Tuesday, September 22, 2009

Jury Selection Part B

Lawyers are required in Our State to obtain additional education and report at least twenty-four hours of this "continuing legal education or CLE" every two years to maintain the law license. I think most lawyers will concede that this requirement is all-in-all pretty smart; although, there are some pathetic examples of what passes for CLE out there.

Over the years I've attended some good classes, including valuable trial tactics classes. In my opinion trial tactics seminars are virtually worthless until you've tried something. I know, this is putting the cart before the horse, but how can you appreciate a "trial tactic" until you've tried a case? The best trial experience comes from sitting "second chair" to a good lawyer, and alot can be gleaned from watching lawyers try cases even without sitting at the trial table. Some of the greatest trial lawyers I've seen were the least obvious, the non-bombastic, quiet men and women, but thorough--the ones who knew how to connect with jurors and judges and lay out a narrative that made sense.

At first, trial work is all false start. There are so many formal vestiges of courtroom manners and traditions and more importantly there are the rules: civil, criminal, and evidence. After so many trials, even after a quarter century of preparing for trial, I move slowly and deliberately at the outset of a trial, not always certain that the trial, itself, is going to happen, and always uncertain about what the Judge is going to permit.

A trial begins when the jury is seated--beginning with the venire: the pool of prospective jurors and continuing with voir dire--he jury selection process. Voir dire is the trial attorneys only opportunity to talk to and hear back from prospective jurors and make a first impression. Voir dire is also the first opportunity you have as a lawyer to seed concepts and ideas that you hope the jurors will examine and contextualize as the evidence is introduced or arguments are made.

Now who do you pick? I like to say that I pick the first 8 (juries for civil lawsuits in Our State have 8 jurors)--sensate, persons. But the reality is that the court's provide you with a little upfront information about your prospective jurors--and, the actions of the other lawyer and Judge may push your choices. Plus, in my view the client should have input.

The standard of proof in nearly all civil lawsuits is what is "preponderance of evidence." this means for something to be proved, the juror must believe that something is more likely than not. In my opinion many lawyers screw the pooch by playing games in voir dire by focusing too much on the subject. If you are the person having to prove something aren't you instilling doubt when you tell a prospective juror that "I only have to prove something by the weight of a feather on evenly balanced scales?" I'd much rather tell the prospective jurors that I'm going to prove everything to you, but "bear in mind something is proved even if I can't bring in every possible eyewitness, every possible document or thing relating to the event--I can't recreate everything for you to see it as if for the first time--neither you nor the court have the time or resources to do that--and, that is why we have trials."

If I'm trying to prove something and I'm worried in any way about the quantity or the quality of my proof--I certainly don't want bean counters: accountants, engineers and empiricists on my jury. And yet, if you properly prepare a jury, you can get persons with precise attitudes to embrace uncertainty.

My experience tells me that once a Jury is seated, it's incredibly important not to waste their time, which overly repeating, or overly emphasizing points--does. Brevity, if done well is very persuasive. Making the connection with the jurors on the level of narrative common sense is the single most important arrow in sleeve of a trial attorney. In doing this so many lawyers reach for this ingratiating style that is repulsive and offensive--can you say Charles Binder!

Ok, here's my surprising jury selection story. I was picking a jury in a car accident case. the bailiff had given the lawyers a list of the prospective jurors, the venire, as the jurors walk in, I notice that one of the prospective jurors is a police officer that I represented in a seperate matter. Not only is this prospective juror a former client, he is also the "investigating" officer in the very car accident that we are in court about to try. I don't need to tell you, but Our Home Town is a very large city, so what's the chance this is going to happen? Now get this, this guy is actually too-stupid-to-live, a disability recognized here in Our Home Town as not a reason not to employ a person a police officer. So I figured when the Judge asked the automatic questions, like do you know any of the lawyers, the parties or anything about the case he would acknowledge these facts and be "excused." Not this guy, he sat staring blankly into space. But for asking the Judge at sidebar to disqualify this guy, he would have been seated as a juror in a case he investigated. Clueless.

No comments:

Post a Comment