Mixing emotions and ­logistics in jury selection

Galina Davidoff, BridgeTower Media Newswires

The most effective panel voir dire I have ever seen began with the plaintiffs’ attorney expressing great sympathy and interest in one juror’s opinion that it was unseemly for the plaintiffs to be asking for millions of dollars.

Before we knew what hit us, our potential pro-defense jurors were dropping like flies. These jurors acted like they finally met their soulmate in sharing their reservations about the plaintiffs, plaintiffs’ lawyers and high damages, readily agreeing that they would favor the defense from the start and thus should not be on the jury.

Not to be outdone, our defense attorney managed to do the same with the jurors who disliked large corporations. Again, we witnessed a meeting of the minds: The corporate defense attorney seemed to be united with the jurors who disliked his client. You could see that he viewed their feelings as noble, legitimate and worthy of respect and exploration. As a result, many of them agreed that this case was not for them to judge.

Both attorneys had one obvious thing in common: They were both kind and attentive, which made the would-be jurors feel accepted and understood.

But how did they do it? How can an attorney simultaneously judge and relate to prospective jurors?

Empathy vs. calculation

On the one hand, it seems that a sharp mindset would be preferable so that an attorney can make quick, cool judgments and efficient strikes. On the other hand, it has been proven time and again that a cold, calculated look is prone to stereotyping and misses a great deal. Meanwhile a kind, loving and forgiving view reveals a wealth of information.

Attorneys also are unlikely to build any rapport with jurors if they are too focused on judging them. The best trial lawyers are focused on one thing at a time, pushing the rest to the back of their minds, at least for the moment.

First, they formulate the juror profile and the questions they want to ask and commit them to heart. Then, they designate one or two people to take notes during the actual selection. Finally, they are free to engage with the jurors until the time comes to decide whom to strike.

Being able to shift both their focus and their emotional gears plays a large part in trial attorneys’ success. Jury selection, in that sense, is no different from the rest of trial practice: You need to use your emotional IQ, and you need to change gears quickly.

The best trial lawyers I know are also some of the most attentive people to those around them, which goes completely against the stereotype that successful litigators are ruthless or shameless — or both.
The truth is, trial law is a team sport (even if it is only you and your paralegal), and those who are good to their teammates are more likely to succeed. Kind and undivided attention is something that these attorneys practice every day. Without this practice, they could not be as good as they are in conducting voir dire.

Logistics of kind lawyering

This brings us to the topic of logistics, the supporting structure that allows trial lawyers to be kind and relaxed as they talk to jurors. Could you possibly talk to jurors with kind attention, while taking notes on their adverse attitudes? Have someone else take notes for you, and make sure that the notes are not random or exhaustive; they should be strategic and effectively record what is relevant to your decision.

Your note-taker must know your juror profile, your strategy and your questions. This person does not need to be experienced. If you cannot afford to have a consultant or an experienced second chair, get an associate, paralegal or law student. There are many young lawyers who lack trial experience and would be happy to help. Just make sure that they record jurors’ answers, not their own opinions about the jurors.

If the prospective jurors are seated in the jury box or occupy only a few rows in the courtroom, consider having your note-taker use a large seating chart and post-it notes that can be layered on top of each other or removed if a juror is excused.

When you can see your entire panel on a chart, it is much easier to gain clarity and make decisions than if you are flipping through a notebook. Once the job of talking to the jurors is done, it is time for quick judgments and cold calculations.

Most experienced consultants use a variation of a simple rating system: “A” is great, “F” is must strike, “C” is neutral, and “B” and “D” are the gradations in between. This system helps prioritize the strikes and shows you what kind of panel you have.

Gut feelings vs. facts

Of course, attorneys often have gut feelings about jurors. I have heard attorneys claim that they instinctively felt a certain juror would be good or bad for them. Be cautious when acting on gut feelings, but trust your gut if it strongly warns you against a juror. If you don’t, the feeling might be a constant distraction at trial.

At the same time, be careful about any positive gut feelings you may have. After all, love really has nothing to do with it. Jurors often find against the attorney they like better simply because they think the other side’s facts and story are more compelling. Just because they like you as a person does not guarantee that they will agree with your case.

Trials are not popularity contests. The kind of attention you bestow on jurors will not win your case by winning their hearts. It will, however, make you see the jurors better, help you ask them better questions, and make your strikes more efficient.

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Boston-based Galina Davidoff is a litigation consultant. She can be contacted at galinadavidoff@gmail.com.
 

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