do the task at hand the lawyer wants to communicate confidence in potential jurors ability through questions. Example: Will each one of you tell me an experience you have at work or within your family that will help you be a good juror?

PEOPLE SKILLS IN JURY SELECTION

“People who can get things done through others – those who persuade, those who can motivate, those who are liked and get along well with others – stand the best chance at becoming effective leaders.” Michael Zigarelli writes that there are 20 time tested human relations practices, “soft skills”, which are critical to success in business management. Often, lawyers who consider “hard skill “ points neglect “soft skill” considerations. Hard skills are the issues that need to be explored; soft skills are interpersonal skills. None of Zigarelli’s suggestions are original. They are time honored and battle tested. They are especially helpful to practice during jury selection. Here are the top 10.

1. Listen closely and actively – Nothing incenses a potential juror quite like the feeling of being ignored. SLANT will help you look like you are listening.

2. Smile A Lot - Check out your expression does it say “leave me alone” or “we’re in this together”?

3. Make Them Feel Important – Be an encourager and affirmer. Let jurors know that you think who they are and what they do has genuine value.

4. Remember every Name – Everybody likes the sound of their own name. When you use a person’s name it makes them feel memorable.

5. Focus on your Similarities – Look and talk and dress like they’d do in your place. Jurors are more likely to be influenced by people who are similar to them. Focus on commonality when you can.

6. Don’t interrupt when someone is speaking or complete their thought for them – it infuriates them.

7. Ask about their interests – People are most at ease talking about their work, family and hobbies; people love to talk about these topics and you will learn a lot about them when they do.

8. Show appreciation – when someone expands an effort from which you benefit – even if its something they’re obliged to do – let them know you appreciate it. People feel entitled to it and when gratitude is withheld resentment can fill the vacuum. Thank you, I appreciate your candor, That’s interesting all work – Do not reserve them for bad answers!

9. Identify jurors needs and get in the habit of meeting them – the trial is not all about you; some of the people in the box will have the power to return a verdict. Be sure everybody can hear, can participate, will feel smart, will feel listened to and appreciated.

10. Don’t assume you’re looking for a right answer – Change your mind-set from “let me tell you the right way to be a juror” to "this is a learning conversation". Ask questions to learn about people; every answer is the right answer.

A Response to Professor Stewart on Voir Dire

From Judge Christina Habas:


After reading Professor Stewart’s blog entry regarding teaching jury selection, I thought it might be appropriate to offer some different thoughts. I completely agree that lawyers and judges alike know how important jury selection is: I vehemently disagree that nearly all lawyers and judges find jury selection to be their least favorite part of a trial. As a trial lawyer, I adored jury selection. It was interesting and never predictable and it helped me in my listening skills in a way that no other exercise could have. It was only after I realized that I was the least important person in the room during jury selection that I was able to calm my fears and ease my anxiety and take it for what it truly is: a way (if done correctly) to gain insight on the kind of story that I had to present to the jury panel that would be acceptable to them.

For this reason, I must take issue with Professor Stewart’s initial observation that “lawyer as speaker” is appropriate in jury selection. I do not read his blog as saying that he believes the “speaker” role is the most important role, however, he offers some insight that he believes there is a place for “lawyer as speaker” (i.e. 4) Role model, self disclosure). While I do not care to necessarily save a trial lawyer who starts telling the jury his opinions about certain issues, all this does is reinforce what the jurors already believe: that lawyers are full of themselves and want to state their own opinions. There is no need to offer self disclosure on anything. Instead of ever taking a “lawyer as speaker” stance, I offer “lawyer as facilitator”. Think of fully engaging your inner Oprah. While you must speak (no questions mean no answers) you are not the focus at all. You must phrase your questions in a way that makes jurors feel completely comfortable in answering them honestly and completely.

Professor Stewart’s comments about the series of rhetorical questions designed not to elicit a response but to “argue” is right on, for this very reason. Ask any juror if they understand the burden of proof, or some other legal concept, and all you will get is a sea of disconnected people who simply and unthinkingly nod their heads whenever you ask a question like that. This doesn’t mean they necessarily understand, or agree, with that law, only that they do not want to appear stupid or biased.

Professor Stewart’s suggestion number 2 (Pick a critical issue in your case) may be problematic from a different perspective: a judge may not let you do that. There may be a time and a place for this kind of questioning, but it truly does not get you to the ultimate issue – very few jurors will admit that they are fine with “frivolous lawsuits”, and many will simply tell you that they agree with tort reform. This does not a challenge for cause make. This is the trouble with asking people hypothetical questions in a factual vacuum. I am trying a witness murder case this week that will likely include evidence about gang membership. If all the lawyers did was ask people their views about gangs, all I would get is a lot of jurors telling me they are “against” gangs. In short, we would gain absolutely nothing. On the other hand, if the question was asked in a way that brought us to actual, real-life experiences (has anyone here ever had any dealings with a gang), and then the follow-up to ask the juror about those facts, you might get a good discussion going. Issues spoken of either in general terms, or without a factual anchor will not likely yield anything usable in jury selection.

Professor Stewart’s final comment about waltzing the jurors toward a challenge for cause is very interesting. A lot will depend on the amount of time the lawyer is given to complete jury selection. There are courts all over this country where there are significant time limits placed on jury selection. I can recall one case in particular (in County Court) where I was given all of 10 minutes to complete jury selection. I didn’t have time to “jitterbug” any jurors toward a challenge for cause, let alone a “waltz”. Further, in many federal courtrooms, the lawyers are given absolutely no chance to ask questions of any kind, yet still must prepare a jury selection through written questions. Because of this, lawyers should not be lulled into a false sense of ability to take their time. Lawyers must learn to get to the point – quickly and efficiently – or lose any opportunity they have to obtain sufficient information to make any intelligent choices about jury deselection.

Of course, the best jury selections are the ones that are started by an effective judge, who explains both the purpose of jury selection, and also lets the jurors know that they can comfortably admit to things that do not sound like they are “fair”. It would be nice to start a series of blog discussion on what we would like to teach judges about jury selection.

Jury selection is probably the single most difficult advocacy skill to teach. I appreciate the opportunity to hear about other ways of looking at it and to begin a good discussion about it. We will all turn out to be better advocacy teachers after that.

Teaching Voir Dire - an Approach where 'Cause' is King

Tom Stewart, director of trial advocacy programs at St. Louis University School of Law, contributes the following piece on teaching voir dire to law students.

The only place where a person ought to get a square deal is in the courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into the jury box.
Atticus Finch, To Kill a Mockingbird

Jury selection is the ultimate paradox: ask any 25 judges and lawyers which part of the trial they like least, Voir Dire will win hands down. Ask the same group which part of the trial is the most important, most will pick the very exercise they like least. In fact it is undoubtedly due to its importance, coupled with the false illusion of lack of control, that leads most advocates to dread the art of selecting a jury. Judges for their part have come to hate the exercise because misguided council see Voir Dire as their first opportunity to argue their case.

In teaching Voir Dire, I focus on the structural rules which naturally lead one to conclude that if the advocate is to have any real chance in removing jurors whose inner scripts prohibit them from fairly weighing the evidence, the advocate must learn how to question the venire with an eye toward identifying those who the judge would ultimately remove for cause. The peremptory challenges are just too few in number to do much good when the advocate is faced with a significant number of potential jurors whose minds have been decided by the type of case they where called to judge, or the presence of a particular fact. So the purpose of my Voir Dire lecture can be boiled down to one saying: "Cause is King!"

As to the approach, I have distilled the ocean of jury selection information out there into two fundamental acts the advocate engages in when she selects a jury: (1) Lawyer as speaker; (2) Lawyer as listener. I begin this discussion with the students by asking which one of these two approaches do lawyers like most? The answer is obvious, to say that lawyers are in love with the sound of their own voice is too cliche to be worth mentioning. But the real reason the advocate relishes the role of Lawyer as speaker is the illusion of control; the thought that if I am the one talking I am somehow "in charge" of the dialogue and thus the room. Why lawyers think this is anyone guess, lawyers as perpetual students, have been in any number of classrooms zoning out on a lecture delivered by the professor who thinks he commands the room.

Observe most any Voir Dire and you will see the Lawyer as speaker role in full display. A series of rhetorical questions designed not to elicit a response form the jury panel, but to impart (read argue) certain information: "Does everyone understand the burden of proof?"; "Can everyone hold my opponent to the burden the law imposes on her?"; "Does everyone understand that you are not to consider sympathy for the plaintiff in arriving at your verdict?" etc etc. While there is a place for the Lawyer as speaker role, it is too often the only role the advocate feels comfortable in, and rarely leads to a response that would trigger a for cause strike by the court.

The Lawyer as listener role requires the advocate to construct meaningful open ended questions designed to illicit responses on a topic central to the case. The goal here is to start a purposeful conversation with the venire. The goal is to identify those individuals whose life experiences result in inner scripts that make it difficult to fairly consider the totality of the evidence. This approach has multiple, interlocking steps, all of which require at least as much preparation as other aspects of trial:

1) Set the context: Describe your case or a particular issue in such a way that the audience will understand the reason for the open ended questions you are about to ask.

2) Pick a critical issue in your case: In my previous career as a plaintiff's trial lawyer, trying medical malpractice cases in rural Missouri, I always asked about the "tort reform crisis" and doctors "fleeing the state" from "frivolous law suits".

3) Develop a series of open-ended questions: These are questions designed to prompt the conversation on a critical issue in the case. The approach is everything; you want to create a welcoming environment so that everyone feels safe to express their views (see steps 4,5).

4) Role model, self disclosure: Take the opportunity to reveal something of your own thinking (or better still, evolution of thinking) on a topic in response to one of your own questions;

5) Welcome all responses: Remember, this is not the time or place to argue with the venireman; we want him/her to completely vent his feelings on the topic prompted by the open-ended question

6) Tip or waltz the troubling veniremen off into the hands of the judge for cause: Anticipation is key; anticipate the range of responses you are likely to get and predetermine a series of questions designed to gently move the venireman into the hands of the court. Most courts do not require the water boarded response "I cant be fair" but instead are satisfied when the juror admits that one side of the case starts at a slight disadvantage.

The wise advocate will remember the old saying, "You have two ears and one mouth and you should use them in that proportion". Listen twice as much as you talk, and with a gentle nudge, the court will help you toward the illusive goal of empaneling the fair and impartial jury.


--
Thomas Lee Stewart
Director of Trial Advocacy/ Asst. Clinical Professor of Law
St Louis University School of Law

stewart3@slu.edu

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

JURY SELECTION:
A Counter-Intuitive Art
Part 2

Time

Time is the enemy in any jury selection. It is not unusual for trial courts to limit lawyers to as little as 20 minutes per side for jury selection. (I can remember one trial where I had 10). Wishful thinking is not reality. Regardless of all of the recent articles and studies that discuss implicit bias and the like, there is simply not enough time for a trial lawyer to take hours to develop information sufficient to allow intelligent challenges for cause. While some people will use their energy to change the system in allowing additional time for jury selection, we advocacy teachers must be realists. Teaching students how to make the most of very little time given to them by the court will make them better advocates in the reality of today’s courtrooms. They can always use these skills in the event others are successful in obtaining additional time.

Even if a trial lawyer has a lot of time to conduct jury selection, using a lot of time with the jury panel does not necessarily translate into effective advocacy. Remember the back story we discussed in the first section of this blog? Today’s jurors have a lot on their plates: jobs, family pressures and a whole host of other things that are taking their time and attention. The trial lawyers may have made everything else disappear off their calendars, but our volunteer squadron of jurors have no such luxury. Sit in on any jury selection for a lengthy civil trial, say one involving medical malpractice, and just watch the faces of the jury panel when the judge tells them that they may be sitting as jurors for 5 or 6 weeks (in some courts, this is a fairly short trial). Then watch those same jurors as the judge explains that in order to fairly select the jury, the court will give each side 2 full days to conduct jury selection. They are not happy campers.

Battleship

Efficiency in jury selection is an excellent skill. Why is this? Because the entire purpose of jury selection is to de-select the jurors, and to do so efficiently, understanding the juror’s “back story”. A long-time friend of mine, Ted Shih, has always told me that selecting a jury is liking playing, “Battleship” (some of us codgers remember that game). You try to seek out the enemy and destroy them, without identifying who your friends are. In order to teach efficient jury selection, therefore, we must teach case analysis. The purpose of these series of blogs is not on teaching case analysis – instead, that skill is for another day and another blog. Instead, we must teach a certain type of case analysis.

Over the years, many professors (and some practicing trial lawyers) have taught the use of stereotypes in selecting juries. I don’t mean the kind of racial and ethnic stereotypes utilized by Clarence Darrow such as,
 
If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.” (See, Clarence Darrow, “How to Pick A Jury” (1936) which can be found at http://www.law.umkc.edu/faculty/projects/ftrials/DAR_JURY.HTM.

This may be entertaining, but hardly helpful. I know very few people who make decisions in life based solely upon their ethnic background, faith or even their gender. Yet lawyers persist in using various stereotypes in selecting juries. For example, I have taught many lawyers this skill, and when I ask them what kind of juror attitude they are searching for, they may say, “I am looking for younger women who are professionals.” They rarely see this as a stereotype, but that is exactly what it is.

Students must be able to specifically identify the belief of the juror that will not be receptive to their case. How do you know when you find an enemy unless you know who your enemy is apt to be? This is not a general or vague statement. Take, for example, a case where my defendant killed another person with a handgun, and claims it was in self-defense. It would not help me to generally identify a certain kind of juror (such as, I want jurors who are comfortable with guns). Instead, I must formulate a specific statement of the attitude of that unknown juror (such as, I do not want a juror who has experienced violence in their family by use of a handgun that was not related to self-defense). This statement must couple an actual experience that a juror may have had, along with identification of the specific evidence in the case that it will attach to.

Why is it so important to identify the type of experience that a juror has, as opposed to just asking their opinions? If a person believes a certain way because of something that actually happened to them, no amount of convincing and cajoling will likely change their attitude. On the other hand, if the juror believes something because of what they read, they are more likely to allow themselves to be educated on that issue, and perhaps to change their belief. There is another reason to ask about experiences, as opposed to beliefs. A juror will provide you with many signals about their attitudes as they tell an actual story about something that happened to them. Are they angry when they tell the story? Afraid? Tearful? Do they tend to tell the story in a way that makes the person who held the gun a villain? Do they understand that tragedies can happen even without malice? All of these issues will be important to you. On the other hand, if you simply ask them what they believe, they may attempt to formulate their response so that they do not seem biased, or even so they don’t appear to be uneducated. No juror wants a room full of people to see them as stupid! Thus, you will get the universal juror response: “It depends on the evidence.” This means absolutely nothing, and will not get you any information, but instead will get you a very closed juror.

Let me put this in a different way. Your students must be able to identify precisely how they might lose their case in order to identify the juror attitude that they are seeking out. If I know that there are issues with my client’s use of a handgun (for example, he had no permit for it, or there had been drinking) a person who has themselves suffered from violence from use of a handgun may try to find some way to blame the person who holds the gun. That makes them more closed to my evidence than say another juror who has never had that experience. Even a juror who may be generally afraid of guns, or who believes in gun control, is more acceptable to me than the person who suffered an actual harm in their life and now believes that guns are evil.

It matters not what kind of case you have. If you have a case involving a dependency and neglect situation with use of corporal punishment, find your jurors who were spanked as children, and now who will never use spanking on their own children. They formed an attitude based upon their real-life experience that will not help you if you are representing the parent. If you have a case involving sale of widgets, find jurors who have paid good money for something and then received defective merchandise in return. That real-life experience will tell you whether they believe that, “buyer beware” or the opposite.

Thus, the most difficult part of our advocacy teaching of jury selection is to challenge our students to articulate for us who their enemy will be in this case. We owe them the duty to enforce this principle, and not to let them get away with the same old jury selection issues. It may be that you end up not finding a juror with a dangerous attitude on your panel. If that is the case, at least you know you have done what you can to find your enemies.

--Christina Habas

Witness Attire at Trial

Lots of good teaching points in this article from the ABA Section on Litigation. The case involved a witness who testified in a civilian criminal trial while wearing his military uniform. The defendant was concerned that the uniform would lend the witness a false aura of veracity at trial. The California Fourth District Court of Appeal held the trial judge did not abuse his discretion in permitting the witness to testify in uniform. The article makes some excellent points about trial preparation, emphasizing that attorneys should be aware of the impact of witness attire on the jury's decision-making process.

My thanks to my colleague Mark Brittingham for sending a copy of the article to me.

Word Choice and Persuasion

This post was written by Professor Joe Lester, Director of Advocacy Programs & Professor of Law at Faulkner University in Montgomery, Alabama.


It is not what you say that matters, but rather what the jury hears that counts.

My seven-year-old boy Christian was in the back of our family van singing “chicken nugget, chicken nugget.” While the words were peculiar, the tune was familiar. When asked what he was singing he merely repeated “chicken nugget, chicken nugget.” Figuring it to be a song from his imagination I wondered about the origin – fearing it was going to be a request for fast food. I was surprised to hear him say that he did not make up the song; he heard it on the radio. He once again sang “chicken nugget, chicken nugget” but this time the tune struck a chord. “Christian,” I said, “I am pretty sure the words to that tune are ‘Rick and Bubba, Rick and Bubba.’” The song was an advertisement for the national morning radio show. Christian laughed and told me that I was being silly and that I did not know what I was talking about. He then sang once again “chicken nugget, chicken nugget” this time with a slight giggle as he believed his father to be from another planet.

How many times does our story-telling fall off-track because of unintentional miscommunication? Students often do not give enough attention to their choice of words. When our language is sloppy we lose the ability to control our message. To illustrate this point I do the following exercise.

I ask my students to yell out the first thing that comes to their mind after I give a description of a person. I then say the following one at a time after waiting for responses from the class after each: the woman who takes care of my children; the woman who cleans my house; the woman I hooked-up with last night; my first wife; my current wife; my life partner; my best friend; and my co-pilot. All of these are descriptions of my wife (FYI: don’t ever actually introduce your wife as your “first wife” unless you want to sit alone for the whole evening). But each of these phrases has baggage. They lead the listener to make incorrect assumptions merely because of the sloppy language. Is this really a danger? Absolutely. It only takes one juror perceiving the evidence in a contrary manner to hang the jury.

The inferences a jury draws should be carefully crafted by the advocate so that they can persuade the whole group. Leaving individual jurors to draw inferences based solely on their own experiences will diffuse the effectiveness of the presentation. I often use the common exercise of having a student try to describe a person in a picture to the class to see if they can get the jury to all visualize the exact same person. One time a student described a person in the picture as a “typical Auburn student.” I could see by the reaction of the class that the description created many different images in the students’ minds. That comment produced a wide spectrum of images ranging from very positive to very negative depending on their predisposition regarding the Alabama/Auburn rivalry. While it made perfect sense to the story-teller the listener was confused. Confusion does not assist persuasion.

So how do you check your language? A simple solution would be to bring in an outsider to observe your presentation. Stop periodically to ask the outsider what they know and what they think the case is about. If your story and the outsider’s story match, your language is sufficiently precise. If they do not match, you have to identify the problem language. To make that task easier ask the outsider often what they are thinking -- not just at the end. Just because it was said, does not mean it was heard. At the end of the day all that matters is what the jury hears.

You can’t stop a wildcard like Christian from misinterpreting the information, but you can minimize the danger by carefully selecting your words and understanding that everything the jury hears will leave an impression. Just make sure it is the one you meant to leave.

Aim to keep it simple: audiences like that approach.

Simple is best. As advocacy teachers, we drum that mantra into our students. The best advocacy presentations go directly to the heart of the issue and present a compelling, simple story that weaves together theme, theory, and the law.

As I've commented in past blog postings, high-profile cases like the Blagojevich trial present wonderful teaching opportunities. In this case, several weeks of trial, thousands of hours of preparation time, and millions of dollars in attorney time and fees ended with the jury convicting Blago of just one count, and deadlocked on the other twenty-three. The judge declared a mistrial (self-aggrandizing note--in an interview with a local paper, yours truly predicted a mistrial,and the proof is here).

The case was enormously complex. Whether it needed to be is a worthy subject for debate, as is the issue of whether it should be retried (my personal opinion is that the US Attorney should declare victory on the single charge, drop the others, and proceed to sentencing; I don't think the case will go much better for the government the second time around). The Wall Street Journal just published an editorial, available here, criticizing the U.S. Attorney, Patrick Fitzgerald, for grandstanding and overcharging the case.

But what advocacy teachers should focus on is the lessons to be learned from the government presentation of the case--from opening statements all the way to the jury verdict form. An article in the New York Times, here, suggests that the jury was overwhelmed by the complexity of the case. One juror's comment of the case tells the whole story of an overly complicated presentation: "It was like, here's a manual, go fly the space shuttle." With the jurors forced to create their own charts in an effort to make sense of the charges, one wonders what might have happened if the government had been bold enough to try a simpler case.

I am reminded of a story told by my good friend Hardy Menees, a partner in the St. Louis firm of Menees, Whitney, Burnet & Trog. Every year, Hardy gives a lecture to my trial advocacy students and tells the story of a seemingly complex intellectual property case he tried. He started off as local counsel for an out-of-state firm, but as the case drew closer to trial, the firm asked him to take over the trial. He did so, but on one condition: that he be allowed to try the case as "an old-fashioned stealing case." Casting aside years of depositions and discovery on complicated issues involving formulas and intellectual property, he found some incriminating telephone records that helped prove his theory of the case--that one party had stolen another's idea and profited from it. He took what seemed overwhelmingly complex and made it simple by finding the human story behind it all.

It's a great lesson for advocates. If there's a retrial in the Blagojevich case, the government might do well to borrow Hardy's approach. The simpler, the better.

Useful lessons from a Lawyer-Turned-Juror

Check out Phillip Hamilton's article, Juror No. 10, Attorney at Law. Hamilton is a trial lawyer who recently served as a juror in Madison County, Illinois (in Illinois, lawyers are not exempt from jury duty). The article is a great perspective on what jurors endure during a trial. It's well worth reading and sharing with students.

Hamilton laments the evidentiary overkill and wasted time in a trial. He notes that the six-day trial could easily have ended in four days. He specifically decries lengthy witness examinations and attorney presentations. He also discusses the importance of presenting exhibits so the jurors can see them, commenting favorably on the use of projectors to display evience.

The article is particularly well-written and insightful. It is a rare occasion indeed when a seasoned trial lawyer has the chance to observe and comment on a trial from an actual juror's perspective. I've spoken to many experienced advocates who would welcome the opportunity to see what a trial looks like from the other side. Unfortunately for most of us, we'll never have that chance. Hamilton's article may be as close as we can come.