Finding out about a juror’s attitudes
about the issues that are central to your case will likely be more important in selecting a good jury than trying to pre- condition the juror. That is not to say that the art of persuasion is not a central part of jury selection. A skillful voir dire can guide the jury to view the case from your perspective, make them more recep- tive to your case theme, and highlight the strengths of your case. Those strengths will remain in their minds as they hear the evidence at trial. If this is done by asking open-ended
questions, rather than by arguing the case, you will discover the jurors pre- conceived biases. This will in turn allow you to de-select those jurors whose view of the world is unlikely to be in line with your side of the case, and you will have also begun to advance your themes subtly but persuasively from the outset. Because very few jurors can truly “keep an open mind” throughout the case, success at trial means having a head start that begins with jury selection and continues throughout the case.
The disadvantage of the defense The disadvantage of being the
defense attorney in a trial, starting with jury selection, is that you go second. However, if the plaintiff ’s attorney does not make the most of going first, going second becomes the defense advantage,
no matter what time limitations are imposed by the court. The plaintiff ’s attorney has the opportunity to connect first with the prospective jurors by getting to know them and beginning the process of introducing them to the strengths of the plaintiff ’s case. But if the plaintiff ’s attorney does not connect with the jury, doesn’t obtain information necessary to determine the predispositions of the members of the panel, elicits objections from the court, and basically just fails to impress, there is a better opportunity for the defense attorney to shine. Even with a skillful voir dire by the
plaintiff ’s attorney, the defense has the opportunity to explore areas that were not covered by the other side, either by design or because of time limitations, and can further explore areas of bias to estab- lish a basis for a challenge for cause.
When the jury comes in Projecting confidence is important.
Stand, turn to jury, make eye contact and look natural, confident, and neutral. Survey the people in the audience and the options you have been given for your jurors. If your client is present at that point in trial, instruct him or her to do the same. A lot happens before the attor- neys are given the opportunity to address the jury. First impressions are made early and are hard to change. The jurors are looking at you and your client. They are
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Workers’ Comp Services • Intellectual Property Services • Transcription Services FEBRUARY 2012 The Advocate Magazine — 65
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