Worst Jury Selection Advice Ever: Don't Listen

 Posted on January 23, 2009 in Uncategorized

Elliott Wilcox at Trial Theatre (who could teach even John Bradley lessons on self-aggrandizement as a prosecutor) on the outspoken juror giving answers unfavorable to your client's case:

You do NOT want them sitting in judgment of your client. They hate you, your client, or your case, and you don't want them on your jury. In fact, once they give you two or three of those "Get me the hell out of here" statements, you may start feeling like they're going out of their way to poison your entire jury panel. At this point, you certainly don't want to hear anything else they say, because you know that you're going to kick them off the panel. It may be for cause, or you may need to use a peremptory strike, but either way, they are outta here. Since you're definitely going to get rid of them, you probably shouldn't ask them any more questions, right?

Good question...

Wait a moment before you summarily dismiss them. That awful juror whoyou KNOW you're going to excuse or that your opponent is going to excuse... they're still valuable.

... and good answer. You can do wonderful things with that juror. Keep her around for as long as possible to use as a foil.

But wait. A little bit later in Elliott's post, things go sideways.

Let me ask you a question. When a juror like that steps up on their soapbox, what should you do? Your mom probably taught you that you should look at whoever is talking to you. Good manners indicates that if you ask this juror a question, you should look at her while she responds, right?Nope. Looking at her while she answers would be a lousy idea. She's gone. She's going to be kicked out for cause. She is definitely going to be excused.So don't waste your time listening to her. Instead, watch what the other jurors are doing. You already know what this person thinks.

I'm with you as far as using this juror to gauge other jurors. How the other jurors react to the juror who's speaking is important; if you don't have someone helping you pick a jury (bad idea) you will need to observe all alone how the 23 or 59 other potential jurors are responding to the speaker. Even if you have an extra pair of eyes, you will need to be aware enough of your surroundings that you catch the headshakes and nods from the rest of the panel.

But, Elliott, with all due respect, are you nuts? You have to do this while following your mother's excellent etiquette advice: look at and listen to the person who's speaking. This is true whether the speaker is an outspoken nutjob or the voice of reason.

Those 24 or 60 people in the audience-the jury panel-they are a group. About groups: if you honor one member, you honor them all (that's why, in argument, we share eye contact with a single juror for each complete thought); if you snub one, they all feel the snub.

Jury selection is communication (trial lawyering is communication), and the most important component of communication is listening. Not listening to something someone says in jury selection (or anywhere in trial) is advocacy suicide.

If you don't look at the juror who's speaking or - worse - don't listen to her, the rest of the panel is going to see it and is going to hate you for it. When they see that you're not "wasting your time" listening to one of their number, they're not going to waste their time talking to you. And you're dead in the water. (Insert your own snarky "voir dire advice from prosecutors" comment here.)

As a general rule, any jury selection question that doesn't net you at least one answer that's "bad" for your client's case is a wasted question. What you do with those "bad" answers is your voir dire. You can argue with them; a better option is to pretend they didn't happen; a still better option is to acknowledge them and move on; and the best option is to embrace them. "Ms. Jones, thank you for that. Please tell us more. Why do you feel that way? Who agrees with Ms. Jones? Does anyone disagree with Ms. Jones?" (there's a communication lesson in the last 11 words alone).

Accept what the outspoken juror gives you, follow up on it, and use the outspoken juror as a foil. But do it sincerely and respectfully. You might not realize it when it happens, but when you stop listening, your voir dire is over.

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