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.

Be a Good Advocate. Stop Talking and Listen

Most short duration advocacy courses (and I suspect many College semester long ‘Trial Advocacy’ programs) focus on opening statements, closing arguments and witness examination.  It is all about the talking.  Sure, to be an effective talker there must be solid case analysis.  Any good witness examination means we are paying attention to the answers.

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.

The Show-Me Challenge Voir Dire and Opening Statement Competition: A Coach's Report

A.J. Bellido de Luna coaches trial teams at the University of Maryland Francis King Carey School of Law, where he is also the managing director of clinics. His team made it to the final round of the inaugural Show-Me Challenge Voir Dire and Opening Statement Competition, hosted by the University of Missouri at Kansas City School of Law.

Here is AJ's account of the competition.

The Inaugural National Voir Dire Invitational Show Me Challenge, hosted by the University of Missouri Kansas City took place the weekend of April 12. UMKC’s Director of Advocacy, Rafe Foreman and his army of volunteers made sure that this first time competition was going to be a first class event. From all of the comments I heard throughout the tournament, they exceeded all expectations.

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

Show-Me Challenge

Got this in the mail this week from Rafe Foreman at UMKC. It's a voir dire/opening statement tournament, the only one of its kind in the nation. I highly recommend signing up for it. If you haven't been to Kansas City in the spring, you're missing out. Your students will love the location and the competition.

Here's the link to the competition webpage: http://law.umkc.edu/show-me-challenge.asp

“Scrimmage” – I hardly think so! IT’S TRIAL BABY!

"Real" Trial competition: For two years now I have had the privilege of meeting with the outstanding faculty and attendees at the Stetson School of Law, EATS program. During one of the lunches there, Chris Behan and I were talking about creating a Voir dire competition. Many others were there and contributed to this conversation but Chris and I agreed to "make it happen." Yes it was very difficult to get off the ground. Football, trial teams and classes were just some of the busy fall filled conflicts that attempted to intervene at every opportunity to halt our efforts. We switched who would host at least three times. The point is that nothing worth having comes easy. Then there was the sign up for the teams. First there was overwhelming interest and by three days before the competition, attrition set in due largely to fear in my opinion. But we fielded two teams of four and off they went to Carbondale. I personally do not subscribe nor shop at the store, "Excuses R Us." Therefore I do not accept discount or gift cards for that store from others. We found eight students who were willing to have a real trial experience and they did! We are thrilled. Here is our take on the wonderful weekend in Southern Illinois.

1)      We all wanted a "real" trial competition. So Chris and I decided whoever gets the verdict wins. NO points, no score sheet, no judges, just a jury and a verdict. REAL!

a.      My comments: I loved that there was no score sheet and no set of criteria to "coach" the team toward. Instead, there were real people and real connections and relationships. For the first time as a trainer of a competition I felt as though I were "really" training something worthwhile and significant not false and pretend. This seemed real to me. We focused on Voir dire and what issued the jury would struggle with and how to identify those in ourselves instead of whether the judge will like this or that. It was so refreshing and realistic that I am a bit grumpy today, going back to my mock trial teams and being ever aware of the score sheet. Last year I did not coach my teams towards any score sheet, and I think I am done with doing so. I am more interested in real advocacy and if the judge's cannot appreciate nor understand it, then so be it. Perhaps we won't win the championship but we will win at trial. How can it be productive to teach students that there is so much difference in mock trial and real trial? I have said a million times, now in a real trial we wouldn't do this or you would do that. I am done with those distinctions. It is either advocacy or not. If judges are too old fashioned and set in their ways that they cannot see that persuasion is an art, and then they will not appreciate our art. But we are going to be artists!

2)      We also wanted the "real" components of the trial. Pretrial conference, pleadings, jury instructions, witness lists, exhibit lists and negotiations with opposing counsel. Therefore the teams were required to conference call each other, exchange exhibits, witness lists and hammer out the jury charge ALL IN ADVANCE of the competition. This was significant and effective. We only gave the teams 14 days to prepare, from seeing the problem for the first time to trial. I recommend that we cut that down to 10 days. On our end the extra four days were spent whining and complaining that it was not enough time. Once inside ten days they finally got to work. So as you can see, I am trying to eliminate the whining.

a.      My comments: My teams would come to me and say, "they want this or that in the jury instructions." My answer was always, "work it out, that's what you have to do in real life." In fact I am embarrassed about how little I did to coach or help these teams. I instead used my time to focus them on problem solving and working together and with their opponent. Compromise was finally reached about midnight as I understand it. I was happy for them, which was the first major victory of this competition. They figured something out, together, by themselves! Wow. I wrote it down!

Coaching: First let me say that Michaelle and I were so busy that we did not have more than two "appearances" with the teams. The one that I focused on was the Voir dire. I had them conduct a Voir dire while I watched and critiqued them. I did nothing to help them with their witnesses, opening or closing. If a student came to me I assisted them, but I did not have nor organize any practices for them. It was their responsibility and they were in charge. I acted like a senior partner, who was available as a resource but not directly involved in the case. I felt like this was success or victory number 2. Sure, I could have coached them up and presented them for victory, but that was not the goal. Instead, I was preparing them to be real trial lawyers who have to figure things out on the fly and on their own. I was a resource, for example, they asked questions about the jury charge, the procedure, and the rules of evidence. I eagerly answered questions, but did not have an agenda nor teach them. I do all of those things in class, they were all in my Trial Ad 2 course. So I did not find it necessary to repeat these classroom instructions and drills in this competition. I am proud to say that it felt very nice to have them being forced to work things out. Sure, I will suffer some criticism, "he didn't help us, he didn't coach us, and we could have won if he would have…."  YAK. I do not shop at Excuses R Us.

What they learned- All learned something. All participated and all were taught the value of preparation. Sadly, some were confronted with the realization that you cannot "fake your way" through trial. Some were also bluntly reminded that they are not "all that." Good lessons. But the real learning occurs more slowly, like the making of a fine wine. I have had sips of this sweet and powerful elixir all week. One student told me, "I see what you mean; you win the case in Voir dire." Why I asked the student? His response was that it was in Voir dire that we focus the jury on what is to come and prepare them and explore their feelings on the issues that will be presented. He learned about bias, as he would have struck some of the jurors for cause because of their bias. He learned how powerful bias is and how it works to affect our judgment and impartiality.

Another student explained that the trial was in hand. But it was lost because "we fell apart." He told me that their theme evaporated before his very eyes. He was shocked that all they prepared seemed to leave when they finished opening. The pressure of the court, the jury and the situation caused them to abandon their game plan and to merely try things off the cuff. These things did not work and were in his words a "disaster." He learned a valuable lesson that will never be forgotten. He also learned a lot about team work. His insights were outstanding as to working with a co-counsel and being on the "same page." 

Other students were overwhelmed by the realization that four teams had the same facts, the same witnesses and the same everything else and yet there were so many different themes, presentations, styles and results. I could not think of a better way to explain that advocacy matters than this lesson. HOW you present your case and yourself make all the difference. They learned this and experienced it for themselves. This lesson may have been the most valuable, but time will tell.

What I learned- I knew for a long time that we need to get students real experiences. That is what experiential learning is all about. But the extent and the power of this setting is a power factor that I had not considered. This raised the intensity of the learning to the power of ten. Sure I have members who are disappointed, not in the experience but in their personal performance. Sure I have team members who are blaming me, the jury, the judge and whatever else is available. The truth is however, that in class this week I had something more real and more personal to discuss than ever before. No longer was it my trial experience that I was talking about, it was THEIRS. YOU cannot imagine how that translates into opportunities for learning and retention of the learning like never before. I am excited and anxious to do this again.

I also learned – I need to use my trial team members as "consultants" for these teams. Chris did this and my teams were quite envious of this fact. Genius idea. Watch one, do one, teach one is the theme there. I frankly, did not have the time to invest in coaching these teams four hours per day. But my other teams, my alternates, my shadow teams certainly did but I failed to include them. I will make a note for next time and not overlook this outstanding resource. I also learned that the beautiful certificates that Chris did, framed and personalized were a very appreciated and added motivation. The teams who earned these can be proud and those who did not want another chance. This makes me smile.

For the future – I believe for the future I will assign people to assist the trial team. Paralegal, associates and senior partners. I also believe that I will give them more guidance on the trial notebook and the theme work. The teams that carried their theme through the entire trial and had the jury repeating their theme to them at the end of the trial were winners. No surprise to anyone there. The teams who failed in this simple task did not win the verdict, but they were winners in the game of learning. These teams will not ever take the framing, focus and theming of a case for granted again.

I agree with all of the comments that Chris made on his blog. What I want to add in closing is to add my support for these things and not restate them. I must however, report that Michaelle tells me that the courtesy, the professionalism, and the food were the best ever! I understand that the food for the dinner was catered in and they ate it at the law school. The dinner together is a very important part of this and I am so grateful and appreciative for Chris's efforts during this entire thing. I am also very thankful for Michaelle, without whom this would not have occurred.

 Why I think this format is so helpful for students:  My story – I tried a case in Texas in a county of 350 residents. They summoned 130 for the jury venire Panel. That was 1/3^rd of the county. This county, King County, has no grocery story, no bank, no hotel and no place to stay. It is the headquarters of the 6666 Ranch and everyone in the county either works for the ranch, government or school. You have to drive 90 miles one way to get to a hotel. During the two week trial, the lawyers, the jurors, the judge and court staff were fed down the street at the school gymnasium. The defense team sat together, the plaintiffs together and the jury and judge at a separate place. It was buffet style; we took turns going through the line each day. The REAL trial happened in that gym. The four seniors of Guthrie high school and their mothers cooked the lunch for us each day. They served it with a smile and treated us as if this was the biggest thing to ever happen in the county, and it was!  I frankly hated the defense counsel in the case. I did not speak to them, ever. But something changed us all in that gymnasium. We began to see a side of each other that we had never seen before. We witnessed the humanity of it all. After the verdict the jurors, judges and defense lawyers all remained together at the courthouse. There were no winners or losers but just a group of people who suffered through this trial together, who ate, prayed and communicated with one another. I was shocked; the verdict was the largest in county history. I would have thought the defense teams would be mad and leave. They stayed and talked with the jury afterwards and said our goodbyes. The case was appealed and finally resolved by settlement. But never again did I have a negative thought for those defense attorneys, the court or the jury. Instead I had a greater appreciation of their role, our community and the struggle for justice. It is not us and them, it is Just US.

Michaelle's comments:   There is not much to add as I agree with Rafe.  This was an amazing experience for the students, but also for me as well.   Being able to listen to the jurors' feedback after the trials was so much more beneficial than my experience of chasing after them as they rush to leave the courthouse after trial.  That the students have this experience now will no doubt help them in their future trial careers.  Thank you so very much to Chris Behan and all the students at SIU for an enlightening and enjoyable weekend!

--Rafe Foreman and Michaelle Tobin

University of Missouri at Kansas City School of Law

Saluki v. Kangaroo Cage Match a Success

A few hours ago we finished the experimental competition between mock trial teams from the SIU and UMKC schools of law.  As you may recall from my earlier post, this competition featured jury trials from voir dire to verdict, with jurors drawn from the local community, presided over by state court trial judges.  Afterwards, the teams shared a meal and spent some time together socially.

The competition exceeded my expectations.  I thought I'd follow up my earlier post with some comments and feedback about the competition.  I'm aware of the possibility that I might be suffering from a huge case of confirmation bias, so I welcome debate, comments and questions on this topic.  Please use the comment feature of the blog to do this so others can read them.  If you are receiving the blog via email, click the hyperlink at the bottom of your email.  This will take you directly to the blog entry itself, where you can easily add comments.

• Voir Dire.  Although one of my favorite parts of a trial is voir dire, I've shied away from teaching it in my trial classes, largely because of perceived resource deficiencies and a lack of time.  Based on my experience in this competition, I'm going to change that.  I taught my trial teams a  a crash course in voir dire on Tuesday.  They practiced it on Wednesday before some live panels of law students.  They refined their voir dire questions on their own in preparation for trial.  Both the SIU and UMKC students conducted effective voir dire.  The jury panels opened up and talked to the attorneys, creating connections for both sides.  It was interesting to watch different jurors respond to the questions and the attorneys and gratifying to see the attorneys pick up on nods, smiles and body language cues.  To be sure, there were differing skill levels for voir dire; some of the students did it better than others.  But overall, the voir dire seemed to pave the way for both sides to discuss important themes, concepts and issues with the jurors in a real give and take.  (As an aside, I actually had jury duty this summer and watched voir dire for several panels of juries.  All of these students, from both schools, did a better job on voir dire than what I saw in this summer's trials, which was, by the way consistent with my past experience.  Most attorneys don't do voir dire well.)  We did a couple of things in the interests of time and preserving the feelings of our volunteer jurors.  The attorneys were not allowed any peremptory challenges.  They were allowed to make challenges for cause, but if granted, the juror would be allowed to sit for trial and only told before deliberations they had been selected as alternates.  As it happened, the judges did not grant any challenges for cause, on the grounds that the attorneys did not sufficiently develop the bias or inadequacy of the jurors to sit.  From what I saw, both from my own students and Rafe's, this was a fair comment from the judges.  Our attorneys hit all the right themes and got the jurors talking, but they did not obtain enough evidence on the record of any bias or infirmity of the jurors.  To improve voir dire next time, I would do a few things differently.  First, I would increase the size of the panels (we used 6-person juries).  Second, I would permit a peremptory for each side, because in at least two of the trials I saw, both sides correctly instinctively identified jurors that would be dangerous for their case but could not get them stricken for cause and had no peremptory to fall back on.  Third, I would permit actual challenges for cause and dismissals.  I think that volunteer jurors would understand this if advised of it in the beginning.  Fourth, I would allow more time for voir dire.  We gave 20 minutes per side.  I think a half-hour, or even an hour, would be better.  

• Time Limitations.  When I originally decided to use this competition format, my idea was that we would use a larger case file with more than two witnesses per side.  I figured we would have voir dire and opening statements in the morning, take a lunch break, and then try the rest of the case in the afternoon.  Instead, Rafe and I decided to try a morning trial and an afternoon trial.  This necessitated using a smaller case file, as well as imposing an overall time limit for the trial, including a hard time limit for jury deliberations.  While this permitted us to involve more students, there was a cost to the realism element of the trial.  Next time, I'd like to try a full-day trial.

• Professionalism and Ethics.  As I expected, no problems here.  First, Rafe and I both drilled into our students that they would behave professionally.  This included the No-Jackass rule (I've written about it before here) for witnesses and attorneys.  Second, as I suspected, the jury was a moderating influence.  One of the UMKC students told me after the trial, "There were several times I could have objected, and if I was trying to get points, I would have.  But then I thought about how it would sound in front of a jury, and I bit my tongue."  This was a successful strategy for him and perhaps a contributing factor to his successful verdict in the case.  By the time trial started, these attorneys had a relationship with the jury, and I don't think they wanted to jeopardize it.  We did not have a competition committee.  There were no protests.  This does not mean the students were always happy with their opponents, especially those playing witnesses.   But they had to figure out a way to work through these issues without whining or jeopardizing themselves in front of the jury.  From what I could see, they all managed to do this.

• The Verdicts.  We tried a civil case, including comparative fault and damages.  The students had to negotiate and stipulate to the damages instructions and the verdict forms.  The case was tried four times today, with each school presenting two plaintiff's cases and two defense cases.  Here are the results:

Trial 1.  Verdict for the defense.  0% fault for defendant.  (UMKC won)

Trial 2.  Split liability.  Defendant 70% at fault for defendant, plaintiff 30% at fault.  $750K in damages.  (SIU won)

Trial 3.  Verdict for defense.  0% fault for defendant.  (SIU won)

Trial 4.  Split liability.  Defendant 20% at fault, plaintiff 80% at fault.  $50K in damages (SIU won)

This type of verdict spread would drive a competition director at a large regional competition insane.  But it was perfect for what Rafe and I were trying to accomplish.  It was fascinating to see the facts and themes that led to the differing verdicts.  The students were able to talk to jurors and find out what worked and what did not.  We learned that in one trial (one of the defense verdicts), one juror was able to sway all the others to vote against the plaintiff, even though they had all wanted to vote for the plaintiff.  We also learned that the attorneys' instincts about the jurors that ought to be stricken was absolutely correct, and they were able to take away a powerful lesson about voir dire and developing challenges for cause.

I want to emphasize something that I think is very important here.  I don't think our format would work for a large tournament.  Furthermore, if the object is to judge advocacy skills in isolation of their actual persuasive effects with a real jury (as seems to be the case in most competition score sheets), this format would not work.  I am not faulting the large competitions here.  What Rafe and I did was different.  It has different goals.  I happen to like what we did better than the typical trial competition, but it is not the same thing as a typical trial competition.

• Timeframe for Competition Prep.  After Rafe and I agreed on the case file, we gave the students exactly two weeks with it to prepare for trial.  I think this ought to be the standard even for larger competitions.  Why?  Because two weeks puts a greater emphasis on case analysis and actual trial skills, and much less emphasis on the scripts and theater-like preparation involved in current trial competitions.  There is enough time to prepare a case, but there is not enough time to write and rehearse a performance.  Now, does this mean that all the students walked up to the podium and woodenly read to the jury from their legal pads?  Absolutely not.  The quality of advocacy was superb.  All advocates from both schools did their openings, closings and witness examinations without notes.  I train my students to work that way whenever possible, and it seems to me that Rafe does as well.  They worked like dogs for two weeks to get ready, primarily on their own.  I served as a judge for one round of trials and worked with them on voir dire, but otherwise, they were left to their own devices.  And they did well.  One of the UMKC students gave a particularly good opening statement.  I knew him from a study abroad program in Ireland I taught a couple of years ago, and we talked after the trial about his opening.  He wrote it the morning of trial after thinking about what he wanted to change about his old opening on the drive from Kansas City to Carbondale.  Haven't we all had the experience of doing some of our very best work under time pressure, without a team of coaches to edit or write it for us?

• The Dinner Afterward.  All I can say is this: if you like homemade barbecue and soul food, come to Carbondale.  I'll take you to Mo Wallace BBQ.  Then you'll know what a wonderful meal we all shared together afterward, complete with a short awards ceremony and comments from the coaches.  We had ribs, catfish sliders, fried chicken, pulled pork, potato salad, cole slaw, baked beans, collard greens and cherry cake. Plus, we all left as friends and colleagues, having shared both a competition and a meal together.    You can't find a better ending to a trial competition.  

Michaelle Tobin, a teaching fellow at UMKC who helped coach these teams, has promised a blog post about the competition next week.  Stay tuned!  In the meantime, I'd like to do another of these in the spring.  If you're within about a 6-8 hour driving radius of Carbondale and are interested, give me a call.  We can work out a dual meet at either your place or ours.  And I'd love to hear about other people trying this format or variations of this. Maybe we could start a league!

Slate Publishes Article on Getting Out of Jury Duty

The Honorable Robert McGahey, a Denver judge who is also a renaissance man and an exceptional advocacy teacher, referred me to an article Slate published on getting out of jury duty. (The link to the article is here.) The article contains a nice summary of the current state of jury selection practices in the United States, along with, of course, tips to get out of jury duty.


What fascinates me the most about jury selection is how much we DON'T know about it.

By the way, I just received notice that I have jury duty in March. Unlike the author of the above-linked article, I hope I get the chance to serve, but I doubt it will happen. Even though lawyers can serve on juries in Illinois (here's a link to a great Illinois Bar Journal article about a trial lawyer who actually was able to serve on a jury), it happens only rarely, which I think is regrettable. I think we'd all be better advocates and teachers if we occasionally had the opportunity to sit on a jury and participate in deliberations.

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

Make Voir Dire Training Fun - Go on an Easter Egg Hunt!

I have observed the discussion about voir dire today with a great deal of interest for a variety of reasons.  To see my colleagues sharing thoughts about the many different ways that we use jury selection pleases me greatly.  I have taken something from each of these posts and hope that many more will follow.  This is true for a variety of reasons:


First, it is a very difficult skill to teach effectively because it really doesn't lend itself to the standard format for advocacy training that most of us use.  We have the same problems teaching voir dire that judges have watching it.  The type of discussion that we are seeing here can go a long way towards making all of us better teachers.
Second, it marks a wonderful point in the development of our online community.  We have folks from literally across almost the entire United States talking about a subject that can be controversial, extremely dependent upon local practice, and difficult to master in practice, let alone at the further advanced level of teaching. 
Third (because there are always three things), it gives me a chance to share  a story about a technique I use to show students how to break the ice in this area.


When I reach the jury selection phase of a normal trial advocacy course my students are worn out.  We have covered an immense amount of area, they have walked out on the limb metaphorically, exposing their fears and insecurities to a group of classmates that they may not have even known before class began.  I like to use jury selection to reward them.  I know these students now, who is the kidder, who quips one liners, the quietly competent one, the thinker, the talker, and the quick one.  I need each of them to realize that they must use themselves in the jury selection process.  I want them to internalize that it can actually be fun, and that there is a great deal of power in telling a group of potential jurors "I don't know," or "I need your help," and perhaps even asking them "What do you think?" followed up with why do you think it?  How do I do it?  We go on an Easter Egg Hunt.


I gather the group together and tell them that we are going to choose a jury in a date rape case that allegedly occurred at a frat party on the local college campus.  It is a classic case of he said she said with no supporting evidence other than the circumstantial evidence from what folks saw at a party before the defendant and alleged victim were alone.  I then give them about 5 minutes to brainstorm some of the types of potential bias you might be worried about if you were either prosecuting or defending this case.  We then set out on an Easter Egg Hunt.  I give each student an index card with an "egg" on it.  The egg is a trait, belief, attitude or physical condition that might impinge on a juror's ability to serve in  a fair and impartial manner.  Some past gems include, "You have tourettes," "You are stoned,"  "You have narcolepsy,"  You giggle whenever someone asks you a question.....
You get the idea.  I pepper funny things that happen in life with real world issues that would normally come up in this type of case.   Greek life, attitude towards police, what does the word "no" mean.  Things like that.  
One student goes first.  They do not get to sit down until they find an Easter Egg.  Once they think they know what the egg is they stop and make a challenge for cause based upon the egg.  They quickly figure out that this can be a bit of fun.  They begin to fashion questions designed to find the egg, and become less concerned with how they might look or whether their questions are perfect.  They begin to see how to engage folks to get them to give up the "egg" that they are looking for.  Once they find an egg I give them a card and they take the place of the person who had the egg, and now that person comes up and continues voir dire.
This exercise accomplishes in a practical way many of the goals discussed by our three bloggers today.  Give it a try and see how it works for you!


See you later,


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

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.


JURY SELECTION:
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.