Jury Selection: Simple Rule 8: The Shrink Rule

 Posted on August 25, 2009 in Uncategorized

We lawyers are analytical creatures. The LSAT doesn't include a section of intuition puzzles. So Simple Rule 8 for Better Jury Selection is The Shrink (as in therapist) Rule:

Rule 8: How Do You Feel About That?

Jurors decide cases based on their guts, then look for intellectual reasons to support their emotional decisions. As a result of confirmation bias (h/t Dennis Elias of Litigation Strategies for the link), they might not see, might disregard, or might discount all facts that don't support their (gut) preconceptions.

If you want a really hard job, try to win your case beginning with the presentation of evidence. It's not always impossible, but it's not nearly as easy as using the evidence to confirm what they already believe.

Can you talk with (or to) the jury about ideas and things, and get them to reveal their emotions? Not likely (different parts of the brain). Can you talk with them about ideas and things, and influence their emotions? Sure, but it's an unnecessarily roundabout approach.

Here are some possible ways of finding out jurors' views on one of the issues in your case:

  1. Bad jury selection question: "[Proposition you'd like your jurors to accept.] Who disagrees?" (Followed, for the asshat lawyer coup de grace, by "I take it by your silence that you agree.")

  2. Better jury selection question: "What do you think about [issue]?"

  3. Even better jury selection question: "How do you feel about [issue]?"

If you want to know what people's guts say, you can't ask them what their brains say.

How do you feel about that?

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