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.