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Tips For Young Lawyers

Seventeen Simple Rules for Better Jury Selection
By:  Mark W. Bennett

After watching many inauspicious jury selection efforts, I realized that I might be able to contribute to practitioners’ jury selection by codifying a few of the things I’ve learned in seventeen years of trying cases and many hours of extracurricular study.

Simple Rule Zero: One Rule to Rule Them All
Jury selection is not only—nor even mostly—about selecting (or deselecting) jurors.
Your objectives in jury selection are to 1) build rapport with the jurors, forming a group to include you; 2) educate the jurors, or help them educate each other, about your case; and 3) find and eliminate unfavorable jurors. If you use jury selection simply for the third reason, you’re missing out on most of its value.

Simple Rule 1: The Nike Rule
Just do it.
This is a rule on three levels.

First, without picking juries, you will never learn how to pick a jury. Reading about jury selection is better than asking others for their scripts, and watching it is better than reading about it, but there’s no substitute for getting up in front of 24 or 60 people and trying to get them talking. You should study, watch, and do, but if you have to choose one, just do it.

Second, if your judge doesn’t allow lawyers to talk to the potential jurors, figure out a way to get permission. A judge doesn’t share your jury-selection goals; the judge’s goal is simply to get people who can promise to follow the law. Thus, lawyers’ questioning is designed to get people to reveal things about themselves; the judge’s questioning is designed to get people to agree with the law.

Third, when you get up to start talking, don’t worry, don’t think, don’t plan your next question. There is nothing more you can do to prepare. Forget your script, forget opposing counsel, forget the judge, and just talk with the people.

Simple Rule 2: The Blind Date Rule
Treat jury selection like a blind date with everybody on the jury panel.
On a blind date, someone has put two parties together. Neither party knows much about the other. Each party wants to learn about the other (to see if the other is a suitable mate) while persuading that the party is a suitable match as well. This imperfect metaphor should steer us toward  an unlawyerly way of dealing with those 60 human beings.

On a blind date, lecturing is out of the question. It can achieve neither of your two immediate goals (learning about your date and appearing not to be a creep). People feel appreciated when they are listened to; you can achieve both of your immediate goals by listening to the jurors’ answers.

Answers to what? Not to yes-or-no questions: those can feel like an interrogation; open-ended questions feel more comfortable. Since jurors decide cases on feelings and justify their decisions with facts, fact questions are most useful when they are introductions or shortcuts to the feeling questions.

Note that it’s one blind date with 60 people, not 60 blind dates. Those 60 people have already formed a group. If you treat one of them without, respect you can offend all of them. If you show respect for one of them, they’ll all appreciate it. If you’re good, you’ll wind up with a group that likes you enough to want to spend a couple of days in trial with you
 

Simple Rule 3: The Shrek Rule
Better out than in.
     [Shrek belches.]
     DONKEY: Shrek!
     SHREK: What? It’s a compliment. Better out than in, I always say. [laughs]
     DONKEY: Well, it’s no way to behave in front of a princess.
     [Fiona belches.]

If your jurors have ideas that you find unpleasant or frightening (and they do), better that they should reveal them in jury selection than conceal them until deliberation.

In jury selection, all untruthful answers are bad. But truthful answers that most lawyers think of as “bad” usually aren’t. A truthful “I think the government is always right,” for example, might be a terrible answer … for the government—it identifies for the defense a juror who might otherwise have carried his views into the jury room.

I am rarely concerned with “poisoning the panel.” People leave jury selection believing what they believed going in. A potential juror with unhelpful views is no more likely to change his fellow jurors’ minds in an hour of jury selection than you are. Rather than shutting down that juror, draw him out and encourage him to expand upon his views. Listen attentively and actively, thank him, and ask how many others agree. The more people agree with him, the better: Better out than in.
 

Simple Rule 4: The 90/10 Rule
Let the jurors talk 90 percent of the time.
In a good jury selection, the jurors do most of the talking. Try to find a way to elicit more information with fewer words. If you have a brilliant defense, find a way to get one of your jurors to come up with it. If a juror or your adversary says something that must be refuted, let your jurors refute it. (If none of them choose to refute it, it’s probably not worth refuting.) You’ll learn more, the jurors will like you more (or dislike you less), and the judge will be more reluctant to limit your time. Get them talking, and keep them talking.
 

Simple Rule 5: The MacCarthy’s Bar Rule
Talk in jury selection like you would talk in a barroom.
If you identify yourself as “attorney” or “Esquire” and want people know that you have a law degree, this one is for you: You’re no better than those potential jurors. If it seems to them that you think you are, they’re going to punish you for it. This is in part a matter of word choice: Don’t use lawyerly words. If you must define a word for the jury, find a substitute. For example, this article is about not “voir dire” but “jury selection.” “Credibility” becomes “believability.” The “jury charge” becomes “the judge’s instructions at the end of the case.”

It is also in part a matter of tone: Don’t condescend. Your jurors might humor you, but they’ll dislike you, and when they get to the jury room, they’re going to show you who is in fact boss—probably to your client’s chagrin.
 

Simple Rule 6: Improv Rule I
No scripts.
Scripts don’t work. If you walk the jury through your list of questions, you’re not ready for the unsettling answers. (Remember the Blind Date Rule: If you show up for your blind date with a list of questions, you’ll be (rightly) seen as creepy.)

I’ve heard a potential juror talk about losing a family member to a drunk driver only to have the lawyer make a note and move on to the next question. If someone tells you his brother was killed by a drunk driver, there is a correct response, and it’s not written in your list.

Most trials boil down to one or two issues. Have a few subjects you want to discuss with the jurors. Figure out a few ways to get them talking about each of these subjects, then stand up and do it.
 

Simple Rule 7: Improv Rule II
Don’t block.
In improv, blocking is when you take another actor’s idea, and negate it:
     “It sure is quiet here on the moon.”
     “No, this is the bottom of the sea.”

Your partner looks bad, and you’ve killed a scene. If your partner says you’re on the moon, you’re on the moon.

If a juror says something that makes you uncomfortable, don’t block it. Instead, mentally stick “in my world,” on the beginning, and deal with it as a sincerely held belief. Then turn it to your advantage. “How many of you feel the same way? Do any of you feel differently? Why?” (Remember: Better out than in.)
 

Simple Rule 8: The Shrink Rule
How do you feel about that?
Jurors decide cases based on their guts, then look for intellectual reasons to support their decisions. They might not see, might disregard, or might discount all facts that don’t support their (gut) preconceptions. Winning your case beginning with the presentation of evidence isn’t impossible, but it’s not nearly as easy as using the evidence to confirm what your jurors already believe.

Here are some possible ways of finding out jurors’ views on one of the issues in your case:
     • Bad jury selection question: “[Proposition you'd like your jurors to accept.] Who disagrees?” (Followed, for the lawyerly coup de grace,   
        by “I take it by your silence that you agree.”)
     • Better jury selection question: “What do you think about [issue]?”
     • Even better jury selection question: “How do you feel about [issue]?”

If you want to know what people’s guts say, you can’t ask them what their brains say.
 

Simple Rule 9: The Beer Pong Rule
The ball is always in play.
In Beer Pong, the ball is always in play. If the ball hits the floor, ceiling, wall, or even leaves the room, it can and should be hit back in the direction of the table. In jury selection, “the ball” is the conversation and “the table” is the case. Almost anything that any potential juror says can be hit back toward another juror.

If Mr. Jones says that he thinks your client is guilty because she is charged with a crime, you could make a note and try to move on. Or you could hit the ball back:
     “How many of you agree with Mr. Jones?”
     “Who disagrees with Mr. Jones?”
     “Ms. Smith, how do you feel about what Mr. Jones just said?”

Even when a topic is exhausted, you can keep the ball in play: “Who thinks it’s time to move on to another subject?” Let the jury help you decide. (This is an idea that I hope runs through these rules: Jury selection is a game played with, not against, the jurors.)
If someone (a juror? the judge? you?) steps on the ball and it won’t bounce anymore, serve another ball. Until then, the ball is in play.
 

Simple Rule 10: The Marathon Rule
Save something for the end.
The court may try to cut you off. Or you and the jury will at some point just run out of steam.

In the first situation, have some lawyerly yes-or-no questions to toss into the mix in case a judge starts grumbling. “Mr. Gonzalez says that he’ll assume that Fred is guilty if Fred doesn’t testify; that reminds me: How many of you have been witnesses in criminal cases?” The judge is used to hearing those kinds of questions; they might buy you more time to ask better, unlawyerly questions.

Whether you realize that the game is over or the judge ends the game, it’s good to have an “out”—one unifying question to ask the entire panel so that you can sit down on a high note. This question should get all of the potential jurors to agree on some fundamental proposition favorable to your case, and therefore will violate most of these rules. For example, “Can we all agree to wait till all of the evidence is in before deciding this case?” or “Raise your hand if you promise to give Fred a fair shake.”
 

Simple Rule 11: The Playing Doctor Rule
If you want to see theirs, show them yours.
Everyone knows the Playing Doctor Rule: I’ll show you mine if you show me yours. If you want your jurors to talk about their prejudices against the group your client belongs to, you need to talk about your own prejudices.

Everyone has prejudices. If you haven’t studied yourself enough to find yours, you’re not dealing with them. You can’t expect your jurors to do any more than you’re willing to do yourself. (Imagine getting up and saying to your jurors, “I don’t have any prejudices. Do any of you?”)

What are your personal issues in your client’s case? When you first heard about the case, what was your “yeah, but …”?
     “Yeah, but he shouldn’t have been there in the first place.”
     “Yeah, but he’s a gang member.”
     “Yeah, but this is his third DWI.”

This “yeah, but” is a good place to start: Your “yeah, but” is probably their strongest “yeah, but,” and if you can mitigate (or eliminate) it before the other side’s opening statement, you might make the presumption of neutrality last at least until your opening statement.

Do this however you’re uncomfortable doing it. You’re going to ask the jury to do something uncomfortable, sharing intimate truths with strangers; you can’t expect them to do that if you remain within your comfort zone. If your client’s tattoos made you nervous, say so. If that’s easy for you, say more specifically how the tattoos made you feel—in danger, frightened. If that’s easy, push a little farther out—say what you imagined about your client that frightened you when you saw the tattoos. It’s okay to show that you don’t feel the same way any more (by sitting close to your client, touching him), but don’t talk about how you got over it—you want jurors to tell you how they are going to get over it.

Do you have the audacity to tell the 12 people who will be deciding your client’s fate that you found him scary? If you don’t, why would they admit to you that they find him scary?
 

Simple Rule 12: The Field Trip Rule
Stay with the group.
When you get up to talk to your potential jurors, you’re an outsider. You are not someone who they are eager to follow. You have plans and places you want to go—a story to tell, compelling arguments to make, information to discover. But you’ve got to go there with the group.

You will find friends on the jury panel—characters who seem simpático and bright, and understand what you’re trying to convey. Your friends are the first people the other side is going to strike. If you’ve spent all your time chatting with them, you’ll have strayed from the group and be left with twelve jurors you don’t know.
 

Simple Rule 13: The Undertow Rule
Never swim alone.
No lawyer can listen to and record what one potential juror says and how she says it while tracking the nonverbal communication of the other 59. Get someone to help you pick the jury. 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. Your assistant doesn’t even have to be a lawyer; all socially competent people are experts at reading faces and body language, whether they know it or not.
 

Simple Rule 14: The Atticus Finch Rule
Be the lawyer they want to stand up for.
Recall To Kill a Mockingbird: Atticus Finch, having lost the case, wearily packs up his things to leave the courtroom. As he’s preparing to leave, the blacks in the gallery stand up for him; Reverend Sykes tells Scout, “Miss Jean Louise? Miss Jean Louise, stand up! Your father’s passin’.”

They stood  up for Atticus because he was an upright, honest man fighting for what he—and they—knew was right. Not easy, in some cases maybe not even possible, but simple. Atticus Finch acted with courtesy and dignity. He didn’t lie, cheat, or rant.

The jury is watching us and listening. they see how we behave toward the judge, witnesses, court staff, opposing counsel, and most particularly them. How we treat others reflects on us and on our clients.

This doesn’t mean being meek. Jurors will forgive zealous advocacy, but they won’t forgive rudeness. Nor will they forgive lying, cheating, or pretending to be someone else. And since they can’t punish us except through our clients, that is what they will do. Treat everyone in the courtroom with courtesy and dignity.
 

Simple Rule 15: The Bat Rule
Ping, then listen. Or fail.
Bats use echolocation: ping! and detect food and obstacles by the signal that bounces back. A bat that doesn’t ping doesn’t eat, but neither does a bat that doesn’t listen.

Your ping is a question. You have to ping. If you don’t ask any questions, you don’t get any information. But if you ping and then immediately start thinking about your next ping instead of listening to the signal that comes back to you, why ping at all?

You don’t get any information by asking questions. Ping, then listen. Or fail.
 

Simple Rule 16: The Herd Rule
Remember that you are dealing with herd animals.
    
     Most people, given a choice between being in a big or small group, will choose the big group. A relic of evolution? I think so. In the
     bigger group, we’ll all be safer from predators. Herd animals don’t want to be cut out from the herd; they want to blend in. Your jury panel
     is a herd.“Do any of you {whatever}? ”
     “How many of you {whatever}?”

The second question presumes that there are some people who {whatever} and, because we prefer larger groups, is more likely to get responses.

If you want to find as many people as possible who share some opinion that will be unhelpful in the jury room, or you want the jurors to commit to a basic and uncontroversial principle, ask the question the second way: “How many of you agree with Mr. Jones that Fred is probably guilty?” If you want the people who share Mr. Jones’s opinion to keep quiet, ask the first way: “Does anyone agree with Mr. Jones that the government should be held to a higher standard than beyond a reasonable doubt?”
 

Simple Rule 17: The Good Humor Rule
Do not take yourself seriously.
Trying a lawsuit is serious business. By the time you get to trial, your client usually stands to gain or lose a great deal. At the same time, humor can be a powerful tool. It is fun, and it engages a different part of the brain than deliberation or fear. If you are going to use this tool in the courtroom, though, you must be prepared to laugh at yourself. When jury selection starts, you are the one thing in the courtroom that you have license to make fun of; once you’ve demonstrated to the jury that they can laugh at you, you may have their permission to laugh at other things.

Deliberate humor in jury selection is a highly advanced skill, and should be participated in only by trained experts. Do not try it at home. But you will say dumb things during jury selection. You will ask bad questions. You will ramble on. If you can recognize when you’ve screwed up, and good-naturedly acknowledge it (“how many of you think that was a really lousy question I just asked?”), the jury will like you and want to help you—and by proxy your client.

Take the case seriously. Take the law seriously. Take your sacred duty to your client seriously. Do not take yourself seriously.

* * *

These rules are not canonical—there will be occasions on which some of them cannot be applied. But any rule from this list, applied singly, will improve any jury selection; combined, the rules are powerful and versatile tools for forming a better jury. Learn to use these seventeen rules, and for then next twenty shining minutes of your life spent talking to a jury panel you will be smarter, taller, and better-looking.

Mark Bennett is a board-certified criminal-defense lawyer in Houston, where he practices with his wife Jennifer. Mark also writes the Defending People blog, where he writes about “the tao of criminal defense trial lawyering,” exploring, among other things, the incorporation of other technologies into trial practice.