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 →
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 →
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 →
Last month, I wrote about the importance of juror note-taking and raised the question of how an attorney might exert influence over a juror’s note-taking through his or her trial presentation. The fundamental concern was that, despite numerous studies and opinions about the value of allowing jurors to take notes, little attention has been given to how the way in which jurors take notes impacts their use and value during deliberations. This concern stemmed from a recent shadow jury experience I had where I was able to watch the various ways in which the jurors took notes during trial. Some jurors’ note-taking appeared to be completely random with no observable pattern. These jurors appeared to take notes on issues that each side might agree were completely irrelevant. Conversely, they failed to take notes on issues that we felt were extremely important. Other jurors furiously took notes, accumulating their own little transcription of the trial.
The problem is that neither of these note-taking styles are helpful. The random approach provides no structure or map for jurors to draw on during deliberations. The transcription approach buries key issues in the multitude of pages, making it difficult for the juror to locate key items when he or she needs to defend against opposing advocates in deliberations. This can create momentum for the other side and change the course of deliberations. Continue reading →
Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.
Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past. Continue reading →
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. Continue reading →
A nearly universal component of building a cause challenge in voir dire is some variation of the speech about how each party should “start off on the same foot.” The attorney developing the challenge often accompanies this explanation with hand gestures mimicking an evenly-balanced scale. If the venire member admits the scales are uneven or that one party starts off “just a little bit ahead,” it’s often enough to convince the judge to remove him or her for cause (although some judges will shame the venire member into saying he or she can be fair and follow the law).
I’ve always been troubled by this speech. It does not seem to accurately reflect the actual position of each party at the start of the trial and can create confusion (that benefits the plaintiff) over the burden of proof in civil trials. Continue reading →