Source of article The Advantage Blog - Tsongas Litigation Consulting.
So often we write about the social science and theory behind sound jury selection. But there is one element – not sufficient alone, yet necessary to a successful jury selection – that goes unnoted. It is jury selection logistics, the coordination of processes, people, information collection, and facilitation of appropriate decision-making.
To oversimplify, jury selection is a critical process whereby a trial advocate and her team are identifying jurors’ experiences and attitudes in order to determine if they have a, or a series of, pre-dispositions that increase the chances that they will be resistant to the case story, themes, evidence, or witnesses. In the small group democracy that is the heart of deliberation, one or two jurors can wield critical influence over the outcome. The art of jury selection is the ability to make the best decisions about risk, with limited opportunities for strikes (whether they be for cause or peremptory strikes).
Jury selection is one of the most important elements of a trial. The procedures, the potential jurors, and the court can slip a trial team up in many ways. The efficient and calm management of those events and an eye toward execution to plan is the goal. And it is principally, we believe, about removing risky jurors, not picking your good jurors. Recently, I had a very respectful disagreement with a state Supreme Court justice in a panel of jury selection. The view expressed was that all sides know what they are really doing is trying to stack favorable jurors on the panel. My retort was that there are only opportunities to remove jurors in the process, not to select them or move them up in the order. It is about managing the information about who the potential jurors are and determining if they present more risk than others. If they are “green” jurors, in our book, they may be fine for us, perhaps even favorable, which simply means we are not targeting them for cause or peremptory challenge. Green could mean they are jurors who have views favorable to your case. Green could also mean they are simply open-minded jurors or jurors who have indicated an absence of attitudinal or experiential risk. If they are “red” jurors or “orange” jurors, again to use a simple rolling coding scheme based on the continual accumulation of data about the jurors, the goal is to get those risky jurors removed. If the other side doesn’t do their job and some good jurors make it on to the panel, that is the other side’s problem.
Jury selection comes in myriad forms, depending on venue, court, perhaps even mood swings. In a federal trial the court may rush trial teams through a fast and furious process where they do not account for any disorganization, delay, inefficiency, or mistakes on the part of a trial team. You are ready and able, or you are not. You are ready to make the best decisions about who to strike, or you are not. The presence or absence of a single juror can make or break an outcome.
On the other end of the spectrum of jury selection procedures is the massive venire, extensive supplemental juror questionnaires, detailed voir dire questioning, and answering of said questions. The problems inherent here are different, but just as critical to the ultimate goal – striking the right jurors.
This is where a simple discussion of jury selection logistics comes in. As jury consultants, we have the opportunity to be in court in jury selection constantly. We get to see the varieties of approaches different courts take. We observe the curve balls that the court and jurors throw at the trial teams’ efforts to manage the information. We get to note the last minute alternations of a judge’s jury selection procedure, the last second “hardship” request, made after the technical period of hardship evaluation has been completed. We have seen the changing standards a court applies to hardship and/or cause challenges as the judge looks out over a shrinking jury pool and does the internal math. One has to be ready and set up to deal with the changes.
Critical to managing all of these variables is the management of the information collection process so that the most informed recommendations can be made to a client. Every trial consultant has their own particular methodology for the tracking of information. We have seen the post-it method, done well and done in a way that results in post-its flying through the air, stuck to the table, back of hands, hair, and forehead (I exaggerate here, but just slightly). We have seen the scramble when a challenge is made against a juror number who is no longer in the pool. We have seen the look on the face of the opposing trial team when they have struck a juror only to move a much more concerning juror into the last seat in the box. We have seen trial teams and consultants attempt to use the latest jury selection application to track the information, only to note the limits of the technology that was supposed to make it all easier and more effective.
In the end, management of the logistics is the key. It is about the calm, methodical awareness of the techniques one uses to track information, capture it, and use it to assess relative risk of one potential juror’s inclusion over another. It is about the constant awareness of the stage and state of the pool before you, so that when the curve balls come, one is ready to adapt to the new information and system and incorporate it into the overall plan. It is about the coordination of the people at counsel tables or other human resources observing, so that the insights of all can go into a thoughtful choice-making process. It is about making sure everyone is on the same page as to the jury selection strategy and plan. It is about making sure there can be, if possible, a time where a constructive discussion can be had before the strikes are made. It is about knowing the “magic number,” the number of people that will be seated on a jury, plus alternates and strikes, so that the team can concentrate their information gathering on the people in the pool who matter more. It is about making sure the peremptory strike list goes a bit beyond just the list of three or six, depending on the court, in case the other side decides to help you out and remove one of your high risk jurors.
Part of the logistics is an approach to “seeing” what is going on. It is about keeping “soft eyes” when evaluating a crime scene, as Detective Bunk from The Wire said to Kima. That is to say, keep the observations wide. Note who else seems to be agreeing or rejecting the statements of other potential jurors. It is about “observing everything, but admiring nothing,” as Lieutenant Fick directed his recon grunts in Generation Kill. That is to say, keep a vigilant scan of the reactions of the people in the pool rather than focusing too much for too long on a particular person. Information is everywhere; you just have to know it, note it, and assess its import. And you need an approach to collect, access, and manage, and to easily compare jurors’ relative risks to one another.
Everyone, through their experience, develops their own approaches to the process. Judges, people in the pool, and court clerks can throw curve balls into the mix at any time. Be ready to deal with those. As the warrior poet Mike Tyson opined, “Everyone has a plan, until you punch them in the face.” Make sure your jury selection approach and your emphasis on logistics can allow you to roll with such punches, and not be stunned by them. The court may or may not give you time to collect your wits, and the right strikes can make or break an outcome.