N. Denise Taylor Editor-in-Chief
Jury selection
from a defense perspective Make a good first impression on the jury. If they like you, the better the chance they will like your case. And being a woman trial lawyer won’t hurt
It has been reported that anywhere
from 70 percent to 90 percent of jurors do not change their minds after they have heard the opening statements of counsel. For this reason, opening statements, which frame the juror’s belief regarding what the case is about and therefore who should win, are considered by many to be more important than final arguments or even the actual evidence itself. Most good trial lawyers believe that
most jurors make up their minds by the end of jury selection, before they even hear opening statements. This makes the jury selection process, also known as voir dire, arguably the most important part of the trial. Yet it is the part of the trial in which new attorneys, in particular, feel most uncomfortable and unprepared. Understanding the psychology behind jury selection, and having a strategy before beginning the process, is key to winning the case.
Jury selection Each juror brings to the courtroom
life experiences that predispose him or her to one side or the other, and in reali- ty, these predispositions are more impor- tant than skillful lawyering, indoctrination
64 — The Advocate Magazine FEBRUARY 2012
or preconditioning during the voir dire process. Although jurors are required to base their decisions and ultimately their verdict on the objective evidence pre- sented at trial rather than on sympathy, passion, prejudice or bias, the fact is that a juror, in deciding whether to believe the plaintiff ’s or defendant’s version of reality as presented at trial, will be inclined to interpret the evidence to fit within that juror’s preconceived ideas or beliefs. In a medical-malpractice case, if a
juror has had good experiences with his or her doctor, has respect for the profes- sion, and believes that doctors are basi- cally honest, caring and competent, then that juror is more likely to believe that the evidence of malpractice presented by the plaintiff is the result of an honest mistake or error in judgment that can happen without negligence. If however, a juror or a family mem-
ber has had a bad medical outcome it may cause the juror to believe that doc- tors are incompetent, careless, or are driven by a managed care system to the detriment of their patients. That juror will be more likely to see the evidence favorably for the plaintiff.
While these biases can be overcome
in a lopsided case, if a juror with a strong bias remains on the jury there will not be the level playing field that prospective jurors are told is the ideal. In reality, all good trial lawyers are really looking for jurors that are pre-disposed to their case, even if the juror is able to say under oath to the court and counsel – and believe it – that they can be “fair” to both sides. Most jurors would like to believe they can be fair. It is difficult, however, to per- suade a juror to believe something dur- ing trial that does not fit within their view of the world. In the past, it was very common to
conduct voir dire by asking prospective jurors mostly leading questions in order to “indoctrinate” them with their view of the case. The judge had already asked the basic demographic information, and neither side would ask the jurors many open-ended questions. Rather, they would rely on long-held stereotypes and make up their minds about each juror’s “predisposition” based on their sex, race or ethnicity, religion or employment. Jury panels, without a doubt, have become more diverse over the years and the old stereotypes are just not reliable.
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