Jury Selection: Simple Rule 1: The Nike Rule

 Posted on July 31, 2009 in Uncategorized

Rule 1 of my Simple Rules for Better Jury Selection is the Nike Rule: Just do it.

It's not a very sexy rule, so I won't lead off with it when I'm speaking in Waco in September (I'll probably put it at the end for the few faithful who stick around); I'll give you Rule 2 (The First Date Rule) soon, so don't feel too ripped off.

Just do it. A rule on three levels.

First, the view from 30,000 feet: without picking juries, you will never learn how to pick a jury. Reading about jury selection is better than asking other people for their scripts, and watching jury selection (good, bad, or ugly) is better than reading about it, but there's no substitute for getting up in front of 24 or 60 people and trying to get them talking about what they feel and believe. Better you should do all three-study, watch, and do-but if you have to choose one, do it.

Second, in the downwind leg: if you're going to trial in a court (like most federal courts) that doesn't allow the lawyers to talk to the potential jurors, figure out a way to get permission. Your objectives in jury selection are: 1) to build rapport with the jurors; 2) to educate the jurors (or to help them educate each other) about the issues in your case; and 3) to find and eliminate unfavorable jurors. A judge's objective in jury selection is to get twelve people who can promise to follow the law. This is not the same thing.

This was graphically illustrated in a cocaine case that I helped Norm Silverman try in U.S. District Judge Nancy Atlas's court. The first time we picked a jury, the judge brought in 45 or 50 people and gave each lawyer 40 minutes to talk. Norm busted the panel-there weren't enough potential jurors who could commit to being fair, after he had talked with them for 40 minutes, to allow the parties to use their peremptory challenges and still get a 12-person jury. The next day Judge Atlas brought in another 45 or 50-person panel and did all of the questioning herself. She asked the typical U.S. District Judge questions-can you be fair? this is the law; will you follow it?-and there were more than 40 people left before we exercised our peremptory challenges.

Was the second panel intrinsically fairer than the first? Nahh. (In fact, demographically, it was much less favorable-older and whiter-to our client than the first.) The difference was that the lawyers' questioning was designed to get people to reveal things about themselves, and the judge's questioning was designed to get people to agree with the law. You're not going to find a better judge than Judge Atlas, but a questioner sitting up high in a black robe is never going to get the frank answers that a mere human can get, so get the judge to let you question the jury, if possible. (And if you get to question the panel in a jurisdiction where it's usually not allowed, don't bust the panel unless you have to.)

Third, on final approach: the Nike Rule applies in a different sense to the moment when you get up to start talking. Don't worry, don't think about it, don't plan your next question. Forget your script, forget the prosecutor, forget the judge, and talk with the people. The time for worrying and thinking and planning, for scripts and prosecutors and judges, is past. There is nothing more that you can do to be prepared for this moment.

Just do it.