Wednesday, March 31, 2010

Trying a Case--Continued

Here on Bad Lawyer I've explored jury selection in the past.  But a little refresher may be in order.

There is all sorts of advice out there for selecting the perfect jury, and I will not insult those who have tried to reduce the process to a science.  My experience is that for the average case, judges have a low threshhold of tolerance for too much focus group tinkering.  So some general rules of the road apply.  Pick sensate and alert jurors.  If you are a plaintiff's lawyer avoid "bean counters:" accountants, engineers, financial types--since you know you are never going to be able to supply the degree of  evidence required to meet their attentuated sense of what is necessary proof for that professional class--when your burden of proof is only "preponderance of evidence."  I had some success one time leaving an accountant on a panel but I warned him in Voir Dire that I was taking a risk not seeking to excuse him, because my burden of proof was "preponderance of evidence,"  not absolute proof.   After the trial was over my accountant juror laughingly told me that he thought about the committment I made him make to follow the lesser standard of proof. 

Do not try your case during voir dire, but listen carefully to the answers the prospective jurors give in the preliminary Q & A with the judge.  If you ahve a problem with an aspect of your case, deal with it  up front during voir dire, your problem may not go away but you should be able to blunt the problem and enable the jurors to get beyond a difficulty that if less unaddressed could kill the case.  For instance you client may have a criminal record that will be used to impeach them, own it up front.  Mrs, Jones my client abused cocaine while she as a student at OurState college, and she was arrested for this crime and since then she has been clean and sober for 10 years.  Will knowlege of this fact make it impossible for you to render a verdict for her in this consumer case?  Make ther jurors commit to finding for your client on damages, and liability if the evidence supports a verdict for your client.  Make the jurors commit to a full award of damges! 

Be polite, but don't ingratiate, or kiss ass, prospective jurors see through that sort of thing.  Be respectful, you don't have permission to call them by their first name.  Earn their respect by your behavior through out the trial.  Make the effort to learn their names, by keeping a seating chart at the ready and speak to them by name.  Don't be informal or casual with your client or opposing counsel in front of the jury--although you should call your client by their first name. 

Above all in every thing you do, do not waste the jury's time.  If your opponent spends an inordinate amount of time in opening statement or closing argument, do not feel the need to match the verbal marathon.  Apologize for your brevity and ask the jurors not to hold it against your client that your arguments are statements and arguments to them are brief, but ask them to think about what your are saying and to remember what your client and the witnesses said because that truly is the important part of the trial. 

If you are nervous, let them know that you are nervous, if you mispeak or the judge admonishes you ask the jurors not to hold your nervousness or your error in court against the client.  They'll appreciate your humility, and if the evidence is there they enter a verdict for your client.  Above all remember you are not the case, you do not need to make a strong impression, in fact the best tried cases are the ones where afterwards where the jurors barely remember you, or anything you said.  Jurors remember the case, not he lawyers in the well-tried lawsuit. 

Above all remember do not overstate the evidence or over promise--deliver the evidence you say exists.  Do it humbly without getting caught up in emotional reactions to arguments made by your opponent, or rulings that don't go your way.  Listen, listen, listen to what is being said by the witnesses on the stand and try to ask the next question from the perspective of the juror--what does Mrs. Smith, juror number 4, need or wnat to know next?  Ask that question.  If the witness hems and haws, ask it again.  Ask questions respectfully, not argumentatively, do not go for the TV law drama a-ha, moment.  Those rarely happen and even more rarely work out the way you want them to.  Humble, and attentive beats dramatic and overwrought everytime. 

Finally, do not under any circumstance print out a prepared speech and read it to the jurors as your opening or closing statement.  Speak from you heart, about what you know the case to be about and what the evidence will be.  When you close, summarize what evidence you believe met the elements you had to prove, thank the jury and ask for a reasonable amount of damages, then sit down.  Do not roll your eyes or make expressions while your opposing counsel is speaking, listen to him attentively and watch the jurors' reactions.

Always be brief and polite.


  1. For what its worth, posts like these are fantastic. I know you are going through some tough times, BL, but I hope you also know that you have found a way to teach younger lawyers some of the perils of the practice through your site. Thanks for sharing. More posts like this (talking about some of the practical aspects of lawyering) would be greatly appreciated.

  2. Jordan--

    Thank you! You are very kind, you are right, I am going through pretty heavy weather right now.

    But I appreciate that you get something from what I am writing about.