“Never forget, almost every case has been won or lost by the time the jury is sworn.” – Clarence Darrow

In these politically divisive times, does this quote from the great American trial attorney Clarence Darrow still ring true? Are lawyers, judges and consultants doing anything differently when it comes to selecting and seating a jury?

Carmen Caruso, of Carmen Caruso Law Firm in Chicago, poses these questions to panelists in the ABA webinar, “Jury Selection and Jury Argument in Divisive Cases in Our Divisive Times.”

Panelists include:

• Judge Robert M. Dow Jr., U.S. District Court for Northern Illinois and Chicago
• Eric Andrews, associate with McCoy Leavitt Laskey, in Waukesha, Wis.
• Laverne Morris, senior consultant for JuryThink LLC, a jury consulting firm in Chicago

Andrews says that Darrow’s statement still holds true in his experience as a defense lawyer, adding that juries from the same community often share the same biases. He recalls a case in an agricultural community involving an accident between a car and an agricultural sprayer, and when he asked prospective jurors if they had any connection to a farmer or farming, nearly 90 percent of jurors raised their hand. “I knew my case was doomed,” he says.

In our current political climate, Morris says she sees less communication among jurors. “People have stopped listening to each other, and instead talk at each other.” Jurors are exhausted by all the arguing. Empirical data shows they are “just giving up,” Morris says, adding that is why it’s important to research what’s driving jury decision-making.

Dow says Darrow’s comment is true today because 99 percent of his cases – both criminal and civil – never even get to a jury. “I have much greater respect for the jury system today than I had before I became a judge,” Dow says. “I think jurors work really hard to get it right.” He says one thing he has noticed is more skepticism of law enforcement among jurors in recent years.

The way lawyers prepare before a trial makes all the difference, Caruso says. Focus groups can be very beneficial, allowing lawyers to gain an understanding about how evidence might strike a jury, and give lawyers a sense of the pros and cons of their case. There are two types of focus groups: formal, which uses a moderator with some social science training; and informal, conducted by polling colleagues about the case.

Andrews says that in police misconduct cases he would informally present fact patterns to others in his office to gauge how people from different backgrounds might view the case. Caruso warns not to rely too heavily on what you learn from informal focus groups, as the overall goal is to learn what’s wrong with your case as opposed to what’s right. You must weigh such things as your budget, how experienced you are with the type of case and whether it could lead to a series of cases, which could increase the value of a focus group. Focus groups can be helpful to determine what’s driving the decision-making behavior of both sides, Morris says.

Jury consultants can also be useful at all stages of a trial, not just for jury selection, but are most helpful in mid-size to larger cases. “Jury consultants are able to tailor whatever services that your particular case needs,” Morris says, adding that there’s no governing body or accreditation for jury consultants. When interviewing potential consultants, Morris says that you should ask what training they’ve had and what their strengths are – social science, psychology or statistical data.

The jury questionnaire is often the first piece of information available to lawyers about the jury pool. Devise a questionnaire that elicits more than a yes or no answer and tells you about their day-to-day lives, Morris says. What do they like or dislike about their jobs? What do they do in their spare time?  Questions like these are most helpful because you can learn more about how potential jurors think, not just what they think. Another tip is to ask where they get their news, which can be revealing.

Voir dire is sometimes done by the judge with input from counsel, other times it’s done by counsel, depending on the venue. Dow says in racially sensitive cases, he’s careful to hear juror responses in sidebar, out of earshot of the rest of the jury pool. Morris says these days she’s seeing more questions during voir dire that are fear-based, or try to evoke anger. For example, if someone would “cut corners” by running a stop sign, Morris asks, might they also ignore safety rules while performing surgery?

During the jury selection process, the judge may consider allowing more peremptory challenges if lawyers ask for it and can state their reasons, such as cases with multiple defendants. When you’ve got only one preemptory challenge left, it can be tough to decide when to use it. “That’s a difficult scenario,” Andrews says. “You don’t want to use a strike that can come across as being race-based or gender-based. The key is to come up with a strategy early on and stick to that strategy that is race neutral or gender neutral.”

Group dynamics are an important consideration when choosing a jury. In divisive cases especially, the more reluctant jurors will often say afterward that they’re proud of their jury service, Dow says. Sometimes people are just trying to get out of jury duty during voir dire, Dow says, and it’s “usually obvious.” He says he gets a gut feeling about a potential juror’s credibility, and that their tone and body language usually reveals a lot.

In summary, Caruso says juries are somewhat similar to characters in a World War II movie. In the beginning, you never know who the “hero” will be, but someone on the jury always emerges as a leader.