Julie Campanini, The Daily Record Newswire
Jurors are by nature reluctant to share information, and judges are not the best at ferreting out bias. In fact, they often have the opposite effect.
This article addresses just a few of the things counsel can look for and do when seating a panel.
First of all, counsel needs to know the judge’s particular procedures. Does the judge prefer the “six-pack” approach and allow back strikes? How many alternates are seated? Do the alternates deliberate? The clerk can usually provide the answers in the week or so before trial so that the team knows what to expect.
The pre-trial conference is a good time to talk about cause procedures. It’s critical to know such information up front. It is not sufficient, in my opinion, to rely on the standard question from the judge: “Do you think you can decide this case based on the evidence presented rather than your experience you just mentioned” (or some similar version), or “Can you follow my instructions?” How can they answer honestly when they don’t know what those are?
It takes a confident and strong juror to admit bias to a judge’s face. Most jurors think “bias” means something negative, when, in reality, it simply means they’re not suited for that particular case. Jurors don’t want the judge to frown at them because they do not trust corporations, think someone with a criminal record would be guilty every time, or believe that patents are generally bad for society.
It is possible to glean information from the “basics” that judges use as their voir dire. Depending on the specific case, occupation is probably the most helpful, in that it gives you an idea what that juror does on a day-in, day-out basis. Keep in mind that “where they work” is not the same as “what they do.”
In addition, it is often the case today that people have changed careers or taken a different track during the recession.
For example, if you have a customer service representative who also holds a master’s degree in finance, you should explore that (or implore the judge to): Why the career change? How long were you in your previous job and how long in this one? Consultants who focus on jury selection a lot can usually pick up on these discrepancies quickly and guide counsel for follow-up or, at a minimum, just incorporate the information into the decisions on strikes.
Education is also very important, but for reasons alluded to above, may not be the most important. Many people do not work in their “degree area,” so it matters more what they spend their time doing. An example is the human resources manager who has a teaching degree. That juror would not identify himself as a teacher but could be mistaken as one based on the education information alone.
Occupation and education go hand in hand, but occupation is more telling for attitudes and experiences except in the most technical of cases in which specialized knowledge would be important, e.g., tax cases, patent cases, medical cases, etc.
Body language, demeanor and behaviors are also high on the list. I’m not someone who relies heavily on nodding or crossed arms as predictors of which side a person will come down on. I think jurors have varying levels of discomfort when they’re in the box, and counsel should look for extreme signs of both comfort and discomfort.
For example, a juror who is very comfortable answering the questions and speaks loudly and lacks outward signs of anxiety is a potential leader. The jurors who speak little and with a low voice and are showing other signs of discomfort (lack of knowledge on subject matter, lack of confidence) are likely to be followers.
Jurors who roll their eyes at other jurors answering the questions and show other signs of exasperation could be disagreeable and difficult to work with.
All those things matter to the panel as a whole. Last year I was in a courtroom assisting with jury selection and one of the jurors was weeping out of anxiety. She had claimed hardship but was sworn in nevertheless (we had all run out of strikes). When she realized what happened, her crying escalated, and the judge had to let her go and replace her within the first 10 minutes.
That was a complete waste of time; the juror clearly could not have participated in the trial in a way that was meaningful to either side. Inexplicably, judges all over the country often ignore clear signs of bias or inability to serve just to prove a point, demonstrate power, keep the ball rolling, or any number of reasons that run contrary to seeking justice or giving each side a fair and impartial panel.
Those of us who are in court often can see patterns in people based on hundreds of hours in the courtroom and can proceed more confidently with less information.
In the larger scheme of a trial, taking the morning to question potential jurors is not a lot to ask, and the quality and quantity of information increases exponentially with even just a few, well-crafted queries.
