Cultivating Requisite Variety?

Jury selection, properly conducted, is an unscripted improvisational exercise. In Free Play: Improvisation in Life and Art, violinist Stephen Nachmanovitch writes of the need for “technique to burn” to an improviser:

Galurnphing ensures that we rernain on the upside of the law of requisite variety. This fundanmental law of nature states that a system intended to handle x amount of information must be able to lake on at least x different states of being. In photography, for example, if we want to capture three levels of light, we need a camera with at least three apertures or shutter speeds. In music, if we want to transmit three kinds of emotion, We need to be able to draw the bow or blow our breath or strike the keys with at least three kinds of touch—preferably many more. This is what we call “having technique to burn”—having more powerful and flexible means available to us than we need in any given situation. A would-be artist may have the most profound visions, feelings, and insights, but without skill there is no art. The requisite variety that opens up our expressive possibilities comes from practice, play, exercise, exploration, experiment. The effects of nonpractice (or of insufficiently risky practice) are rigidity of heart and body, and an ever-shrinking compass or available variety.

The law of requisite variety applies to jury selection no less than any other system. The lawyer who has scripted her jury selection can handle one situation, to wit a cooperative panel giving the predictable answers.  Lawyers who have tried cases know how often we get cooperative panels giving predicted answers: never. So the lawyer with a script needs backup techniques for dealing with the jurors who don’t want to go by the script—who want to volunteer information, or argue, or quibble, or not talk at all.

My Sixteen Rules for Better Jury Selection are tools that can be used when the panel goes off-script; they can also obviate the script. Because if you have technique to burn, you don’t need the script in the first place.

(Another rule: Laugh at yourself first—humor is powerful, but only if you are willing to be the butt of the joke. Give me a pithy name for this one. Maybe screw up and stay happy?)

The artist needs “practice, play, exercise, exploration, experiment.” How is the new lawyer to develop the requisite variety to pick a jury, without doing so at the early clients’ expense?

I have inklings of an answer—jury selection is talking to strangers, so talk to strangers; jury selection is improvisational theatre, so take some improv classes; jury selection is listening, so learn active listening and apply it in everyday life—but they are not entirely satisfactory. In truth I do not know.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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2 Responses to Cultivating Requisite Variety?

  1. Troy Bollinger says:

    Amusingly, your premise mirrors something I have been preaching for years.

    Being able to do improv does more to help with jury selection than any other factor I personally know.

    More useful than anything I learned from law school was the experience of working out at the Texas Renaissance Festival for years. If you can keep in character and on point when surrounded (in some cases literally) by tens or even hundreds of random individuals, jury selection becomes much easier and less frightening.

    A jury panel is 40 to 100 people who have to be polite and controlled. They can’t walk away and NO one is competing for their attention. Not one has ever spit beer at me or taken a swing at me. That’s a walk.

    Granted these days the time commitment rules out going back to that greatest of trial schools. Your point still remains true. If you want to be able to talk to jury panels when it matters, talk to people.

    Go to places you wouldn’t go. Talk to people you wouldn’t talk to. Take a random position (doesn’t matter what) and go chat someone up.

    You want the advanced class? Take a position on a contentious issue (Gun Control, Gay Rights, Mac vs. PC ) and go talk to people at random in public. Then, on the same day, prep the same issue from the opposite side. Rinse and repeat.

    If no one spits beer on you or takes a swing, you’re doing OK.

    TB

  2. Justin T. says:

    I like the “screw up and stay happy” rule. I use it frequently when I briefly describe why we do jury selection. I tell the jurors that we’re trying to make sure that no one gets on a case that they wouldn’t be a good juror for, and I use the example of myself being a Cowboys fan; I tell them that admitting that I’m a Cowboys fan may have lost me the trial right then and there, but I tell them that the reason I mention it is because if this were a case about the Dallas Cowboys, I would be a terrible juror.

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