Jury Selection: Simple Rule 13: The Undertow Rule

In Simple Rule 12: The Field Trip Rule, I talked about how the jury panel is a group, and you have to stay with the group.

This group has sixty heads and sixty bodies, each one of which is throwing off communications cues every second.

It is not possible for one lawyer, talking to sixty people, to listen to and record what one person says and how he says it while tracking the nonverbal communication provided by the other fifty-nine.

Thus Simple Rule 13: The Undertow Rule:

Never swim alone.

Get someone on your team to pick the jury. It doesn’t have to be some fancy expensive jury consultant (though it can be). It’s an excellent assignment for a young lawyer seeking trial experience, but your assistant doesn’t even have to be a lawyer. All socially-ept people are experts, though they might not be aware of it, at reading faces and body language. You want someone at your side to notice that Mr. Bryant was looking crosswise at you while Ms. Velasquez was hanging on both lawyers’ every word.

You have your client, of course, but his position as the guest of honor suggests that he might not be entirely socially competent (not that he’s necessarily guilty, but people rarely wind up charged with crimes because they’ve made all the right decisions). Besides, this is a situation in which four eyes is good, but six eyes is better.

If you can’t cajole someone to second-chair your jury selection, consider that you may not be entirely socially competent yourself. Figure out how you can do better, and never swim alone.

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