Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

62130980_sThe idea of a reluctant jury — a jury of people who would really like to be just about anywhere else, a jury of people who tried like Hell to get out of it and failed — that idea is fairly well ingrained in our system. Among many, especially those who don’t experience the court system on a regular basis, it is considered a truism that most Americans dread jury duty, will try to find a way out of it if they can, and will hate the experience until the end of trial if they can’t get out of it. Certainly there’s plenty of evidence of that reluctance. For example, there are sites that specialize in offering excuses, including an illustrated guide at WikiHow on how to get dismissed from a jury. That whole frame of the reluctant audience can be disconcerting to parties and witnesses. The thought is that not only do you have to persuade people drawn randomly from the community, but you also have to convince a group that really doesn’t want to be there. 

Those who do work regularly with juries, I suspect, have enough experience to know that this perceived reluctance is overblown. And there is an important distinction to be made: Jurors don’t hate jury duty, ‘almost-jurors’ hate jury duty. Those who report to the courtroom, watch an orientation video set to bad elevator music, then spend vast amounts of time waiting for something to happen are the ones who resent it the most. And if they’re called into a courtroom, picked over but not picked, then they’re likely to be annoyed that they were forced to surrender their time to what seems like a pointless exercise. Those who make it, on the other hand, are not just willing to do it, more often than not, they’re are actually interested and excited about it. For many of them, it is probably the greatest social responsibility they’ve had, apart from raising their kids. Recent research backs up that jury duty isn’t nearly as negative as one might think. In this post, I’ll briefly share that research as well as some thoughts on leveraging that interest and addressing the reluctance that remains. 

Remember that Most Jurors Still Value Jury Duty as Part of Citizenship

Data comes from a survey carried out this past April by Pew Research. Based on a representative sample of 1028 American adults, fully two-thirds, 67 percent, agree that serving on a jury “is part of what it means to be a good citizen.” The portion connecting jury duty to democratic citizenship includes majorities in nearly all demographic groups. The enthusiasm is not as high with younger adults, racial minorities, and the less educated, and it is still worth accounting for the fact that close to a third, including almost half of the younger population between 18 and 29, disagree and feel that jury duty “does not have much to do with being a good citizen.”  

But the dominant support for jury duty, at least in theory, squares with our experience. In both real and mock trials, see the role as important and even ennobeling. Asked to pay close attention and to help solve a complex problem that the parties are bringing to them — and for many jurors it is the first time in a long time they’ve been asked to do either of those things — most will step up to the task. 

This is important to Keep in mind, and to share with clients and witnesses who are likely to be less familiar with the realities: In all likelihood, your jury wants to be there. Once selected, they’re generally engaged, and quite possibly even a little bit proud of their role in the process. 

Connect Your Case to That Value

Jurors generally understand in the abstract that their jury duty is an important part of citizenship. But it still helps to connect that value to your case and to make the importance more concrete and salient to the jury. In a criminal defense setting, this is easier: The jury’s role is to be a check on the awesome punitive power of the state, to avoid wrongful convictions or harsh and unfair treatment. In a civil trial setting, finding that social value can be harder, because to many, the typical civil case might seem like people fighting over money, with the jurors feeling like spectators in an otherwise private dispute. 

Jurors in those situations need to understand that they’re still playing a public role. They’re a part of the state’s efforts to help resolve private disputes in a fair and reliable fashion, and that can be just as important as exercising and limiting the state’s power in a criminal setting. But jurors don’t necessarily think of it that way, so tell them. The message ought to be, ‘You’re here to help us fix a problem that we haven’t been able to fix on our own. You’re part of the system that helps all kinds of people resolve disputes in a way that is reasonable, fair, calm, and legal.’ Ultimately, jurors should understand what is at stake and what specific values (e.g., accountability, fairness, equity) they’ve being asked to uphold through their service and their verdict in this case. 

Broaden the Process So It Includes Voir Dire

Trial lawyers’ speeches about the importance of jury duty are often saved for opening statement, and the jurors themselves often think that their service begins only after they’re selected and sworn in. But if the frame during voir dire is that they’re already serving, then might be inclined to see the process as more meaningful and to be more thoughtful, complete, and candid in their answers. 

The judge has told you that if you’re selected, you will be sworn in and serve as a juror in this case. But here is one more thing to keep in mind: You are already serving. No, don’t worry, you haven’t been picked for the case yet, but you have been selected for this process called voir dire that we’re engaged in right now. And that is service. You are already playing an important part in the process of making sure that this case and these parties get a jury that is going to be fair, and will have no problems with hearing all the evidence with an open mind, and delivering a verdict that follows the evidence and the law, a verdict that is unclouded by any opinion or experience that you might be bringing into the courtroom today. So, by reflecting on that, and by considering and honestly answering these questions, you are already serving. 


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