Jury Selection Voir Dire
What you are trying to do in jury selection is developing your discovery plan and your theory of the case. As part of the theory of the case, you want to develop a certain theme or a tag line that you can use to trigger certain responses from a jury. The theory of the case is a couple of sentences or a referred paragraph that explains why you believe your client should prevail. After I develop the theory of the case, I try to create a tagline. A tagline is a triggering event in a lawsuit. For example, in just about every lawsuit involving a business dispute, there is a certain relationship that is established between the parties. They may be partners or landlord and tenant; whatever it is, there is a certain expectation that this relationship is going to be beneficial to the parties. At some time during the course of the relationship, one party did something that caused the other party to think of them as a crook, which resulted in a lawsuit. This betrayal is the triggering event.
In one case, a nanny taking care of a young baby who had Colic, shook the baby and caused brain damage. The triggering event was when the nanny shook the baby. The theory of the case was clear; the nanny was negligent, but its tagline was: this didn’t have to happen. Once you repeat that tagline, the jury starts remembering it and they associate your case and the theory of your case with that one tagline.
It’s very important to establish a tagline very early on and you want to imprint that tagline throughout the entire trial. You start during the voir dire process. There was a time when I represented a construction contractor being sued by 36 former employees on wage and hour claims, claiming that he didn’t pay the proper wages and overtime. We fought a five-months long jury trial. The jury deliberated for 30 days and we won most of the claims. I became interested in how is it that the jury decides these cases. How do they process all that information over such a long period of time and actually rule on cases?
I purchased a book by Harvey Levine called Jury Selection. I found his theories on selecting a jury fascinating. There are several concepts in Greek philosophy pertaining to persuasive legal argument and they are the ethos, pathos, and logos, depending on the theory of the case. One of the things that you do during the voir dire process is looking for the dominant jurors. Attorneys sometimes refer to them as lions, versus lambs. When you watch the jury come in, you can see the people who are the more competent ones; the ones who seem like leaders. You want to be able to identify those people. You want to have at least one lion on your panel that believes in the theory of your case and is receptive to your position. You don’t need to care how many lambs are on your side because these lions basically corral the lambs and get them to think the same way that they think.
I’d be careful of having too many lions and you certainly don’t want a lion on your panel who is going to be opposed to your case. When you are going through the selection of jurors, there are different theories on how you can go about the process. There is one theory, by Harvey Levine, called the Schema theory. This is based on how jurors process evidence and information. It’s a filtering process. Jurors have pre-existing feelings, needs, attitudes, values, beliefs, and biases, developed by their life experiences.
For example, if you are involved in a medical malpractice case or a case against a pharmaceutical company, some people believe that pharmaceutical companies are evil. They believe that pharmaceutical companies, in conspiracy with doctors, have a cure for cancer, but they don’t want you to know about it because they are making too much money on cancer treatments. Some people are very skeptical of and don’t trust pharmaceutical companies or doctors. That’s their schema on that issue. Other people might believe that doctors are angels, that you’ve got to trust your doctor, and that whatever your doctor says is true because all they want is what’s good for you. They also believe that pharmaceutical companies are trying very hard to prevent people from being sick and that they are not just motivated by greed. People have very different opinions on these things. If you are litigating a case involving a pharmaceutical company, you want to find out whether each individual juror has any biases or prejudices in favor or against any of the parties. You have to find out what their schema is.
There is another thing that you have to consider when you are doing jury selection and it’s called representative heuristics. This is a shortcut that jurors sometimes take to right the evidence or revert it. They might view one attorney as being very competent, credible, and believable, and they might like that attorney. Maybe that juror is an elderly woman and the attorney might remind of her son. Because that particular juror likes the attorney, she might be inclined to voting for that attorney’s client’s case. It’s not necessarily based upon anything other than the fact that they are using a certain shortcut and they are basing it on the integrity of the lawyer, for example. They might be inclined to determine the case on how physically attractive one of the parties is. They might like a certain party. Someone might use a doctor who they’ve had a very good experience with and they can’t believe that any other doctor, including the defendant, would do anything wrong because they have strong feelings about their own doctor. These are other things that you need to consider during the voir dire process, which is when you have an opportunity to ask certain questions of the jurors during the jury selection process.
You can’t always find out that a prospective juror has a schema for or against your case. Most jurors are pretty neutral. If someone says that they had an experience with a general contractor and they don’t trust any general contractors, and you are representing a general contractor, you may want to try to eliminate that juror. Each attorney has what are called peremptory challenges that they can exercise. If you find someone that has this schema against your client and the person is a lion, you certainly want to get rid of that person.
Another thing you can resort to are personality characteristics of jurors. There are certain types of personalities. For example, there is a certain trait that can be either effective or cognitive. You might want to see if a certain juror shows an effective personality or a cognitive personality. A cognitive personality is someone who probably majored in business in college. You might ask certain questions in voir dire, such as which service they enjoyed in business. They might have jobs that require attention to detail. These are people who balance their checkbooks and make to do lists. They are intellectually controlled and they have limited empathetic capabilities, whereas effective traits are usually minority group members.
Effective personalities might have no college education or they majored in arts or humanities, as opposed to science. A lot of times, they have a deep devotion to religion or social justice. They are very empathetic; they might make to do lists that they don’t follow. They are artsy and creative types who are less disciplined. These are just generalities, obviously, but when you are making a decision on selection of a jury, you don’t have a lot of time. It is something to consider, depending on the type of case you have, whether you want someone who is going to be analyzing all the specifics or someone who works off of gut instincts and feelings, who is less concerned with the specifics.
Another personality aspect to consider would be authoritarian versus non-authoritarian personalities. An authoritarian personality is someone who has a high regard for authority. They might have been in the military or law enforcement. They have great esteem for the judge and they believe strongly that people have to follow rules. They can be antagonistic to people who are from a lower economic or social status. They are very obedient to morality and socially appropriate values. Sometimes, they are close-minded and engage in stereotypical thinking. They are politically conservative and tend to be rigid and formally dressed.
Other people may show up to court wearing flip flops, dressed shabbily, and not as concerned about their appearance in general. Those are people who may be not as much into authority. They may value free will and free thought. These are the types of things that you might want to consider, depending on the type of case that you have. If you are representing a party in a personal injury case and you want to appeal to how they were harmed and what happened to them, you may want someone who is more of a cognitive thinker and someone who is an anti-authoritarian figure. If you have someone who is engaged in fraud in a business situation, you are going to want an authoritarian; someone who believes in the rule of law and will be punitive towards people who are not playing by the rules or engaging in acts of unfair competition. You are really looking at three factors in each juror: whether they are predisposed to believe a certain way about a group of people, whether they’ve had any experiences where they can relate to any one of the parties in a favorable manner, and the personality traits that may apply to the type of case at hand.
Once you’ve figured out the triggering event and created a tagline, state it to prospective jurors. Ask if they have ever had a bad experience with someone that they trusted. If they say yes, you can say that the person who betrayed them is a crook, if that is the tagline in your case. You want them to personally relate to that tagline. This is something you want to do early on in voir dire and you want to also do it throughout the course of the trial.
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