Voir Dire: Judge gives attorneys tips on how to work with jurors

Judge Kirk Tabbey says jurors are just everyday people eager to do a good job

Story and photos by Jo Mathis
Legal News
Washtenaw County 14A District Court Chief Judge Kirk Tabbey has worked with an estimated 1,000 juries in his 30-year career as a prosecutor, defense attorney and judge.
So he spoke from experience recently when addressing the Washtenaw County Bar Association’s Criminal Law Section meeting on juries.
“When you’re dealing with jurors, you’re just dealing with people you know from your neighborhood,” said Tabbey. “If you seem prepared and professional, you’re in. You’ve made their day.”
Some people called for jury duty know just what to say to get off the hook, said Tabbey, noting that he wants jurors whose schedules are not so pressing because that avoids having a juror worrying about what they are missing instead of focusing on the case.
At first, jurors just want to know why they’re there, and what they’re expected to do, said Tabbey, who served as a Washtenaw County Assistant Prosecutor from 1983 through 1992, a Special Assistant Public Defender in 1993, and then as Jackson County Senior Assistant Prosecutor, chief trial attorney and Chief Assistant Prosecutor before he was appointed to the bench in 1997.
He talks to jurors before the selection process, explains the role they’re playing in the justice system, and what they bring to the table.  He also debriefs the jurors after each verdict.
“I tell them we rely on your common sense, general knowledge, and everyday experiences,” he said.  These phrases are repeated throughout the jury instructions.  In criminal cases the prosecutor runs the case, he said, due to their higher bar to meet, to prove the case beyond a reasonable doubt, but the judge runs the court. Keeping to a timely schedule is very important to jurors.
“In defense, you’re a different actor,” he said, encouraging lawyers to talk to jurors as people, humanize the case. “Just converse with them in voir dire using your questions.”
“You have to focus on letting them work with you. During the trial, most jurors take good notes and some juries love asking questions.  Their questions can give you the chance to reconnect with the jurors, to cover areas they seem to think as important.”
Make eye contact with them; be pleasant and be yourself, not flippant, he said.
Jurors are paying closer attention than some attorneys may realize, Tabbey said, adding that jurors expect to see skilled investigation and presentation, that’s why it’s important to be professional and prepared in court.
“Knowing the case as best as you can is critical,” he said.
Because people are often admonished to “hear both sides of the story,” it is natural as well for jurors to want to hear what a defendant has to say, this is expected in civil cases, Tabbey said. Defense attorneys need to acknowledge that fact, he said, suggesting that they remind jurors of the state’s burden to convict, the defendant’s right not to speak, and the jury’s obligation not to hold that decision against the defendant.
Most trials involve criminal cases, he said. But if the case is a civil one, the same rules to working with jurors apply, he said, suggesting that lawers: Get to know them as people. Don’t inundate them with material they know nothing about. Treat them with respect.
“Pay attention to their body language when you’re talking,” he said, explaining how it’s not hard to tell when you’ve lost them.
Being prepared for a case and avoiding paper-shuffling is critical to their assessment of you as a litigator. 
“It gives credibility that you really believe what you’re saying,” Tabbey said.
Tabbey said he enjoys watching people litigate, which he considers an art.
“It’s dynamic,” he said. “You’re not sure what’ll happen at any moment.”
Civil cases can be less exciting than criminal cases, and it’s up to the lawyers to keep jurors focused and engaged.  Those that can keep their attention can often be more persuasive.  
“For me, personally, I think of the jury verdicts as you would a rudder on the ship of justice,” Tabbey said, adding: “It keeps me on an even keel.”