By Thomas M. O’Toole, Ph.D.
Who do I want on my jury? Men or women? Are women too emotional for this case? Are African-Americans going to be a problem for my predominantly white corporate client? I’m pretty sure the woman in the front row is a lesbian…should I be concerned? Should I have one of the female attorneys from our firm sit at the table during trial with us?
These are all very common questions that I hear from attorneys. Our society has always been strangely preoccupied with demographics. National news media are constantly flashing polls broken down by men, women, whites, African-Americans, Hispanics, etc. At times, it feels like it’s a national pastime to lump all women or African Americans together and draw hasty conclusions about “them.” As someone who devoted a lot of time to studying critical theory in college and graduate school, I wince every time the topic comes up. But that discussion is for another time. In fact, I tend to believe this rush to overgeneralize along the borders of demographics comes from a different place when we are talking about attorneys.
I cannot begin to count the number of times I have had an attorney tell me that he or she is afraid of jury selection. This moment of blunt honesty usually only comes after the second or third drink. “Terrified” is a word I’ve heard thrown around quite a bit in these conversations. The feeling is understandable. Jury selection can be an incredibly difficult ordeal that results in a feeling of a total loss of control. Add to that the black box that is the jury during trial and we begin to see why attorneys are so quick to latch onto beliefs that give them a greater sense of control and understanding over things. It’s scary to have so much on the line and to put it into the hands of individuals you know almost nothing about. Demographics become a quick and easy (and frankly, lazy) way to generate a sense of control and order in the jury selection process.
Here are the nuts and bolts on the value of demographics: demographics are only important to the extent that we assume people of similar demographics probably hold similar attitudes and have had similar experiences. In other words, demographics serve as an intermediary to something that has been shown to have predictive value. Research has shown over and over again that attitudes and experiences are two of the best predictors of human behavior. In light of this, why not just target attitudes and experiences directly rather than rely on the indirect indicator?
For example, while it may seem like it makes sense that women might be a concern for a corporate defendant in a sex discrimination case, this is an impractical and likely inaccurate generalization to deploy. Attorneys simply cannot remove all women from the jury. Even if such attempts survived Batson-type challenges, there are simply not enough peremptories to remove entire demographics from the panel. And most important, not all women actually are a concern. Some women may have employment experiences that suggest to them that discrimination is not prevalent in the workplace. Some women may have certain attitudes that orient them to be critical of other women who bring forth discrimination claims. There’s an infinite number of unique possibilities that call into question the focus on the general category of women. Instead, attorneys in this instance should focus on people who believe sex discrimination is prevalent in the workplace. Or people who have experienced sex discrimination in the workplace. There are a variety of attitudes and experiences along these lines that narrow the list of “high risk” jurors to a number that comes a little closer to the number of peremptory strikes the defense attorney actually has. This strategy is more practical and effectively reduces actual risk within the venire.
The reality is that jury selection is very manageable and does not need to be as anxiety-inducing as it tends to be. Most competent jury consultants will tell attorneys that jury selection is actually about “de-selection” since this is the only thing that is actually within an attorney’s control. As previously noted, attitudes and experiences are most predictive of human decision-making, so these should be the cornerstones of any “de-selection” strategy. Don’t let simple demographics, such as race and gender, become unnecessary distractions that cloud jury selection efforts and unnecessarily broaden the number of perceived high risk jurors within the venire.