Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat.
Statistics indicate that fewer and fewer cases make it to trial, which means most attorneys have had few opportunities to conduct voir dire. Even for experienced attorneys, it may have been years since the last time they picked a jury. Additionally, jury selection is not something that comes natural to most attorneys as it is the opposite of what most attorneys are used to doing – arguing as opposed to listening. Many attorneys admit that they do not like voir dire and that it is the one thing about trial that makes them nervous. The anecdote to all of this is PRACTICE. Practice will make you better. Continue reading →
Jury selection is difficult. It is impossible to predict exactly how any one individual is going to decide the case. Instead, we look for indicators or glimpses into how a potential juror might decide the case. Some attorneys rely on the simple lifestyle choices of jurors, such as their news sources or what the bumper stickers on their cars say. Others use voir dire to explore jurors’ case-related attitudes and life experiences. While some methods are more reliable than others, they are all imperfect tools for trying to predict the future.
These imperfections inevitably lead to moments of uncertainty during jury selection where attorneys struggle to determine who, among a few possibilities, is the best choice for the use of a peremptory strike. Even when attorneys are confident in their identification of “bad jurors,” the situation often arises where they have fewer peremptory strikes than “bad jurors.” Continue reading →
Each year in the United States, juries award billions of dollars in damages to plaintiffs. In 2014, a jury in Florida awarded $23.6 billion to a single plaintiff. There are two possible explanations for these extraordinary numbers. First, for a variety of reasons, defense attorneys are often forced to take unwinnable cases all the way to trial. In these situations, they do the best they can, but cannot avoid the inevitable.
The second explanation is that defense attorneys are failing in some way to adequately try their cases. This is not intended to give insult to defense attorneys. In fact, it’s an overdue acknowledgement of the overwhelming burden that is placed at their feet. While the typical plaintiff’s case has a natural story and appeal that insulates it from even the most unskilled plaintiff attorneys, convincing a judge and jury to embrace a defense theory requires a delicate dance down a path that is fraught with danger at every turn. Continue reading →
We quickly learned that Richard was a horrible juror for us in the trucking accident case we were working on. We had decent evidence that the plaintiff had fallen asleep behind the wheel and veered into our truck, but Richard wasn’t having it. As soon as this issue came up in deliberations, he jumped in, stating, “I don’t care what he says. We have all been on the road with truck drivers and they routinely fly over into the other lane without any notice at all.” This quote was so powerful because what Richard was really saying was, I don’t care what the evidence in this case is because I’m going to go with my own personal experiences instead. Fortunately, this was only a mock trial, but it highlights an important reality about jury decision-making: it is an ego-centric process, and the research shows it is only getting worse with the emergence of the millennial juror. Continue reading →
This past Friday, I conducted our first ever all-day mock jury selection workshop in Seattle. Ten attorneys spent the day conducting voir dire and picking a jury to deliberate on the product liability fact pattern we put together ahead of time. Then the mock jurors actually deliberated so we could see how well the attorneys did in voir dire and their use of peremptory strikes. We tried to match everything we could to the actual jury selection process used by our local court. The attorneys had to come up with the right questions to ask, get up and ask them effectively to the large group of mock jurors, and then track that information, along with all of the answers provided during the other attorneys’ voir dire. The mock jurors filled out individual feedback forms and also participated in a group interview where they provided their thoughts about the mock voir dire that had occurred.
It made for a fun, interesting, and insightful day. While the mock jurors had a lot to say, there were some common threads throughout their feedback that attorneys should carefully consider when drafting their own voir dire. Here are three key observations from the day: Continue reading →
The critical takeaway from any meaningful discussion about primacy theory and its role in persuading jurors is often the one that is least discussed. Those who tout the importance of primacy theory often talk about priming the jurors to achieve victory, but research shows the real takeaway should be to avoid the early mistakes that cost you the trial. In short, you cannot win your case in jury selection or opening, but you can lose it there.
Everybody knows first impressions are important, but some research shows that negative first impressions are much more powerful than neutral or positive first impressions. This is called the negativity bias and it has been investigated extensively by academic researchers. Specifically, negativity bias recognizes that negative experiences or perceptions have a greater effect on one’s psychological state than neutral or positive experiences. Continue reading →
I’m proud to announce that Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, a book that I co-wrote with Ronald Clark from Seattle University Law School, was published this month by Carolina Academic Press and will be available soon on Amazon and at a variety of other online retailers.
Seattle University Law School alum will tell you that Ron Clark is an outstanding professor who is a master at dissecting complex subjects for his students. This book is an extension of his approach. Ron and I dissect the jury selection process, break it down into all of its various steps, and discuss the kinds of strategic choices that attorneys have to make at each of those steps. Some of those choices may be obvious at times, but many others are choices that a lot of attorneys may not realize are available to them. Continue reading →
Obama arrived this morning (11/8/17) at the Daly Center in Chicago for jury duty in Cook County, but he didn’t have to wait long to find out he had been dismissed. Guess the attorneys won’t have to decide if they would use one of their strikes on him. That, however, doesn’t make the question any less intriguing: Would you strike the former President? If so, why?
Seems like as good a time as any for a quick recap on five dos and don’ts of jury selection. Continue reading →
It has been a busy few months of picking juries for our consultants at Sound Jury Consulting. I have picked three juries in the past three weeks alone and we seem to have had a record number of cases lately that have made it all the way to trial. This has led to a lot of opportunities to see how different attorneys approach voir dire. The different approaches fall generally into three categories: 1) Well-planned and thought-out; 2) Those with questionable goals; and 3) Those with no apparent purpose.
It is difficult to understate the importance of jury selection, regardless of which philosophy you embrace. These are the people who are going to ultimately decide your client’s fate. The problem is that voir dire time is limited, even under liberal conditions. Due to these time constraints, attorneys are often forced to make difficult choices about how to spend their limited opportunity to speak with potential jurors. So let’s look at these three categories in more detail. Continue reading →
Recently, I picked a jury in the Pacific Northwest where the judge provided the attorneys for each side limited time for attorney-conducted voir dire (20 minutes each). While the time allocations for voir dire vary from case to case and from judge to judge, most jury selections involve some sort of time limitations along these lines. In other words, in many case, attorneys probably need more time than they actually receive in order to conduct the kind of jury selection that they would prefer. This has important implications because it means that every choice an attorney makes in his or her voir dire is a trade-off. If an attorney spends time focused on one topic, it takes time away from another topic. Consequently, attorneys are put in the position of having to make some tough choices about how to spend their time. Continue reading →