August 2005
Volume 1, Number 4
Table of Contents

Inside The Juror's Mind
By Robert B. Hirschhorn, Lisa Blue, and Macy Jaggers

You can't really communicate with your jurors unless you understand them, and you can't fully understand each and every panel member by the end of voir dire. Each juror is a unique person with a unique set of life experiences, but jury selection is a common experience to which jurors have similar responses. This article will use psychodrama to help you better understand what it is like to be a juror.

For those unfamiliar with the term, "psychodrama" was developed in the early 1900s by therapist Jacob Moreno. At its most basic, psychodrama is role-playing. This psychological rechnique has been used by therapists to treat patients, by actors to prepare for movie roles, and by lawyers to succeed in trial. Psychodrama is useful to attorneys on many levels: it can help you better understand your clients, help your clients relate to the jurors, help the jurors identify with your clients, and help you get in touch with your own fears, among other things.

In this article, we are going to put you in the shoes of a juror. This peek inside a juror's mind should give you an idea of what's weighing on them as they sit through voir dire and how this affects their ability and willingness to participate in voir dire. Once we've walked you through this experience, we will give you some tips for making the jury selection process easier for jurors and more successful for you.

You, the Juror

You open your mail to find a document entitled Jury Summons. It tells you to report to the county criminal courts building at 123 Main St. on Feb. 20, 2005, at 8:45 a.m. The date jumps out because you have an important meeting scheduled with the bigwigs from the home office that day -- and it's the same day as your daughter's school play. Maybe you can get out of it. "Jury Service Is a Most Vital Function of Citizenship," it reads across the top. You stick the summons in your briefcase and decide to deal with it later.

It's Feb. 19, and you realize you're scheduled to be in court tomorrow morning. You dig out the jury summons and notice that you were supposed to have detached the bottom portion, filled out a short questionnaire, and mailed it to the court five days before your jury service date. Oops! Maybe you can call in sick. "Medical Excuses Require a Letter or Statement from Your Doctor," the summons tells you.

You go to your boss in a panic, and she tells you to report for duty. She's not worried, she explains, because she knows you won't get picked as long as you follow her instructions: sit quietly throughout jury selection, look at no one, and say nothing.

The next day, you head to the courthouse. You pull up at 8:30 a.m. with plenty of time to spare and notice a sign that reads " Civil Courts Building." Oops again. Maybe you should just blow it off. You glance at the summons for the address of the right court building and read, "Failure to Answer a Jury Summons Is a Contempt Action Punishable By a Fine of $100 to $1,000." You call your spouse to look up the court's address while you head in the general direction. Your spouse reminds you that your daughter's play is at 6 p.m.

You arrive at the courthouse late and rattled. Your boss has already called once to see if you're done yet. You follow the signs and the crowd to a central jury room where you watch a short video on the importance of jury service. "Serving on a jury is one of the most importance responsibilities of every American citizen," the video tells you. Your heart swells a little; maybe you should try to get on the jury?

A man in uniform herds you toward your assigned court, where you spend an hour waiting in the hall. The man to your right smells like it's about time for his monthly shower, the woman on the other side can't stop talking about how the police and prosecutors are the biggest crooks of them all (apparently, they put her innocent grandson in jail for being at the wrong place at the wrong time), and your boss has called two more times. Why in the world did they tell you to be at the courthouse at 8:45?

At 10:15, you're finally ushered into the courtroom. As you take your seat on the hard wooden bench, you look around the courtroom and try to identify the players. One woman looks too young be a lawyer but too respectable to be a defendant. You find out she's the prosecutor. You see a man who might be the defendant and you wonder what he did. You find out he's the defense attorney. "Same thing," you think.

The judge walks in and thanks you for your patience. She explains that the delay had nothing to do with this case but was caused by a short hearing on another case. After talking about the words "bias" and "prejudice," she tells you that she's resisting the urge to tell the joke about the time two Aggies went fishing. You smile because you know the punch line. Then she tells you that she's turning things over to the lawyers. Here we go ...

Stop the Madness

As an attorney, you can't take away all of the jurors' anxiety, but you can help them feel a whole lot more comfortable in the courtroom. First, address some of their logistical concerns. If they are distracted by questions like "How long will this trial last?" and "What is that woman over there doing?" they will not be able to hear what you are telling them. Deal with these issues early in voir dire. If the judge doesn't address logistical concerns with the jurors, you should feel free to. Also, introduce the people in the courtroom and briefly explain their roles. This helps the jurors feel more comfortable in their environment, but also shows the jurors that you are considerate and appreciate the work that all the individuals in the courtroom do. Remember, the first step to the jurors' liking your client is getting them to like you.

As you can see from our psychodrama exercise, much of the jurors' stress comes from things in their personal lives that are weighing on their minds: work, family, and finances are a few of the most common. You can't make those problems go away, but you can try to take their minds off them by drawing them into your case. If you don't pique the jurors' interest in your case immediately, you'll have a hard time getting them to listen to you at all. That's why it's important to prepare a power statement for your case. Your power statement should communicate your theory of the case. It should be easy to remember and easy to repeat -- almost like a bumper sticker.

Once you've grabbed the jurors' attention with your power statement, you want to warm them up to the idea of talking to you. Getting a stranger to talk openly in front of a group of strangers is no easy task. Start with a simple icebreaker like "Good morning." When no one responds (they usually don't), take a moment to explain that an important part of your job is hearing from them during voir dire. Then try again. This time, after you say "Good morning," make a gesture that encourages a response. This usually elicits a decent response and even a few nervous laughs.

Another good exercise is to ask everyone to raise their hands (or their cards if you're using them). This, too, is a good opportunity to explain how important it is that you hear from them. Never tell jurors that they may not be right for a case; instead, tell them that the case may not be right for them. Phrasing the explanation this way removes the burden from the jurors. It lets them know that it's okay if they say things that show they might be biased toward a party in the case. Constantly reaffirm this concept throughout voir dire by praising every negative answer you get. Once the jurors feel comfortable speaking out against your ideas, you'll be in a much better position to identify those that are adverse to your client -- even possibly securing strikes for cause.

Let's return to the power statement. You will use this statement to pique the jurors' interest in your case, but you will also use it throughout voir dire and trial. You should use voir dire to tell the story of your case. This story will be the unfolding of your power statement. Story-telling is an art, and most lawyers have to work at it to do it well. Rather than focusing on technicalities or complicated legal concepts when talking about your case in voir dire, simply tell the story of your client in a way the jurors can relate to. As your story unfolds, the jurors will get drawn into it. If it is compelling, they will forget about the other distractions that were on their minds when they arrived at the courthouse. Lawyers who are good storytellers help the jurors get to know their clients and like them. By the end of voir dire, the jurors should feel like they understand your position on the case and that it makes a lot of sense.

You're never going to understand fully every juror on a panel, no matter how much time you have or how talented you are. But you can certainly start with some basic assumptions. The courtroom is not their world, and they are not accustomed to being in court. They have issues in their own lives that are much more important to them than your case -- no matter how important your case. These factors and countless others combine to make juror service a nerve-wracking experience for many people. Empathizing with this stress and doing your best to minimize it goes a long way toward a more productive voir dire.

 

Copyright © 2005 by State Bar of Texas; Robert B. Hirschhorn, Lisa Blue, Macy Jaggers

Copr. (C) 2005 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.

ROBERT B. HIRSCHHORN is a jury and trial consultant who heads Cathy E. Bennett & Associates in Dallas.

LISA BLUE is a trial attorney and psychologist with Baron & Budd, P.C. in Dallas. Prior to joining the firm, she served as an assistant district attorney in Dallas.

MACY JAGGERS is a criminal defense attorney in Dallas who writes frequently for legal publications.

 

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