The Hair in the Food, and Jury Selection

 Posted on June 25, 2009 in Uncategorized

A few rules from growing up Bennett:

1. Never lose altitude unnecessarily.

2. Slow, slow. Look, Look.

3. Never pass up a chance to relieve yourself.

4. Don't let too much small stuff pile up (this is the companion rule to the more widely known "Don't sweat the small stuff" and "It's all small stuff").

5. There's always a hair in the food.

This last rule is crucial to a correct understanding of both life and jury selection.

A hair in the food is disgusting, right? Eating someone else's hair never killed anyone but, still, not eating someone else's hair is-as a general rule-better than eating it. When you're eating at a restaurant and you find a hair in your food, if you didn't already know that there's always a hair in the food you might get upset and angry.Once you know that there's always a hair in the food, though, you celebrate when you happen to find it. (You also don't complain: if you find a hair in a dish and send the dish back, you're guaranteeing yourself a second hair, and you might not be so lucky as to find it the second time.)

Bearing in mind that there's always a hair in the food, you will eat more mindfully, aware that each bite could contain a hair. Finding a hair, you will think, "excellent! I found the hair!", but you won't start eating any less mindfully, since the corollary to the rule is, "sometimes there's more than one."

Life is like that too. When you discover an unpleasant secret, you can be unhappy about it, or you can be happy that you discovered it ("Fantastic! If I hadn't known that...").

So it is with jury selection: there's always a hair in the food. Every juror has at least one "bad" answer-one that would, if every juror shared it, torpedo your case-inside her. You can have various objectives in jury selection-build a group, educate the jury, have fun-but whatever your other goals, the more of these hairs you discover, the more successful the jury selection.

I watched a lawyer picking a jury once freak out at a "bad" answer that one potential juror gave her. He had a different worldview than she did, and she raked the poor guy over the coals. It didn't help that he was elderly and black and she was young and white, but what really hurt her case was that her treatment of him was unfair. He had earned that worldview, and anyone who wasn't a sheltered child of privilege knew it.

She hadn't gone into jury selection accepting the fact that she was going to find bad answers, much less looking forward to doing so, still less making it her mission to do so, and she wound up with a jury that didn't give her any more bad answers, instead carrying them into the jury room, where they quickly ruled against her (and, by extension, her client, the government).

I'll talk later about what to make out of all those hairs you find. Until then, just remember: the fewer hairs you find in jury selection, the more you're eating.

Digest This!