July 25, 2016 Articles

Jury Selection: Three Strikes, You’re Out!

Studies have shown that trials are sometimes won and lost just through the opening statement. Here are some tips for presenting them effectively

by Stephen Skoller

Would you rather know which jurors reject your case—and why—after the fact or before?

Why retain a jury consultant (a.k.a. “jury picker”) before you are ready to pick a jury? Because you have no control over who shows up and only a limited number of strikes. Besides, certain types of jurors are never going to vote your way, no matter what you do. When they reject you, they will do so vehemently (and, if possible, punitively), and they may even take other jurors along for the ride. The only good jury is one that agrees with you, but to know which jurors are on your side requires waiting until the trial is over. Or does it?

You can reliably discover what types of jurors accept or reject your case (through jury profiling) and why they do (through trying your case to mock jurors) before the fact, while there’s still time to do something about it. When it comes to persuading jurors after the trial has begun, attorneys tend to rely too heavily on evidence that often fails to change minds that are already made up, minds that more often than not use evidence to bolster their entrenched opinions. Case in point: the consequences of a certain tight-fitting celebrity glove of a few years back.

A full understanding of juries comes neither from law school nor from knowledge of the law and legal procedures, nor even from vast litigation experience. Understanding juries also requires significant knowledge of psychology, personality theory, group dynamics, cognition, human decision making, perception, and properly designed research.

Some attorneys, however, dismiss the notion that you can predict what a jury will do, reasoning that “every jury is different” and “juries behave irrationally,” so why bother trying to gauge the unknown? In truth, the reasons and processes by which jurors reach their conclusions tend to remain the same from one jury to another. These processes follow patterns that can be determined through pretrial research. Trial teams can use the results of such research—at jury selection and in their case strategy—before the fact. While the behaviors of “bad” and “good” jurors are case-specific, they are also predictable through data that can be applied strategically to voir dire and jury selection.

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