Source of article Litigation Strategies.
It’s your room. Work it. They are your guests. Welcome them. Smile….
In the courtroom setting, the venire panelists have most recently been herded about by the court staff and filled out some form and watched some civics class video on jury service and mostly looked around at their fellows and shuddered to themselves about “This is a jury of MY peers? Oh, gawd! What am I doing here and when can I go home?”
Your first job is to tell them you will tell them about their job and help them do it. Once they have entered the courtroom for jury selection, they are disgruntled, impatient and also curious about what is going to happen next. To get a feel for the typical panelist’s experience, one only needs to click over to JuryExperiences.org and read the scores of commentary from folks who did their time for the common good. It isn’t pretty.
Trial attorney and advocacy skills teacher, Keith Evans writes, “Although they are obliged to sit there, they are not obliged to listen to you. Since you have a captive audience, you owe it to them to make the trial and entertaining as you possibly can.” Yes, entertain them. Interest and participation are captured when you surprise them and pique their curiosity. Make ‘em laugh. Make ‘em crane their necks to see what’s going on. It’s your room and your spotlight. If you make it entertaining they will listen and they will speak.
You have to be relaxed yourself to make this happen. You will need a calmness and a ready smile. There is nothing that makes a panelist detach quicker than watching a “suit” sweat and stammer. While it is a subject for another day, you must have your script of issues for exploration written out and memorized. Don’t read your questions, you must know your lines by heart. The current media blasts regarding President Obama’s “reliance” upon a teleprompter is instructive. Look spontaneous and prepared and your perceived competence and credibility will be enhanced. Reading from notes at the podium makes you look like a lox. Cold fish isn’t something most jurors are excited about, or particularly want to talk to.
In this public setting panelists are struck by a couple of things: 1) You attorney’s are better dressed then they are, 2) The judge really does wear a robe and sits above everyone else, 3) It might be better to allow everyone to think them a fool, rather than opening their mouths and proving it; 4) Conversely, others will follow the old wisdom of “fools rush in where wisemen fear to tread” perhaps wearing a Princess Leia costume and wig spouting about the Force; 5) Oh my gawd! They want me to speak in public?!; 6) I hope they don’t ask my about my marijuana bust back in 1986, and finally, 7) What kind of stupid question is that!?
People asked to answer personal questions aloud in a group of strangers and also in a court of law will tend to not know exactly what to say or how far to go. They don’t want to look stupid, weird or bad. They don’t want to appear foolish any more than you do. Most will probably want to be PC. You can help them feel right at home.
An effective and engaging way to bring panelists to their ease in disclosing their beliefs and experiences is to practice using a normalizing preface to each line of questioning.
For example, using the issue of Damages:
“Many good folks have spoken up in the news and in politics about their concerns and discomfort regarding the amount of money paid to people who’ve been injured and win a lawsuit. It can get reasonable people pretty riled up.”
In this statement you’ve identified the area you want to discuss and you’ve set a behavioral standard that says that ‘good and reasonable people’ have those opinions. The statement “normalizes” the attitude and creates a context that invites them to be like these other good folks and tell us all how you feel just like they do.
Next you move to the particular issue: “How do you feel about whether there should be upper limits on the amount of money jurors can give? Follow up, ‘tell me more’ or ‘what else?’. Then, “On the other side of the coin, how do you feel about whether there should be lower limits on the amount of money jurors can give?” Follow up. Keep the ball rolling and harvest as many folks as you can who will comment on these issues. If you are short on time, ask folks who feel the same as the initial juror to raise their hands and keep them up until you can identify them for later.
You are conducting a “town hall” meeting and you genuinely want each and every one of these citizens to make their values and purposes known. Smile, appreciate, thank them and identify those who have the strongest expressions of fervor for your later strikes for cause approach, but not right away.
Now move in, they are warmed to the task. “What problems would you have with being on a jury that’s asked for a verdict of $XM or $XXM? (If you can’t specify an amount for intangibles, try, “medical bills and lost wages are $X.XM, but the human losses are many times greater.) What problems will you have being a juror if that the kind of money we’re talking about? Head off a staking out objection by this framing, “I’m not asking if you’d give it, but only what problems you’ll have if you decide it’s the right amount. Some people have problems giving that much. Mr. Juror, how do you feel about it?
Focus on the good folks who balk to give any “big” amount. Draw them out. Find out just how strong their objections are and just how much of a problem it would be giving that much.
Don’t worry about poisoning the jury by having them hear the opinions or attitudes that are more likely than not unhelpful to your case. Nobody’s empassioned statements are going to change anyone’s mind, but they might give another like minded panelist the impetuous to indicate agreement and speak up themselves.
Now further narrow the funnel and focus in: “During the trial, we’ll tell you about John’s pain and suffering. But there’s nothing on paper with prices attached, like there are with his medical bills. What trouble would you have including money in your verdict for pain and suffering? I’m asking you this because my own father thinks money for pain and suffering should never be given, because it does not make the pain and suffering go away. (Normalizing statement) Other people think money for pain and suffering is ok. How many of you are a little closer to people who think money for pain and suffering is ok? (Wait for hand raise and then…) How many of you are closer to my father who would have a little trouble giving money for pain and suffering because it can’t make the pain and suffering go away? Follow up, open ended e.g., “tell me about that” and get the cause strike.
Create a welcoming and open “town hall” space (tell them that what you want to do is do a townhall experience like Mr’s Obama and McCain.) Think that you are the moderator and your job is to create a dialogue. Encourage strong voices to disclose and set the mark high, so that folks who feel the same way but aren’t as willing or able will have a spokesperson, and then count the folks who would get in line behind your most extreme panelist. Follow up with each one and elicit the recognition admission from each that it would be difficult, if only a little, to step around their strongly held beliefs and values. Set the pick for the cause strike or at least red flag your peremptory strikes.
Repeat on each significant voir dire issue.
It’s about normalizing the attitudes and the act of disclosing it “among like minded, good people”. We like folks who are like us and expect fair treatment from them. Create an environment of open forum and encourage pertinent disclosures on issues and attitudes of concern. Smile, as they are your guests and you are simply making a seating chart for the table.
A good host will quickly learn who to seat and who to invite to the red car/blue car trial down the hall.
picture credits: http://www.flickr.com/search/?q=jury+selection&page=2