We talk a lot about jury selection here, and one message comes up over and over. To get good at voir dire, you need to set aside your assumptions, and instead see the real men and women in the jury box. It isn't easy; your brain on autopilot is a pushy creature. But if you're trying to really see, the world is your classroom. Everything from your morning paper to your office politics is a chance to practice.
So is, it turns out, a trip through the best law blog posts of the past week. So here is Deliberations's list of 17 Best Tips For Voir Dire, as inspired and illustrated by some terrific law bloggers.
1. Assume nothing
If you assume you know what a potential juror -- or anyone else -- is about, you'll be wrong. Take the ungainly mobile phone salesman from South Wales auditioning for the show "Britain's Got Talent." In the video attached to Susan Cartier Liebel's "Lacking Confidence As a Solo? Sing Opera," he's so nervous he looks like he's going to cry -- but at the end, he's the only one not crying. You may have seen it already, but watch it again, and read the great personal story Susan tells in her post on it at Build A Solo Practice, LLC.
2. Look for leaders . . .
In voir dire you're looking not just at how individual jurors will respond to your case, but also how they'll work together. If one juror will steer the discussion, you want to know that.
Start with the talkative guy in the back row, since he's so easy to spot -- the guy who gets everyone else talking too. This week that was Scott Greenfield at Simple Justice. Scott was on the front end of the taser-at-the-Kerry rally story with "Elimination of Annoyances by Force" and "Jerk in the First Degree." Then Scott turned journalist, reporting the story of the New York trial where a murder charge was dismissed by a judge but then "mistakenly submitted to the jury," as the New York Court of Appeals put it. Orin Kerr's "A Remarkable Story" at The Volokh Conspiracy and Carolyn Elefant's "Conviction for a Murder Charge That Was Dismissed" at Inside Opinions picked up Scott's post and spread it far and wide. Meanwhile Scott himself was getting quoted in the National Law Journal for something else. If that guy is on your jury, you'd better convince him.
Look too for possible "social directors" -- jurors who might not dominate the discussion, but who will shape how the group works together. These include the ones who will make friends and organize the reunion party next year. Diana L. Skaggs at Divorce Law Journal would be one of those; she and Idealawg's Stephanie West Allen are "Calling Lawyers Who Blog" to "a gathering of lawyers who blog at next year's Idea Festival." Robert Ambrogi at Robert Ambrogi's LawSites brings bloggers together too (which qualifies him to speak sternly this week "On Blogging, Copyright and Transparency"). Gideon provides the social center for public defenders at Public Defender Stuff, listing among other things new posts from public defender blogs every day. And of course there's David Lat's virtual water cooler, Above The Law. A jury with any of those folks on it would have a color-coded snack duty roster hanging on the jury-room wall by the end of the first day.
3. . . . and dissenters
At the other end of the group dynamics scale, look for the juror who might not want to go along with the group. And whether or not you've recognized that juror, be ready for deadlock at the trial's end, with some idea of how you'll ask the judge to respond. The judge in Phil Spector's California murder appears to have botched it, as Jeralyn Merritt at TalkLeft explains in posts Wednesday and Friday. "Here's how to blow a five month trial out of a judge's desire to avoid a deadlocked jury," she says: "Let the jury deliberate a week and then change the jury instructions to add new ways the jury can find the defendant guilty."
4. Watch for points of view
Almost any trial can be seen from a political perspective. Walter Olson at Overlawyered doesn't hide his: he supports tort reform. He'd have no patience for the recent voir dire in which a plaintiff's lawyer suing British Petroleum projected a huge image of Enron's logo behind himself as he questioned jurors. "Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff's attorneys," Olson muses. It's great reading, but I'm guessing Walter Olson will never get to sit on a tort jury.
5. Look for skills
We often ask jurors to work at a high level, and it's worth figuring out in voir dire which jurors bring the skills the group will need. Many jurors are math-challenged, but more and more trials require a facility in math, like the ones Leon Gettler warns us of in "Securities Lawsuits On The Rise" at Sox First. Some jurors struggle with language, either because of literacy problems or because English isn't their first language -- and then there are language gurus like Ken Adams at AdamsDrafting, who can do multiple posts on what the word "material" means. Then there's the basic challenge of absorbing hours of new, and often not sequential, information. We all struggled with this in law school; anonymous new professor "Alex Aebutian," guest-blogging at Civil Procedure Prof Blog, helps his students by telling them not to try to outline.
6. Notice how they process information
In many trials, one side (typically the plaintiff or the prosecutor) seeks jurors who'll quickly decide how they want this story to end, while the other side seeks jurors who'll parse the instructions and the patent claims, making sure that every legal T is crossed. I call these "story jurors" and "process jurors," and you can sometimes recognize them in the way they express themselves.
Lee Barrett of E-Everything for Bankruptcy Lawyers... might be a process juror. Here's a pretty good hint: he calls the new Maryland E-discovery protocol "Cooler Than The Matrix." (It's a very thorough and helpful post, whether you're in or out of Maryland.) Likewise Lawrence Solum's meticulous summary of the various standards of appellate review, at Legal Theory Blog, sounds like the work of a process juror.
On the story juror side, Brett Trout at Blawg IT explores plagiarism, something story jurors have trouble forgiving even when it's clearly legal. Brett's posts deal with lawyers' and judges' plagiarism: Iowa Lawyer Sanctioned for Plagiarism and More on Plagiarism in Legal Briefs.
7. Know what generational differences mean, and don't
Even lawyers who've conquered most of their other assumptions still think they know how older people, or young people, will react in the jury box. At idealawg, Stephanie West Allen discusses Generation Y from the perspective of both law firm management and intellectual property law, and suggests we're better off asking ourselves questions than thinking we know all the answers.
8. Pay attention to the quiet ones
Then there are the jurors who just don't talk much. Two words of advice from Mark Bennett of Defending People: poll them, when the verdict comes in. In a recent trial he describes in "Why We Poll the Jury," it made all the difference.
9. Remember they have lives
For reasons I can't explain, most lawyers believe that when they're talking to potential jurors, the potential jurors are paying attention. It's not always true. Jurors are trying to listen to you, and sometimes succeeding. But nearly every juror will be distracted often during the day by some aspect of the busy life that didn't stop when she was called for jury duty.
One may be worried about an elderly parent in a nursing home -- perhaps with good reason, notes Frank Pasquale of Concurring Opinions. Another may be lost in the world of the online game he spends hours playing each day. (Online gaming is so strong that it supports real-money transactions with unclear legal ramifications, report students at the University of Illinois College of Law in their innovative Illinois Business Law Journal.)
One juror may just need caffeine; Jamie Spencer at Austin Criminal Defense Lawyer noticed a report on caffeine's addictive qualities, and considered how differently the law treats different drugs. Another juror may be a nursing mother, wondering if she can make the logistics work. New blogger Daniel Schwartz considers workplace nursing policies at Connecticut Employment Law Blog.
And yet another juror may be distracted for the very best of reasons. Karl Keys, steady anchor of the death penalty defense community at Capital Defense Weekly, has a gorgeous new baby boy.
10. Not all jurors are like you
It's hard to get outside our own worlds. If you have a golden retriever and kids who play soccer, you're likely to imagine your jurors have golden retrievers and kids who play soccer. Stop, think, expand.
Remember the Whitewater alternate juror who showed up every day in a Star Trek uniform until the judge kicked her off for talking to the press? If you're not into science fiction, you'd be amazed at how many people are. Volokh's Ilya Somin has a detailed and entertaining post on whether the Federation that governed much of Star Trek's universe was in fact very federal, and got a long string of commenters who clearly followed the discussion line for line. (One called it "the single-most geeky legal thread ever.") Meanwhile Quizlaw tells the story of a man who, when the police arrested him, claimed he was Darth Vader. And when Holden Oliver at What About Clients? writes "It's One Web Day--and big day for all you druids in Pittsburgh," don't think he's fully kidding. Druids get jury summonses like anybody else.
11. Some just want to get back to work
By their poorly concealed Blackberries you shall know them, the people who just want to get out of the courtroom and back to work. They're thinking about the complex projects they left behind, maybe a detailed post on the recording industry's efforts to limit traditional first sale rights (Frank Pasquale, writing this time at Madisonian.net), or the first significant effort to enforce the open-source GPL license (Tim Lee at TechDirt).
Don't blame these hard workers; envy them. If I were in the middle of a mammoth five-part overview of the Patent Reform Act of 2007 like the one that starts here at the PHOSITA blog, even I might skip jury duty.
12. Learn the publicity, whether it's national . . .
If your case has been in the news, you need to know exactly what jurors might have seen. There's nothing like blogs to learn the different ways someone might view your case -- and, since jurors often read blogs, the different voices that may still be ringing in their heads.
This week the Jena Six demonstrations were among the leading stories, and leading bloggers like Instapundit, Volokh's Orin Kerr, and Ann Althouse were frustrated at how hard it was to get the facts on what really happened in Jena. Libertarian Patterico at Patterico's Pontifications and liberal Jeralyn Merritt at TalkLeft both responded with long, multi-sourced posts, Patterico here and TalkLeft here. Meanwhile in a series of posts at The Volokh Consipiracy, guest bloggers K.C. Johnson and Stuart Taylor traced the roots of the Mike Nifong/Duke Lacrosse scandal. "It's like watching a train wreck in slow motion," wrote a contributor to this review.
13. . . . or local
Not all news is national. You need to know what's in the local paper as well. Milwaukee's Journal/Sentinel has its own law blog, a good one called Proof and Hearsay. If you had a trial here and read that blog, you'd know that the jury duty scam that has wandered the country for months has recently turned up here. In Boston, the story is the recent Bill Bellichick "Spygate" football scandal, which led Lisa Fairfax at The Conglomerate to consider individual versus collective liability.
14. They want the big picture
Studies show that jurors are thinking and talking about whether the parties are insured and what their legal fees are, even though those things aren't part of the evidence. Contingent-fee plaintiffs should think more about legal fees too, argue Drug and Device Law's Jim Beck and Mark Herrmann, since "typical engagement letters between counsel and product liability plaintiffs do not adequately disclose that a plaintiff may, after a loss at trial, be personally liable for tens of thousands of dollars in court-awarded costs."
15. If you're lucky, you'll have a juror artist
Here at Deliberations, we love juror artists -- the doodlers, the sketchers, the photographers, the dreamers. After all, this is the home of the American Gallery of Juror Art, the world's only (I think) showcase for art done by actual jurors while they were actually on jury duty.
David Giacalone might be a juror artist. His lovely blog is f/k/a, where he's been mixing law and haiku -- "breathless punditry & one-breath poetry" -- since 2003. This week, picking up on a post here, he looked at the coming re-introduction of the jury system to Japanese criminal courts. David wonders whether traditional Japanese attitudes toward authority and harmony will foil the goals of the jury reform movement, and the post weaves his thoughts, his sources, and the poems of Master Japanese haiku poet Kobayashi Issa.
16. Make a good impression
Jurors don't wake up in the morning full of admiration for lawyers. Barry Barnett of Blawgletter came back from a seminar this week and wrote: "Twenty-first century jurors start out seeing you not as a truth-telling seeker of justice but as a money-making manipulator of the justice system. You must convince them otherwise."
How do you do it? By showing some integrity, for one thing. "Teaching Ethics," at Professor Marc Randazza's The Legal Satyricon, can help there. To name just one particular, be thoughtful about how you've collected your evidence. In "High-Tech Divorce" at Trust Matters, Charles H. Green discusses how new technology lets us gather new information -- in ways that reflect very poorly on the gatherer.
Another way to make a good impression is to be organized. Evan Schaeffer at The Illinois Trial Practice Weblog is one of the best sources on that topic, including "Organizing Complicated Cases for Discovery" this week.
17. Remember the majesty
One last thing. When prospective jurors stand to take the oath, look up from your notes and remember what you're witnessing, what you're part of. Eric Turkewitz at New York Personal Injury Law Blogcaught the spirit when he wrote about the new jury-duty postage stamp:
Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country's liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.
If you liked any of this, please know that Deliberations welcomes new subscribers, either by E-mail (the form is at the top of the sidebar) or by RSS feed. Thanks to Blawg Review's wise anonymous Ed. for letting me do this and for 24/7 advice -- and to Colin Samuels at Infamy or Praise for submitting a ton of great posts. (Colin's own Blawg Reviews, #86 based on "The Divine Comedy" and #35 based on "The Inferno," are amazing.)
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(Photo by Bipin Gupta at http://www.flickr.com/photo_zoom.gne?id=776043570&size=s; license details there.)