Most of the legal talk about the Lori Drew case has been about the charges, not the jury. But the jury story that did come out this week reinforces a whole series of lessons about voir dire.
Didn't read the terms of service? "Absolutely you should be held liable"
Ms. Drew is the "MySpace mom" who harassed 13-year-old Megan Meier with a fake MySpace page. She may not have meant for Megan to commit suicide, but that's what happened. Ms. Drew was convicted last week of misdemeanor charges, but acquitted of felonies, and many question whether the charges against her will survive on appeal. The prosecution's theory was that Ms. Drew committed a crime when she violated MySpace's "terms of service" by setting up a fake profile. As Emily Bazelon wrote in Slate today, those terms of service, like most of what we all click yes to on the Internet, are "a long series of legalistic paragraphs that just about nobody really reads."
So when jury foreperson Valentina Kunasz told the press this week that she does always read Internet terms of service, and "If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable" and maybe go to prison if things turn out badly, it made Scott Greenfield mad at the whole jury system:
In this case, given its notoriety and attention, the effort to find fair-minded jurors, how did H. Dean Steward end up with the only person in the world who actually reads the terms of service? Worse still, one who has such a chip on their shoulder that they believe anyone who does not read the TOS is lazy and should go to prison for it? . . . [I]f jury selection, the process in all its art and science, fulfills its purported purpose, how could this have happened? Or is it all just voodoo?
Scott and I go back and forth on the whole is-it-voodoo thing, and he has made some strong points on the subject. But he has this one all wrong. It wasn't some unpredictable mystery of the jury system that let Valentina Kunasz slip onto the Drew jury panel. Her presence there was completely preventable.
One of three things happened here. Ms. Kunasz was asked whether she reads terms of service and she told the truth; she was asked and she lied; or she wasn't asked. If she told the truth, we don't have an issue, since that means the lawyers knew this fact and kept her anyway. If she lied, then the problem isn't jury selection. (I doubt that happened; presumably Wired would have reported it, as they reported much of the Drew voir dire in detail and also the Kunasz interview.) And if she wasn't asked, well, that's not the jury system's fault.
Six mistakes
I have no information to criticize either side's voir dire in the Drew case, and I wouldn't do it even if I knew more. This post is about the rest of us, not the Drew lawyers -- because the story brings to mind some of the ways a good lawyer could have failed to ask Ms. Kunasz if she was a terms-of-service reader and regretted it later. Here are six of them, mistakes lawyers make all the time:
1. They don't allow enough time to plan voir dire. Every Sunday night, this blog gets the same search hit over and over: "Sample voir dire questions."
It's clear what's going on. All over the country, trials are starting on Monday. The lawyers finally have everything else ready, and they are turning to voir dire. They'll put together a good list, maybe do a fine job, but if they'd started earlier, they would have done better.
The earlier you start, and the more different times you revisit the project, the better your voir dire questions will be. Each time you take a break and then return to your draft questions, you'll be amazed at the new questions that jump to your mind -- suddenly obvious, but somehow missed before.
2. They don't plan voir dire in a systematic way. If you try to plan voir dire by listing every question that comes to mind -- and many lawyers do it that way -- you'll end up with a lot of questions, and you'll miss a lot more. You need a system that will prompt you to think of what doesn't come to mind.
I've suggested some starting points for a systematic approach, here and here. However you shape your system, be sure it includes the elements of the crime (or the civil cause of action) and the defenses asserted. As to each element, whatever else you ask, you need to ask whether anybody has done that, or had it done to them. Somehow this is easier to remember when the case is about something most people haven't done, like shooting someone in self-defense. But if the case is about reading the terms of service, then that's what you ask about.
3. They don't ask about experiences. Lawyers too often jump to the punch line, asking jurors how they feel about the issues in the case. Depending on how good you are at it, this technique falls somewhere between incomplete and useless, mostly because jurors often aren't very good at understanding or describing their attitudes. Ask anyway, but ask also about what has happened to them, and about what they've done. Very often you can understand them better from there.
4. They don't ask for follow-up questions in judge-conducted voir dire. Lori Drew's trial was in federal court, and the stories I've seen refer only to questioning by Judge George Wu, not by the lawyers. Again, I don't know what happened; maybe the lawyers asked for follow-up questions and didn't get them, or maybe they got them, or maybe they didn't ask. But in general, it's remarkable how many lawyers write good voir dire questions for judges to ask in federal court, but neglect to ask for follow-up questions.
5. They get tangled up in paper questionnaires. The Drew jurors answered what sounds like an extensive written questionnaire. (I've looked for a copy and can't find it, even on PACER; if you have it and would share, please let me know.) Questionnaires are great, of course -- an effective way to ask questions that would be difficult to ask in person, and to take a little time to think about the answers. But when you have questionnaires, you need to be ready to handle the information they contain. Too often lawyers find themselves standing in front of the jury box leafing through an armload of paper. Sometimes that's unavoidable, but avoid it if you can.
6. They don't question young working-class women. Valentina Kunasz is a 25-year-old former hairdresser. If there's anyone in the world who's likely to be under-questioned in voir dire, that's the profile. Lawyers know they can't take all day on voir dire, so they often spend more time on jurors they think are likely to be leaders in the group: educated jurors, jurors who supervise others at work, jurors with more life experiences, and yes, male jurors. If a 25-year-old unemployed (I assume that's what "former" means) female hairdresser isn't volunteering, in many trials she wouldn't get to say much at all.
It's important to look for leaders in voir dire, and to try to understand them as fully as you can once you find them. But it's also important to suspend your preconceptions while you're looking, and to make sure everybody speaks. As Judge Gregory Mize has explained, the silent ones can surprise you.
________________________
Related posts here:
Update: Gideon, who has been following the legal issues in the Drew case, posts on the juror story here.
Cartoon by Roberto Zingales, [email protected] 2008)
