How my horse helped me learn to pick a jury Refining jury selection skills through the application of equestrian principles
By Cynthia McGuinn I was well into my for-
McGuinn
ties and over a decade into my practice as a plaintiff personal-injury lawyer when I had my first experience with horses. I had quite a few jury trials under my belt, and my
success rate was good. But I was often surprised to discover during post-verdict interviews with jurors that I had failed to discover in voir dire what their true feel- ings were about the law, about my client and about the case. It was only after I began working with horses that I learned why.
The significance of non-verbal communication
My first learning experience was
with “Jett,” my then fifteen year old Arab gelding. He was a rather skinny, smallish horse with a sleepy expression who would poke his head over the stall door and nicker for the sugar cubes and carrots I brought when I came to the barn to visit the horses. I thought he would be a calm and willing horse and bought him straightaway after seeing the trainer ride him in the arena at a sedate pace. Yes, I assured myself, he will be a fine pet for me; we would become best friends and he would be responsive to my every com- mand.
The first time I worked with Jett was
in the arena. He was standing at the rail- ing, facing away from me and looking out at something in the adjacent field. I wanted to put the halter on him and take him for a hike. How hard could that be? I called his name and waited for him to come. He looked over his shoulder at me and then turned back and looked over the rail again. “Well, he just needs a leader to tell him what to do,” I thought. I walked toward him calling his name and explaining to him my plan for our walk. Once again he glanced over his shoulder at me but this time also laid
back his ears and moved off slowly toward the far end of the arena, keeping an eye on whatever was in the field that I could not see. I decided to head him off by cutting
across his path of travel. We met near the corner of the arena where I maneuvered into a position that wedged him between me and the arena railing. “Fine,” I thought, impressed with my skills of per- suasion, I was nearly at my goal. I moved in. He tried to squirt out sideways. Ignoring the fact that he seemed a bit agitated, I pressed forward and swung the halter line at him. Surely this would garner his acquiescence. He turned away from me and cocked his right leg in my direction, then put it down and stood still. Sensing my advantage, I moved in closer, looked him directly in the eye to impress upon him that I was the leader and quickly tried to slip the halter over his head. The next thing I knew he’d spun around and kicked me and I was flying through the air. I bore the horseshoe imprint of that
kick on my upper arm for months to fol- low but learned some invaluable lessons about horsemanship that are applicable to jury selection.
The danger of making assumptions on superficial grounds
In jury selection many attorneys rely
solely on ethnicity, gender, marital status, profession, apparent disposition and ver- bal responses about the issues as the sole hallmarks of significance in selecting or rejecting a potential juror. For example, there is a commonly held belief that cer- tain cultures are stoic and therefore make poor jurors with respect to general dam- age claims, that potential jurors who are attorneys should always be challenged because they will carry too much weight with the other jurors, that engineers make poor jurors on complex issues etc. Just as I thought Jett would be a pleas- ant, malleable horse, I soon learned oth- erwise. The same is true about broad
generalizations concerning prospective jurors.
Early on in my trial practice, I made
the mistake of leaving jurors on the panel that my intuition told me were bad because they fit what I had been told or had read was the favorable plaintiff juror profile. Similarly, I excused jurors that I intuitively believed would be good because they did not fit the commonly accepted profile of a favorable plaintiff juror. As you can imagine, I had a few “bumpy rides.”
Create an environment for an open communication
Jett wasn’t receptive to having any
interaction with me since his focus was out in the field. Instead of making an effort to learn why, I pressed forward with my agenda. I later learned there was a bobcat out there. Horses are not preda- tors, they are prey animals, so knowing where that bobcat was, was way more important than listening to me. I did not know what was bothering him, and I did- n’t care. I was too focused on what I wanted to communicate and how I want- ed to direct his behavior. The same is often the case when we
start to question prospective jurors. They most likely will always have other things on their mind. They may be uncomfort- able speaking in public. They may be worried about what their friend or their employer will think if they sit on a jury with issues that conflict with the values of their family friends or employer. They may be concerned about how they will pay their bills if they can’t work and their employer only pays for a few days of jury service. They may believe the issues in dispute are too complicated for them to understand and they are embarrassed to say so. They may have had experience with matters similar to those in dispute and therefore be biased for or against your client. They may have artificial lim- its with respect to damages that would preclude a full value compensation award
FEBRUARY 2012 The Advocate Magazine — 73
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