It's not catchy, I'll admit. But it's the most useful technique I know in voir dire. And I should have included it in a post last week.
I wrote about the California Supreme Court's decision in The Oakland Raiders v. National Football League, and how it teaches yet again that lawyers who serve on juries are going to lead those juries. Scott Greenfield at Simple Justice responds, very fairly, with a question. "In my last trial, the full panel of 45 had more than a dozen lawyers," Scott says. (Yikes.) When you stand up to voir dire that group, what do you do?
Let's strike all the lawyers?
Scott states the problem starkly, and correctly:
[B]y allowing a lawyer on my jury, I must presume that I am entrusting my client's fate to one person, who will then bring the others around to his point of view regardless of whether that's his intention.
"But that's the easy part, recognizing the problem," he continues. "The hard part is trying to figure out whether the lawyer is with me or against me." He first considers the Shakespearean strike 'em all approach, but admits that with such a lawyer-heavy panel you may not have enough peremptory challenges to eject them all, much less deal with the nonlawyers you'd like to strike. And when you question them, Scott says, they'll either expertly eject themselves, or "they are going to look like the most reasonable people on earth, free of any prejudice and 110% interested in pristine justice." (That's true. People often don't articulate their biases or even their attitudes in jury selection -- partly because they don't know they have biases and partly because it seems uncomfortable or inappropriate to talk freely about them in court.)
"So we resort to our own obvious lawyer prejudices in deciding who is the most evil lawyer on the panel," Scott concludes, but stereotypes aren't helpful either. "Any ideas?" he asks.
Experiences and behaviors
I do have ideas -- ideas I hope are helpful not just with lawyer jurors but with any potential juror, especially one who will clearly be a leader on the panel. When questions about biases and attitudes run dry, as they quickly will, you don't need to resort to stereotypes. There are two other, powerful, ways to learn about jurors' attitudes: Ask about experiences, and ask about behaviors.
1. Ask about experiences. You have attitudes. Where did they come from? They came from your experiences, from what has happened to you and what you have seen. Jurors are the same.
Our experiences shape our attitudes. Studies show it all the time. Clinical instructors in radiation therapy show more positive attitudes toward their students' evaluations if they themselves had good experiences as students. People who have been "exposed to prison," either because they've been incarcerated or they know someone who has, have less confidence in and support for social controls than do people who have been spared that experience. "People who have a close gay friend or family member are more likely to support gay marriage and they are also significantly less likely to favor allowing schools to fire gay teachers than are those with little or no personal contact with gays," a May 2007 Pew Research Center survey found.
So let's say I was on your jury panel, and you knew I'd been with the same large-ish Midwestern corporate law firm for 26 years. If you're a criminal defense lawyer, or a plaintiff's lawyer in a civil case, you could go ahead and reserve a peremptory strike for me, or you could ask more about my life -- in which case you'd learn that I'm married to a public defender and that through various friends and connections over the years I've had a good look at mental health issues, addiction, and the criminal justice system. If you asked me about civil topics, you'd learn that I've almost never made any kind of claim, and I've probably skipped lots of chances to get refunds, tax credits, and such. I've represented corporate defendants against some truly manipulative abuses of the justice system; but I've represented plaintiffs too, and co-tried a case that ended in one of the largest local verdicts a few years ago.
Do you strike me? That depends on your case and who's sitting next to me, but at least you have a sense of what you're getting.
When I work with lawyers to get ready for voir dire, we spend most of our time brainstorming experiences, listing what could possibly have happened to a juror that might resonate with the case we're working on. I've written more about that process here.
2. Ask what experiences mean. Experiences shape attitudes, but don't assume you know how they shape them. Say your panel includes a clean-cut white lawyer, male, late 30s, married, and when you ask about his experiences, you learn that his dad worked for the CIA. Don't strike him yet. He's Mark Bennett, the Houston criminal defense lawyer (and terrific blogger), and his e-mail address today ends in fightthefeds.com.
Our experiences affect us differently. Some people who lost loved ones on 9/11 emerged with hatred for all Muslims; others found themselves driven to better understand them. Some families of murder victims become fervent death penalty advocates; others become just as fervent in their opposition to the death penalty. When you learn that a juror's experience will be important to your case, then, your next question is what it means. What did he take away from that? What kind of meaning does he find in that experience? What does that experience mean to him now? You're on very personal ground here, so be respectful, but ask.
3. Ask about behaviors. The other way we display our attitudes is in the way we act. If you ask potential jurors how they feel about immigrants or companies with foreign ownership, you may get bland answers. If you ask which jurors make an effort to buy only American-made products, or if your bumper-sticker question turns up one that says "Build The Wall," you'll have learned something. Jurors who think of themselves as completely open on race issues may drive miles to avoid going through black neighborhoods.
Again, this comes from brainstorming. Make a list of all the ways that jurors might act out their perspective on your case -- donations, letters to the editor, radio call-ins, ribbons around their trees, year-round flag displays, and yes, bumper stickers -- and then ask about them, as much as you can.
Tomorrow I'll add some thoughts about techniques when lawyers end up sitting on the jury.
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Notes:
- Other posts here on the importance of asking about experiences in voir dire include A Helpful Way To Think About Race and Tears, Pain, And History In The James Seale Voir Dire.
- Is Mark Bennett "the best new legal blogger of 2007"? I'd never argue with Capital Defense Weekly, especially when it's giving out well-deserved praise.
(Photo by ClatieK at http://www.flickr.com/photos/clatiek/462222145/; license details there.)
