Just as it is with jurors, a lawyer’s dress, grooming, demeanor, posture, and body language play significant parts in building a jury’s trust and confidence, and ultimately its acceptance. A lawyer should be himself or herself and stay within his or her personality, because a juror will quickly see through a false veneer. Sincerity and humility generally trump sarcasm, bullying, and overbearing. While there are exceptions (such as where a sense of humor can work to distract a jury from weaknesses in a case), lawyers who dress and act so as to appear approachable, friendly, and easy to talk to or relate to tend to achieve a level of trust better than more formal, sharply dressed, or ostentatious attorneys. First impressions are particularly important, and how one appears and acts in the early stages of a trial should be carefully considered. Another way some lawyers try to strengthen the relationship is by memorizing the jurors’ names and occupations. Referring to jurors by their names without referring to paper can be very impressive and shows that the attorney cares about each one of them as an individual.
Similarly, depersonalizing the other side, while maintaining a positive image, can limit opposing counsel’s ability to establish juror confidence. Avoid calling the opposing party by name. Do not argue with a juror (or opposing counsel) in front of the panel. Do not be apologetic. Instead, be natural and relaxed, keep your questions simple, let the jury rely on you, and have a specific and obvious reason for each question you ask. Take the wind out of your opponent’s sails by taking away your opponent’s thunder. Appear to be protecting your opponent’s rights, and know your opponent’s case. Always show tact. There is a difference between a personal attack and a fair request. First impressions tend to be lasting impressions, so you will want to avoid inconveniencing or embarrassing anyone. Do not ask deeply probing questions during voir dire unless they are clearly related to some objective in your case. You do not want to exhaust the panel.
Jurors do not appreciate being force-fed with a lawyer’s arguments, opinions, or beliefs. Doing so during voir dire is the worst possible time to make a first impression when counsel should be listening to the jurors talk about themselves. Equally offensive is interrupting a juror’s answer or suggesting what the answer should be. Asking a juror whether he or she agrees with you is imposing your opinion on the juror and is no guarantee that the answer is an honest one. Proselytizing, lecturing, or trying to persuade will build resentment at this stage. Equally insulting is the oft-used solicitation, “Can you promise me you will follow the court’s instruction?” Irrespective of the answer given, when a juror disagrees or feels the jury instruction is wrong, the juror is unlikely to follow it and will resent being asked.
Asking open-ended questions and “how do you feel about . . .” questions will enable you to learn about how individual jurors feel and identify those who should be excused. More importantly, showing concern for the jurors and that you care to listen to them builds trust and confidence by appearing to understand every opinion. Questions should be asked in a very open, non-suggestive way. Suggestive questions limit the juror’s answer and will produce little, if any, valuable information. Restrictive and tight questions are unlikely to reveal much about a juror’s true feelings.
Although juror perceptions of the attorneys are of continuing importance throughout a trial, laying a solid foundation for those perceptions and minimizing the opportunity for favorable impressions to change, attorneys must be cognizant of how they may be stereotyped and must work to overcome any negative perceptions. Jurors expect bias and subjectivity, and this may translate to distrust. Open and honest discussion about weaknesses in your case establishes credibility and shows jurors that such challenges do not pose an insurmountable obstacle for your side. In addition to taking the wind out of your opponent’s sails by preempting those challenges, appearing objective to jurors can discount any potential damage that your opposition attempts to inflict.
Similarly, it may produce juror confidence by avoiding making objections, even when the opposition has acted inappropriately. Jurors perceive objections as signs of weakness and worry, and even though a court may sustain the objection, the jurors may view its being made as an attempt to conceal important information, if not the truth. Thus, counsel should always weigh the risk of arousing suspicion against the benefit that an objection may provide. A relaxed and undisturbed demeanor builds juror trust and confidence. If an objection must be made, it should be done in such a way as to convey a reasonable basis for it. Although the court may not favor this, objecting on the basis that “the witness does not have personal knowledge,” “is making unfounded assumptions,” or “is guessing” may persuade jurors that you are not hiding facts, as opposed to objections that are not understood by a layperson, such as “lacks a predicate” or “calls for speculation.”
Being aggressive may not instill confidence. Rather, jurors may perceive subjectivity in overly strong advocacy. Jurors may not appreciate the depth of preparation and length of pretrial work that go into bringing a case to trial, and it is therefore advisable to temper strong positions you might take while building on your first impressions. Consequently, giving the appearance of being your client’s advocate irrespective of the evidence, or trying to draw the jurors to your conclusions during early stages of a trial, and particularly during voir dire, can have the counterproductive effect of imposing your views on the jury, when they want to be free to draw their own conclusions. Presenting the case in a matter-of-fact manner without emotion or argument can foster impressions of objectivity, diligence, and patience, and that you, as an attorney, want to develop the complete picture before taking positions and making conclusions.
It may be inevitable that a lawyer will disenfranchise some jurors or even insult them. It may have been neither intentional nor reasonably anticipated. The damage may be irreparable. That underscores why attention to presentation, personality, demeanor, honesty, and sincerity are critical components of jury selection and must be an important part of your pretrial preparation. Equally critical is analyzing and preparing for the types of prospective jurors you may have on your panel. Not understanding the jurors’ viewpoints can be fatal to your client’s case.
Many jurors come to service with preconceived ideas about lawyers and their clients. One would not expect to find many jurors who sympathize with banks, insurance companies, or wealthy people, for example. Jurors expect counsel to be hired guns and therefore willing to put forth whatever it takes on behalf of their client, whether it is true, partly true, or an outright falsehood. Jurors preconceive embellishment, excuses, or being misled, and suspect that counsel’s one-sided advocacy is his or her duty to the client. Jurors rarely respect an attorney’s duty as an officer of the court, and they look for validation of their perceptions in order to distrust counsel. If you concede facts or issues that are inevitable, incapable of being disputed, or inconsequential in the overall theme of your case, the jury will not expect but will appreciate your candor. Discussing your worst issues and admitting that your case or your client is not perfect, or that mistakes were made or things could have been handled differently, humanizes your client, allows jurors to relate to their life experiences, and builds confidence and trust. Take those aspects of your case that are most troublesome or that could be disturbing to a jury, and put them out front and take ownership for your client by admitting or conceding your client was human and reacted or overreacted, trusted or acted out of ignorance or fear, or is sorry or remorseful. This can be done without admitting wrongdoing or guilt, and may open the door for jurors who are otherwise not inclined to listen to a reasonable explanation.
The fact that things could have been handled another way does not mean that they must have been handled the other way. Just because a client overreacted to an incident and abruptly terminated an employee does not mean there was not ample reason to do so well before the straw that broke the camel’s back. Just because the builder used materials that were not specified in the contract documents does not mean he breached the contract when the materials were equal to those in the specifications. If someone was damaged, letting the jury see that the damages were considered and compensation will be made, if appropriate, will win you points. Not offering a defense damages number where appropriate disenfranchises jurors and weakens any trust or confidence that may have been built. Jurors are angered by a failure to admit an error and a lack of remorse. Among the alternative ways to achieve jury attention, admissions and apologies can go a long way. Emphasize the difference between perfect and reasonable conduct, and show transparency rather than avoidance. This will enable the jury to be comfortable, if not satisfied, with an issue your opposition intends to exploit.
Because jurors are individuals who have different life experiences, opinions, belief systems, and values, it is important to understand that a one-size-fits-all approach to presenting your case is unlikely to appeal to each of the jury panel. The jurors’ anticipation, and not necessarily their background, shapes their biases.
Jurors have a tendency to decide cases by comparing their own (highly subjective) expectations with the facts in the case and an unspoken standard of care as defined by those expectations. It is the jurors’ experiences that provide them with a sense of what is normal and expected, and that sets the standard by which they measure the conduct of the parties. Their previously formed opinions and predispositions will be the individualized filter through which each juror will interpret what he or she hears and sees at trial and will reach his or her decisions. And those experiences may very well create and influence juror expectations in the opposite direction. Because each juror processes information he or she receives through personal beliefs and experiences, jurors are more likely to accept positions that are consistent with their views and to reject those that are inconsistent. For instance, in employment cases, most jurors have been in the workforce and may have a prior disposition that large companies treat employees badly. Such jurors will tend to rely on the plaintiff’s position more than they will accept defense positions and testimony. By the same token, most jurors will not have been exposed to securities law or intellectual property issues. While they may have general perceptions including doubt about complex business transactions or the need to protect rights in property, it is unlikely they will bring to the deliberative process specific examples and experiences to support their attitudes.
A juror’s negative experiences may lower his or her standards or make the juror more forgiving. Such a juror may be less likely to find fault and less likely to be angered. Likewise, a positive prior experience may heighten the standard a juror will apply, and thus, the juror will expect more. A juror who was treated well is as likely to be harsh on a party who failed to rise to the same level of conduct as the juror received. However, counsel should be very careful where the juror’s negative experiences involve his or her client specifically. If the prospective juror was personally affected by your client’s product, not a competitor’s, you do not want this person on the jury.
In this way, voir dire is important to provide counsel with enough information about each juror to sufficiently cater to each of their needs in the presentation of testimony and evidence. Tailor your themes to your jury, using questions that communicate your trial themes through specific experiences the jurors have had. In striving to identify the one difference of opinion or experience that would make two jurors view your case in opposite ways, it is advisable to be prepared with separate trial themes, one for each of the opposing views a jury could form. By anticipating more than one possible point of view, counsel can design and convey different messages depending on the composition of the jury. It is similarly important to take into account ethnic, cultural, racial, and class differences in the language that counsel uses with prospective jurors and receives in response. Differences in culture and language may affect a juror’s ability to relate to your client and may influence, if not mislead, the listener (counsel and juror alike) to give different meaning to what was intended.
Voir dire should be planned to elicit each of the jurors’ differences, particularly where jurors fall on opposite sides of a position or an opinion. For instance, one area that commonly produces polarized jurors is circumstantial evidence. In a case that relies heavily on circumstantial evidence and witness accounts (and in which direct evidence is scarce), identify jurors who are dubious of “hearsay” evidence and, if possible, challenge for cause. A juror should be excused for cause if he or she admits that he or she could not accept as fact something a witness claims to have heard or seen without proof. During trial, counsel should understand that the jurors may have similar skepticisms about “hearsay” evidence and should tailor the case to highlight any direct evidence and present the more important facts through nonparty or unrelated witnesses who may tend to be perceived as more neutral.
Another area that tends to polarize jurors may be business practices and whether they are ethical in addition to being legal. In each of these instances, counsel may be faced with jurors who draw fine lines or those for whom the distinctions are blurred. Some jurors may be careful, while others are distrusting. Some jurors may adhere to rules, while others approach rules as having exceptions or requiring reasonable and practical interpretations. You may well have jurors on both sides of an issue and should adjust your presentation to the jurors you deem most likely to lead the others. While some jury panels may be more compassionate, forgiving, or accepting, and others more aggressive, assertive, or pro-competition, your conduct throughout trial has to consider the information provided in voir dire, and your case presentation must account for their differences and satisfy their needs. You are unlikely to sway a conservative jury to excuse unethical behavior even though it was legal, any more than you could sway a jury of businesspeople to be incensed by sharp but acceptable business practices.
In selecting jurors, counsel should ask questions to elicit their views on damages. Some jurors are naturally inclined to reject damages even when supported by the evidence. Others are more generous and willing to accept experts’ estimates or projections. Which jurors may compromise? Who will assume damages are exaggerated? People who are unfamiliar with and even uncomfortable with numbers tend to personalize events more than those who work with finance. A juror who is not comfortable with numbers may discount other causes or circumstances. Some jurors are hesitant to award damages solely on expert testimony. These jurors may evaluate the motives and credibility of the parties and tend to apply their personal experiences. Counsel want to determine whether jurors have formed opinions about people who are unable to work, the extent of disability, and their feelings about insurance and insurance claims. By asking jurors how they feel about people who make claims, or how insurance companies handle claims, in a non-suggestive manner, counsel can gain insight into a juror’s attitude toward damages.
Jurors may be skeptical of corporations and big business. Publicized wrongdoing by companies resulting in multimillion-dollar settlements, consent orders, bankruptcies, economic recession resulting from corporate abuses and extravagances, and incarceration of highly paid executive officers all foster distrust of such businesses and their executives. Jurors often opine that corporate officers will cover up wrongdoing, that companies conceal or destroy evidence to avoid liability, that profits come before doing the right thing, and that overpaid directors and officers lead to corruption. These are the filters through which some jurors will determine damages. In addition, it is almost unavoidable for a juror to engage in hindsight, using the end result to determine its cause without considering other possible reasons or the potential for a different outcome that may have happened. This will usually lead the juror to conclude that the person (or persons) with the most knowledge and control of the circumstances was responsible. Inversely, the person with the least ability to control the outcome or who lacked knowledge deserves to be compensated. As a result, counsel should endeavor to provoke juror thought on whether the knowledge or ability to control really existed and whether the actual control was material.
Counsel want to be concerned with a juror aligning with or distancing himself or herself from a party, absorbing facts and circumstances, and imagining that it could or could not have happened to the juror. This is dangerous as jurors are asked to render a judgment and may react viscerally or by instinct, by either building a wall as a defense mechanism or by identifying with a party who they picture could have been them. Clearly, counsel should look to exclude jurors who might identify with the opposing party or a significant adverse witness and should include jurors who may be similar to counsel’s client and main witnesses. The more time jurors focus on a particular party, the more likely it is not favorable to that party. This is because jurors are considering the knowledge and control that party had. It is therefore important to direct the jurors to focus on the conduct of the opposing party.
Almost routinely, lawyers and judges ask jurors to commit and promise not to be influenced by emotion or sympathy. Notwithstanding the uniformity of such promises from jurors, it is unrealistic to expect that they honor such commitments. Depending on the client, counsel must use jury selection to highlight the differences between a juror’s experiences and the opposing parties and must indirectly persuade the juror not to align with the opposition. Questions should be asked in a neutral, if not understated, way and should be intended to lead the juror to conclude he or she acted properly. Asking “what” the juror did and “why” the juror did so makes the juror reflect on his or her decision and how it differs from what the opposition did.
For example, to prevent jurors from relating to a school teacher who was terminated without cause because her private school employment agreement allowed for it, voir dire questions can be asked to persuade the jury that their refusing to sign such an agreement and require for-cause termination only was wise and that the teacher was the cause of her own termination by agreeing to the clause. “How many of you have an employment agreement that gives your employer total discretion over firing you?” “How many of you would never give that power to an employer and would require that there be a reason for being terminated?” “Why?”
For the same reason, counsel must use jury selection to highlight the similarities between a juror’s experiences and his or her client, and indirectly persuade the juror to align. Ask voir dire questions that force prospective jurors to confront the key similarities between themselves and your client. Here, counsel endeavors to have the juror stand in his or her client’s shoes and feel no differently than the client. This may require getting jurors to acknowledge they are human and make mistakes. You want to be clear and direct. Obviously, you cannot expect jurors to admit they aren’t always careful about the details or they do not always read everything they sign. But a good question to ask is “how many of you have signed an agreement, only to discover later that something was in there that you did not appreciate the first time, before you signed it?” The jurors can relate to this without admitting they are fallible.
Consider the weaknesses and disapproval your client’s case presents and get the potential jurors to relate to them so that they will not fault your side and will instead align themselves with you. Have the jurors realize that they are not always as perfect as they would like to believe. Only by helping your jurors to internalize your client’s questionable decisions can you deactivate your jurors’ instinct to blame and activate their ability to empathize. Jurors have a natural instinct to insulate themselves from feelings of danger and vulnerability. But they often will support litigants whom they can identify with and feel empathy toward. Preventing jurors from identifying with the opposing party cannot be emphasized. For this reason, it is futile to ask jurors to promise not to let sympathy influence their decisions. The predictable answer you force them to give is meaningless.
If you are on the other side, get the jurors to focus on the differences.
Are There Degrees of Judgment Based on Assumptions in the Selection Process?
Assuming that jurors will accept the evidence or follow the law as instructed by the court can prove dangerous. Nothing a jury does is arbitrary or incapable of counsel’s foresight— there is always an underlying rationale and psychology for the decisions that jurors make. Jurors are not beyond fashioning their own rules and creating “facts” from their assumptions about what the witness really meant, reading between the lines of testimony, or reading into what was left unsaid. To do this, jurors draw on their own experiences, their moral values, and their interpretation of justice. It is therefore important for counsel to consider juror perceptions and tailor the presentation of the case to provide the best opportunity to gain juror acceptance in line with the juror’s thinking and beliefs. Understanding the inferences a juror may draw irrespective of the actual evidence and law can be more instructive than accepting any “givens,” and it allows for a more complete presentation.
Such an analysis also requires a thorough evaluation of what the opposition’s case has that may appeal to the jury. Dismissing the other side’s evidence and theories is as potentially harmful as overplaying your case. This is often why it may be better to lose a mock trial than to win it. Learning your case’s weaknesses and your opponent’s strengths in preparing for trial provides the opportunity to avoid harmful consequences at trial and to present the best possible case that will appeal to the jury and allay any concerns jurors may have. Winning a mock trial provides a false sense of security and underscores a failure to properly prepare for contingencies, as well as what a jury may be disturbed by, or find that is unfavorable to your case, and why. There may be issues on which you want the jury to give you the benefit of the doubt and issues on which you want them to reject opposing counsel’s evidence at face value. By showing jurors that you weighed all the positions and not just your client’s, you promote the appearance of objectivity, reasonableness, and fairness—and thereby credibility. Not doing so can have the opposite effect.
Plaintiff’s counsel in a whistleblower case can quickly lose credibility by concentrating on the alleged retaliatory conduct but ignoring its temporal proximity to the plaintiff’s termination or ignoring the plaintiff’s poor work as being the cause for termination. Jurors in a fraudulent inducement case may easily see through defense counsel’s reliance on contract merger and zipper language when counsel does not address whether the allegedly fraudulent statements were in fact false, or justifiably relied on, or the cause of the plaintiff’s damage. Defense counsel—either civil or criminal—too often aggressively attack the prosecution for accusing the defendant, without explaining how the defendant put himself or herself in a position that left him or her exposed to being accused.
Understanding the lens through which potential jurors are likely to view your case is key to the jury selection process. Counsel must ask questions in a way that humanizes their clients and invites the potential jurors to identify with them and to reject the position advanced by the opposition. Managing the image one projects to the jury panel is an important way to gain an early advantage before the first piece of evidence is put on.