Episode 22. Jury Selection

In this week's episode, Robert Sallander shares his strategies for jury selection- Or, as he puts it, "jury de-selection." 

Bob pulls from his recent experience presenting with the Santa Clara County Bar Association, where he got insight from several judges on when voir dire crosses the line into impermissible jury conditioning. He gives examples of questions that push the boundaries and discusses whether they're worth the risk.

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Transcript

Today, I'd like to return to a topic I've dealt with previously on Coverage Counsel

Is In: That's the question of jury selection or in my terminology juror deselection.

I touched on this topic back in episodes 11 and 12 I'm returning to it today

though because Last Tuesday, which was October 29th,

I was on a panel with four judges where we talked about this very issue,

and we talked about some of the things that I had said in the podcasts, and they

gave me some really interesting feedback, so I wanted to share that with you. So

first of all, let me start by reminding you that the purpose of jury selection or

voir dire is really not to select a jury, but to eliminate those jurors who you

think will be the most hostile to you. You want to try your case to people who

know you, trust you, like you, and want to find in your favor. So I have a

presentation that I've given to other lawyer organizations.

 I wanted to call it winning from the beginning, but that seems like

too strong a language, so these organizations like me to use the title "opening

strong." In my presentation, "opening strong," I talk about both jury selection,

voir dire, and I talk about opening statements, which I treat as opening arguments.

In the jury selection in voir dire, what you're trying to do is find out if

there's anybody that has a bias or life experience that's going to cause them to

look at facts in a way that does not favor your position in the case.

The foundation of this approach are two concepts of psychology.

The first one is that no one is neutral. Everyone has a bias,

whether they recognize it or not. And number two, people don't like to change their

opinions or their views.

As a trial lawyer, what we want to try to do is find those people or create those

people on the jury who are already looking to find the facts in a way that's

favorable to the position that we're asserting. The idea behind this is that the

jury gets to interpret the facts. You want them to interpret them your way,

not the way the opposing council wants them interpreted.

The idea is that they will look at the facts as supporting your position,

even if they're bad facts for you. We can talk about how to do that in the

presentation of evidence in another episode of Coverage Counsel is in. But for now,

what you're trying to do is get jurors who are at least not going to interpret the

facts in a way that favors your opponent's case.

One of the things that I suggested in the prior podcast was this is an opportunity

for you to present yourself and your client in the most favor favorable light.

But as a counterintuitive position you also want to bring out things that are bad

for your client and for your position. You want to start testing them.

This of course starts to approach this concept of juror preconditioning.

All of the judges on this panel agreed that Wadir was an inappropriate place for

juror preconditioning and that they were on the lookout for it. They also said that

they respect lawyers who push the envelope, they feel they're there to keep the

lawyer from going too far. So if your concern is that the judge may step in and

say you can't ask that question, don't worry about it. That's happened to me a few

times, I've still won the case, so it's not a problem from my point of view.

And also, when you have experienced that you find that the judge doesn't interrupt

in a really aggressive way there just might be something like counsel can you move

on or something like that where they're not really going to embarrass you in front

of the jury so or the prospective jurors. So just ask the questions and if you

find that you're going a little too far, reconstruct your questions,

reformulate them so you don't go too far. And that's why I wanted to talk about

this issue in in this podcast, because for the first time in my 40 years of law

practice, I had judges who would give me some kind of a test of when they thought

I was going too far so I wanted to share that example with you.

Here's the example. Imagine that you're handling an auto accident case in which you

represent the defendant who was in a restaurant drinking but there was no DUI

investigation.

You want to exclude non -drinkers and members of anti -alcohol groups and positively

predispose others to like your client. So what questions are you going to ask that

allow you to identify those potential jurors? To also put your client in the best

light while bringing out negative facts and not run afoul of the preconditioning

problem.

The first question when I put this hypothetical in the prior podcast was to ask

prospective jurors the following. Did you ever ride in a car after going to a

restaurant with a friend who had a drink or glass of wine with dinner and then

drove the vehicle. I read that question to the attendees of the seminar and then I

turned to the four judges and asked each one of them, "Is that going too far?

Do you find that question of a prospective juror improper?" the four judges all said

no. They thought that was a proper question. Here's some things I want you to

notice about that question before I go on to the follow -up questions that will

underscore when the judges start feeling that the question is too invasive or

improper and has the propensity to condition.

In the question, the only thing you're asking the prospective juror is did they ride

in a car with another person who had done some things? You're not asking the

prospective juror whether they had a drink with dinner. You're not asking them

whether they drove under the influence. You're just asking them a question about

whether they had ever had this kind of an experience. And the judges said that

asking them about their experience was fair game in voir dire.

So the question focuses on the perspective jurors' life's experience,

not their conduct toward driving or alcohol,

just whether they've had a life experience. Now the follow -up questions get a little

more direct into the conduct of the prospective jurors. So after you ask the

prospective juror if they ever rode in a car with someone who'd been drinking. The

next question, follow -up question, could be, "I take it that you thought it was

safe to be in the car." Now, that got mixed reaction from the judges.

Some of them thought that was inappropriate because it started to condition and

provide a judgment about whether it was safe or not safe. Other judges thought that

was fair game. So what this underscores is you got to know your judge.

Not all judges are alike and what's okay with one judge may not be allowed by

another judge. I would go ahead and ask the question if I didn't know and if the

judge said well Mr. Salander I think you're going a bit far. I just say I

apologize judge and Ladies and gentlemen, I don't mean to be invasive or embarrass

you in any way and So I withdraw that question The next follow -up question is

whether the prospective juror thought the driver was in control of his faculties Even

though he had consumed alcohol.

Unanimously the judges said no, that's too far.

The question is why is it too far? Because it doesn't really ask the person,

the perspective juror, about their own practices and activities.

But it does ask them to disclose their

Judgment and feelings toward another person who drives drunk and so while the judges

seemed to think this was not too invasive They started to think that it was hitting

the edge of conditioning This is a good place for me to pause and

I think there are some extremes and extreme might be something like if you're the

plaintiff's attorney you can see that my client is severely injured.

Do you feel that you can turn away an injured person without giving them

compensation? Now that would be conditioning because that appeals to their emotion and

it tends to commit them to try to commit

them to award damages and judges aren't going to allow that at all. But how is the

question, did you think the driver was in control of his faculties even though he

had consumed alcohol? How is that preconditioning? Well, I think for the judges that

wouldn't allow that question, the explanation was it's starting to say,

"My client consumed alcohol. Do you agree, though, that he was in control?" Because

that's getting an agreement to a fact that's in the case,

or that's going to be part of the jury deliberation. So that's why I think I got

mixed reaction from the judges. But like I said, some would allow it. Some said

they would not.

The next one was, did you get to your destination safely?

Again, that was mixed. The judges thought, well, is that Preconditioning it wasn't

really preconditioning. It's asking about a life's experience but Then the other

judges said yeah, but it's basically putting two questions together did you drives

with somebody who had consumed alcohol and Do you think it was safe and so?

They were a little more reticent to allow that question. Now I get to the last

follow -up question, and unanimously, and I think you'll see why, all four judges

said, "No, this question was going too far." So here it goes.

"I represent a man who is accused of driving under the influence of alcohol for

having the glass of wine at dinner and I'm afraid I can't get a fair jury.

Will the fact that the defendant drank wine at dinner cause you to disregard other

evidence about the accident such as plaintiff's conduct?

Unanimously the judges said no to that although I think it should be okay.

But I think it could be toned down. I think that the part about "I represent a

person who is accused and I'm afraid I can't get a fair trial." I don't know if

you really need that. I think they know, the prospective jurors know,

that you're trying to get a jury that can be fair. So I don't even think you need

that part, but I think that you can ask if you determine or if there is evidence

that the defendant drank wine at dinner, can you weigh that along with all of the

other evidence? When you start asking questions about, will that cause you to

disregard other evidence? They have the prerogative of disregarding evidence that they

don't believe. So instead of asking them to disregard evidence, if you use the

phrase, will you consider or will that prevent you from evaluating other evidence?

I think is fair and I think it's also fair to to tag that to the plaintiff's

conduct because you're going to be usually making a comparative or contributory

negligence argument. So I think that the last question was objectionable to the

judges just because it bordered on advocacy And I think you can ask the same

question and get the same information by toning the question down or maybe breaking

it into parts.

I really enjoyed being on the panel with these four judges and I gained some

insight and I hope I've shared it with you in a way that has been helpful.

What I would also say is how impressed I am with the Bar Association and the

bench, the Superior Court bench in Santa Clara County.

That's the county that encompasses Silicon Valley, so you can imagine the depth and

breadth of cases that they're dealing with. And I was just really pleased that

on a weeknight, a Tuesday night, which also happened to be Game 4 of the World

Series, but 45 lawyers and four judges were willing to get together to talk about

selecting juries and giving opening statements. It was a great program because after

the panel discussion in my presentation, which took about an hour.

The judges sat with small groups of attorneys for another two hours and worked with

them on crafting opening statements and one ear questions on a hypothetical set of

facts. So Santa Clara County Bar Association is not my home county,

but I really appreciate Having had the opportunity to speak there and to present

with them and to learn from the judges down there I have tried cases down in San

Jose. That's the county seat of Santa Clara County and It's just I was very

impressed and I wanted to give them a big shout out So thanks for listening to

coverage council is in this week As always, if you have any questions or suggestions

for topics, I'm happy to hear them. You can send them to questions @gpsllp .com,

or you can look for my LinkedIn page, Robert Salander, and ask questions there.

So until next time, thanks for listening.