Jury Selection: Simple Rule 2: The Blind Date Rule
You may not have noticed this, but people don’t like lawyers very much. Or rather, they don’t like people acting like lawyers very much. Once they get to know them, they like the human beings behind the label just fine, but it’s not the jurors’ job to go behind the label, and if you define yourself as “Big Important Attorney Man” they’re not going to. I bet a young lawyer $50 that he would get laid more if his business cards said “Self-Important Asshat, Esq.” instead of “Attorney at Law”. Not the easiest $50 I’ve ever earned, but it was easier than stringing barbed wire.
(Not unrelated: screw up and stay happy.)
So Rule 2 of the Simple Rules for Better Jury Selection was to be The First Date Rule:
Treat jury selection like a first date with everybody on the jury panel.
“Blind date” is a better metaphor, since the parties to a non-blind date have presumably each chosen the other, or at least formed first impressions. In jury selection, neither the lawyer nor the jurors have exercised any selection before arriving in a room together.
So: Treat jury selection like a blind date with everybody on the jury panel.
How is jury selection like a blind date with 60 people?
Someone, thinking they might be a match, has put two parties in a room together. One party—the lawyer—has some desire to be there. The lawyer has some idea of a desired outcome (I know, I know: I’m a hopeless romantic). Neither party knows much about the other. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likable, and thus a suitable match as well.
It’s not a perfect metaphor (can there be a perfect metaphor for a thing, other than the thing itself?), but it steers us toward what I think is a decidedly unlawyerly way of dealing with those 60 human beings.
Lecturing is clearly out of the question. You can achieve neither of your two immediate goals (learning about your potential mate, and appearing not to be an asshat) by lecturing.
People feel appreciated when they are listened to. Think about how much time in the day you spend with someone hanging on your every word. So you can achieve both of your immediate goals by listening to the jurors’ answers.
Their answers to what? To your questions, sure, but the questions are secondary; it’s the answers that are important. If you can get your jurors talking without asking any questions, and then just listen, you’re winning.
If you have to ask questions, what kind of questions? Yes-or-no questions can feel like an interrogation, so maybe open-ended questions will feel a little more comfortable. Questions about facts, or about feelings? A little bit of both—either can get intrusive—but jurors decide cases on feelings, and then use facts to justify their decisions, so fact questions are most useful when they are introductions or shortcuts to the feeling questions.
One more thing: It’s not 60 blind dates. It’s one blind date with 60 people. Those 60 people have formed a group in the hours that they’ve been processed through the courthouse to sit before you. They know each other’s names, they have a pecking order, they have inside jokes. If you diss one of them, you’ll offend all of them. (If, on the other hand, you show respect for one of them, they’ll all appreciate it.) Before you shut one of them down, you’d better be damn sure that you’re culling an outcast.
If you’re good, you’ll wind up with six or 12 people who like you enough to want to spend a couple of days in trial with you and who you know enough about that you are comfortable returning the feeling. If you’re very lucky, your adversary will have outlawyered you in voir dire, and your jury won’t feel the same way about him.
Previously: The Nike Rule.
Up next: The Shrek Rule.
About The Author
You’re right, metaphors are great for getting us thinking, then the more we think within the metaphor, the more we realize it doesn’t quite fit. Great thought-trigger, though.
So, I’ll add to the dating metaphor, see your “listening” and raise you a “make a connection to” and a “do a perception check.” Good for dates, at least, and possibly great with strangers who do not wish to be on a date at all.
Listening does not equal getting what the potential juror was saying. We are more often than not, wrong. Perception checks: How would that work, do you think? Can you give an example? Always? How often? Why? What about if .…
The ultimate (for try-out dates, for sure) is connecting with. * Me, too’s! * That’s when our skeptical dates start to feel connected. Me, too’s: I knew someone like that; Something like that happened to me, who else? My grandmother used to say something like that! My dad had that rule, too. ** A juror says something and we connect to it, revealing shared points-of-view, values, family, pet-peeves.
Thanks for the metaphoric thinking, Mark!
Thanks you.
Listening = active listening. That’s for another day; it might wind up with its own rule.
Active Listening isn’t just for voir dire, though.
I once did a whole cross of a cop on how much more accurate his interview with my client could have been if he had engaged in Active Listening and Perception Checking. [I knew this would resonate with two different jurors who had recently been in couples counseling.] It was fun. For me and the jurors, at least. [Crossing on the facts is rarely as much fun.]
P.S. “Speed-dating Rule” for voir dire discussed in my book, actually. I’m not beyond jumping onto trendy metaphors with less-than-perfect fit.
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Too true. That “big important lawyer” personality is really off-putting.
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