During the voire dire process we, as lawyers, need to take extra care to determine what attitudes and opinions each of our potential jurors carry with them. We know that we cannot change the attitudes of our jurors during the trial process. Attitudes are formed by prior life experiences. Once these attitudes are formed they are resilient. Given this fact, we do our best to excuse any and all jurors who possess attitudes which are inconsistent with the issues and facts of our case. However, there will be times when we have to keep the lesser of evils on our jury panel given our cause and peremptory challenge limitations. At the same time, as we are doing our best to determine negative attitudes during the voire dire process we are also finding jurors who have attitudes which are congruent with the facts and issues of our case. As we are uncovering these attitudes our assistants are taking copious notes as to what we discover about each juror during the voire dire process. Once we complete voire dire we need not throw these notes away. In fact, we need to be reviewing our notes regularly throughout the trial process.
The ultimate verdict in our case is entirely dependent on how the jurors interpret our presentation of the case. The jurors are thus the judges and decision makers of our case. Each juror is unique. Thus we need to tailor the presentation of our case to the unique characteristics of each of our jurors. For these reasons, we need to review our voire dire notes regularly during trial. It is a good idea to record the voire dire process so that you can listen to the auditory recording of each juror who ultimately remains to hear the case.
Once we review our notes, we can determine what bad attitudes exist amongst our jurors. Once we have this list of bad attitudes we can determine how we can present evidence in a way which shows that those bad attitudes are not relevant in our case. Let’s say, for example, that your client is obese. Let’s also say that we learned in voire dire that some of our jurors have attitudes and beliefs that obese individuals are lazy. We don’t want the jurors thinking that our client is lazy. We thus need to put on evidence which demonstrates that our client is active and hard working. Thus we can look for any testimony or other evidence which demonstrates our client’s work ethic. We aren’t trying to persuade the jury that obese people overall are not lazy as that would be an attempt to change the jurors’ attitudes. What we are doing here is simply demonstrating that our client is an exception to the rule and that perhaps there is another reason why our client is obese, but it isn’t because he or she is lazy.
To this end, when you are conducting voire dire and you are making a decision as to which potential juror to strike, take consideration of which attitudes you will be able to neutralize, if any. This will of course depend on the facts of your case. So given the example above, if your case contains many facts showing that your client has a strong work ethic, then you know that you may be able to neutralize this attitude during trial. Given your facts you may then allow this juror to remain despite his or her attitude.
As stated above, you are also going to be recording juror attitudes which are positive for your case. If, during the voire dire process you find that you have lots of jurors who are pro military and you happen to have a client who served in the military, then you want to be thinking of how you can remind the jurors of your client’s service during trial. To do this you might want to put on witnesses who were also in the military and who can talk about their military experience. Perhaps these witnesses can tell the jurors about how they served with your client. All we are doing here is tailoring the presentation of evidence to the unique characteristics of our jurors.
During trial we need to be thinking about more than just the presentation of evidence. The jurors are watching every action we take. We want and need the jurors to like us more than the jurors like our opposing counsel. We thus need to think about how we can win over our jurors. First and foremost, going into trial, maintain the perspective that you are a servant of the jurors. Make it a point to cater to the jurors whenever you can. If you can request a break for the jurors then do this. If you can get water for the jurors then do this. Let the jurors know that you are their humble servant. To this end be humble at all times when jurors may be watching. You, as a plaintiff’s lawyer may not have a good reputation with jurors to begin with. They likely have preconceived notions that you are arrogant, greedy, and deceptive. Thus, throughout the trial process you need to do everything you can to show that you are none of these things. Thus don’t dress overly flashy. Don’t relish in courtroom victories. Don’t say anything that could be perceived as overreaching or deceptive.
On this same note, keep the jurors happy by presenting evidence efficiently. Don’t waste words with your jurors. For one thing, jurors, just like the rest of us have short attention spans. In this era of instantaneous information, attention spans are much shorter than they used to be 50 years ago. If you drag on endlessly not only will the jurors not retain any of your information as they will lose focus but to add insult to injury the jurors will despise you for wasting their time. Jurors don’t want to be in court. They have jobs and families they need to attend to. If you waste the jurors’ time they will resent you for this and they will likely hold you client accountable for your actions. So do everything you can to trim down unnecessary information. Cut any and all superfluous language from your opening and closing statements. Don’t have your witnesses testify as to any information which does not directly help the jurors reach a verdict in your favor. If an item of testimony does not help the jurors in formulating a verdict for your client then omit that testimony from your presentation at trial.
To keep your jurors interested and happy be sure to make regular and consistent eye contact with your jurors. This keeps the jurors involved. The jurors feel like they are part of the process when you consistently make eye contact with them. Making eye contact with your jurors is also a necessary element of persuasion. When you don’t look at your jurors you don’t build rapport with your jurors. If you want to persuade anyone you had better build rapport first. Eye contact develops trust. Tell your witnesses to do the same with the jurors. The last thing that eye contact does is remind you as advocate who your jurors are. You need to always be considering things from the jurors’ perspective. You should always be thinking about what your specific jurors most need to hear or see in order to be persuaded. By consistently making eye contact with them you are reminded of the fact that you need to tailor the presentation of evidence to your jurors’ unique set of characteristics.
David Ball makes an excellent point when he says that you should always assume that there is at least one extraordinarily articulate and persuasive juror who is giving your opponent the benefit of the doubt at every turn. When you maintain this perspective you are forced to go above and beyond to persuade the jurors. You use every piece of evidence in the most persuasive manner. You use every exhibit you can. This mindset essentially pushes you to prepare for trial at a higher level than you otherwise would.
The last concept to keep in mind during any trial is that of jury nullification. Though nullification is something we are typically fearful of, we should be mindful of it at all times and consider how we can use it to our advantage as well. Jury nullification occurs when jurors don’t follow the law, rather they reach a verdict based on other reasons which are unrelated to the law. Jurors do this all the time. Often times they may not even be aware of the fact that they are doing it. Thus, when you are in trial, give the jurors every reason you can to reach a verdict for your client. The law doesn’t provide that the jurors should find for your client because on whether your client is a likeable person, but you can be sure that jurors will consider this fact. You need to be doing everything you can throughout trial to persuade the jurors like your client. Give the jurors every reason possible to find in favor of your client. Show what a hard worker your client is. Show the jurors that your client has integrity and strong character. Put forth every piece of evidence you have to give the jurors a reason to find for your client.
This information comes primarily from trial consultant and jury consultant David Ball. David Ball is a master of trial advocacy. He has a deep understanding of the human psych and how it can be understood and influenced. If you have the opportunity to see his seminars or read his books please do. The information in this particular short article comes primarily from his book Theater tips and Strategies for Trial Lawyers.