Picking jurors who’ll take your side

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By Nancy Crotti
Dolan Media Newswires

Jury selection is the only process leading up to and including a trial in which an attorney doesn’t know what the answers are going to be, according to Diane Wiley, president of the National Jury Project.

“You have no idea what (jurors are) going to do, and it’s a very disconcerting kind of a process because of that and because the stakes are so high,” said Wiley, a co-founder of the 39-year-old firm and a trial consultant based in Minneapolis.

Whether it’s a civil or a criminal case, the basic principle of jury selection is the same, according to Wiley.

“You have to sit down and look at your case and say to yourself, ‘What could people have biases about that would lead them to come into the case leaning against me to start out with, which would keep them from finding for us at all?” she said. “There isn’t a case out there where somebody isn’t going to have preconceived ideas about the issues in the case.”

The key is preparation, she said.

Case-specific questionnaires help attorneys to learn about potential jurors’ experiences, said Wiley and other experts.

“You can read them beforehand and know who your jurors are and it can expedite the process,” said St. Paul defense attorney Earl Gray, a former public defender and federal prosecutor. “They’re very helpful.”

Depending on the case and the information shared in a questionnaire, an attorney may ask the judge to question a juror in private. For instance, Gray and Wiley said, in criminal sexual assault cases, jurors may not want to discuss their or their relatives’ experiences in front of other jurors.

Jury research and litigation consulting firms such as DecisionQuest will help attorneys formulate questions for such a questionnaire or questions to ask jurors directly, according to Marygrace Schaeffer, a vice president in the company’s Minneapolis office.

“These services are pointed at finding out who the dangerous jurors are for this client in this case,” Schaeffer said. “Jury selection is all about de-selection. You don’t get to pick who you get. You only have your opportunity for peremptory strikes and perhaps a challenge for cause and that’s it.”

The judge may or may not agree to a challenge for cause, so the attorney must prepare an argument to persuade him or her. Wiley recommends role-playing to hone the skills needed to quickly and effectively wage such an argument.

Discerning who the “dangerous” jurors are means identifying the filters through which they process information, according to Schaeffer. That used to be easier 20 years ago when attorneys were able to more accurately stereotype prospective jurors by their dress or occupations. As the economy and society have changed, such stereotyping isn’t as reliable, Schaeffer said.

“Voir dire is very important,” she said. “You don’t know at face value what you’re facing.”

Gray said he sometimes uses stereotyping to figure out a juror’s mindset. “You can stereotype them to a degree and look at them and decide if they will like you or your client,” he said. “A lot of times, it’s a gut reaction.”

It also helps to study the judge’s jury-selection style, either in person by sitting in at a different trial with that judge or by asking another attorney who has recently appeared in a jury trial before the same judge.

“Judges have their own styles and they have their pet peeves for questions they don’t like,” Wiley said.

These experts offered several other do’s and don’ts about jury selection:

• Take the time to prepare for voir dire.
• Ask open-ended questions and follow up when necessary.
• Rather than thinking about what you’re going to say when it’s your turn, listen to the judge’s and other attorney’s questions and don’t repeat them.
• Despite your jitters, be conversational and respectful of jurors.
• Ask for honesty in oral voir dire rather than fairness and impartiality. Jurors will usually claim they can be fair and impartial.
• Focus on case weaknesses in your line of questioning to ferret out jurors who might be dangerous to your case.
• Don’t waste valuable time on questions that have already been answered in a questionnaire.
• If a juror responds in an unexpected way to your question, follow that juror’s lead. It might help you determine whether or not the juror will be dangerous to your case.
• Look for leadership among the jurors. An educated juror who appears to be a leader and who has an adverse experience to your case could sway the other jurors against your client.
• Consider the facts of the case and the law before deciding what kind of mindset you want in a juror.

“There are going to be strong jurors and not-strong jurors,” said Gray. “If there’s a strong juror, you want to be damn sure that juror is on your side.”