By Dr. Ken Broda-Bahm:
Of all the areas of legal lore, perhaps none are more loaded down with mystique than jury selection. Attorneys with long experience will develop some pretty solid views, and those habits on who they’re looking to seat and who they’re looking to strike can create a baked-in preference independent of the case or the venue. For example, I’ve heard it confidently expressed by defense counsel that older conservative men are great, younger liberal women are terrible. As inevitable as the associations might be, they aren’t necessarily going to be valid or the best guide in every case.
In the alternative to basing selections on these broad habits, attorneys will often rely on their gut, operating from an implied belief that they can look into someone’s eyes and know their soul, or at least how they’ll react to the case and the client. Those impressions aren’t reliable either. But it is not just a choice of broad stereotypes on the one hand or tea leaves and astrology on the other. Jury selection should be seen as a rational and systematic process, and that process begins with a profile: a detailed roadmap on what features of potential jurors (experience, attitudes, and to a minor extent demographics) are most likely to help or hurt your case. The emphasis is on the latter, the unfavorable factors, since you are striking those you don’t want, not picking those you do. In this post, I am going to share a few thoughts on how and why to create a unique profile for every case.
Three Sources for Your Profile
A jury selection profile should be customized, and should address three unique factors: the climate, the case, and the venue.
The Climate
Larger national issues serve as a backdrop to your case, so assess where we are in the national conversation. This week’s upheavals in the Presidential race, for example, provide a good reminder that the climate matters, with both sides of the political spectrum seeming a little uneasy, being distrustful of powerful institutions, and seeking a return to some kind of safety. So it is worth taking a close look at what’s on the public’s mind – recent verdicts, issues, and controversies – when forming your profile.
The Case
You also need to take a clear-headed look at the unique weaknesses and strengths of your case. Starting with the question, “If we were to lose, how would we lose?” you can identify the views and experiences that would make a juror more susceptible to those weaknesses. You can also look at past cases that were similar, and ideally you should draw from your own case-specific research – focus groups, mock trials, community attitude surveys – in order to develop a customized and reliable risk profile.
The Venue
Where your case is being tried matters a great deal, of course. As I recently wrote regarding nuclear verdicts, there are well-documented factors to the venue that will influence jurors’ leanings on both liability and damages. While most Americans get their news from national rather than local sources these days, it still helps to conduct your mock trial in the venue and devote some attention and research to learning what is going on in the specific community. Even something as simple as talking to your cab and Uber drivers can help you get a feel for the venue.
Ultimately, your jury profile once developed should be a list of the facts that matter about a potential juror. It won’t be a guaranteed predictor of who is good and bad, but it will be a useful guide when thinking about risk and bias on your panel.
____________________
Other Posts on Voir Dire:
- Your Voir Dire Questions: Don’t Be Scared of Simple
- Don’t Rely on Luck in Picking Your Jury
- Fish for a Good Cause Challenge
____________________