May the Record Reflect
May the Record Reflect
64. Breaking the Ice: Voir Dire Tips and Tactics, with Judge Cynthia McCollum
As a sitting district court judge and 29-year public defender, NITA Program Director Judge Cynthia McCollum knows a thing or two about jury selection, and in this episode, she opens up about how to get your jurors to open up. She serves up a baker’s dozen of her best tips for getting jurors to talk during voir dire, mistakes she learned from as a public defender, what to know about Batson challenges, and anecdotes about her career trajectory before and on the bench.
Topics
3:50 First tip for getting jurors to open up during voir dire
4:47 Second tip
5:45 Judge’s first time in court as a new lawyer
9:48. Third tip
14:24 Fourth tip
18:33 Fifth tip
20:08 Being a public defender, then a judge
24:42 Sixth tip
26:39. Seventh tip
29:28 What it’s like to be a judge
31:48 Eighth tip
33:09 Ninth tip
38:25 Tenth tip
41:31 NITA involvement
45:06 Eleventh tip
48:35 Twelfth tip
50:32 Baker’s dozen tip about Batson
52:39 Signoff questions
Quote
“Everyone needs to work on their jury selection. It’s not a natural for a lot of people, because you get nervous about asking those tough questions.” Judge Cynthia McCollum
Resources
Judge Cynthia McCollum (bio)
Batson bonuses (file)
Minnesota Deposition Skills and Trial Skills (programs)
On today's episode of May the Record Reflect.
Cynthia McCollum:I'd been a lawyer a couple of years and I was up against a prosecutor who was very inexperienced. And I had just questioned a juror who had just talked about their struggles with employment. You know, he couldn't find a job. probably spent about five minutes talking about how hard it was for him looking for a job. I finished my questioning. And then the first question the prosecutor asked is, tell me where you work. And the whole jury hated that prosecutor after that because he wasn't listening. He wasn't following up. And he just had literally an outline in front of him. And he was just asking the questions on that outline. So listen to their answers and follow up.
Marsi Mangan:That was Judge Cynthia McCollum, and this is May the Record Reflect. Hello and welcome to the monthly podcast of the National Institute for Trial Advocacy. I'm your host, Marci Mangan, and in today's episode, here comes the judge, Minnesota First Judicial District Court Judge Cynthia McCollum, that is. Judge McCollum was appointed in 2014. Prior to taking the bench, she served in the office of the Hennepin County Public Defender, where she supervised serious felony and complex conflict cases. In her 28 years at the PD's office, Judge McCollum tried over 100 jury trials and worked on more than 45 homicide cases. On the teaching side, she is the program director of NITA's Deposition and Trial Skills programs in Minnesota and a longtime adjunct professor of law at Mitchell Hamlin School of Law in St. Paul. She teaches a variety of courses, including trial skills, advanced litigation skills, criminal procedure, and appellate advocacy, and has lectured on defense tactics, domestic violence, and jury selection at CLE presentations across the country. It is this latter topic, jury selection, that brings Judge McCollum to the podcast today. Here's our interview. So I want to welcome Judge Cynthia McCollum to the podcast. She is going to be presenting on jury deselection, which, if you're a longtime NITA fan, you may not remember some of this content from a presentation that she did for Nita earlier back in 2013 as a webcast. Now, Judge, at the time, I believe you were with the Hennepin County Public Defender's Office and maybe a year out from taking the bench in the first judicial district. Now, I know that laws change and rules change and jobs change and people change. But one thing that does not change is the core set of skills that makes you a great advocate. Now, that is timeless. And that's why we wanted to bring you back and have you present these great skills on jury deselection for a whole new audience. So welcome.
Cynthia McCollum:Thank you. Happy to be here.
Marsi Mangan:Yeah. So what is your first tip for getting jurors to open up during voir dire?
Cynthia McCollum:Well, the first thing that I had is building rapport. But before you think about building rapport, you're trying to think of ways to get jurors to tell you what they think. That is overall what all these tips are around. What do they think and how does it affect your voir dire? So your main thing is how do you connect with the jurors? How do you make them comfortable with the conversation? Otherwise, they're not going to self-disclose or share any of their specific beliefs, biases, or even secrets, which of course we all have. And you want to build trust. That's part of building the rapport. You want them to trust you so that when you ask them a question that might be difficult for them to answer in a courtroom, they feel comfortable doing it.
Marsi Mangan:Okay, great. So that probably leads right into the second tip, correct?
Cynthia McCollum:Yes. You really want to build an interest between you and the jurors. And you want to use a similar conversational style that you would when you're out at a cocktail party, out on a date, out just getting to know a coworker. You want to show that you're interested in what they have to say. You have to think about how do I talk to someone who I just met? The only difference is in voir dire, you're having to do this in a courtroom with a judge, opposing counsel, and 30 other people sometimes who are also going to be there voir dire. But you have to show that you are truly interested. And that leads in to other tips where I mentioned don't take notes.
Marsi Mangan:Okay well, we'll get to that later. All of the tips that you've shared today have come about the hard way through actual courtroom experience at the Public Defender's Office. So I thought that it would be interesting to intersperse your trial tips, these 12 tips, with little tidbits about your work background and how you became a judge, because I think I'm not alone in being really interested in hearing about judges from their perspective. So my first question on that point then is, what do you remember about the very first time you stepped into a courtroom as a new lawyer at the PD's office?
Cynthia McCollum:Well, I had my first jury trial, a felony jury trial after I'd been a lawyer four months. I was supposed to have my supervisor keeping track of me, but of course she was too busy doing her own cases. So as most other young public defenders, you're kind of on your own. And as I sat next to my client, I thought, all right, who goes first? What should I ask? What does the judge do? So I was trying to think back at what little I'd learned in law school and what I had learned watching other attorneys. But it was a little bit of a panic that first trial, but luckily I was in front of a very experienced judge and a fairly experienced prosecutor who both gave me a little bit of leeway in Wadir and throughout the trial, actually, on that particular case.
Marsi Mangan:Well, I read in your bio that you had placed third in a national mock trial competition when you were in law school. But so I'm sure that was good prep work. But still, you must have been really nervous to have something actually at stake for the first time.
Cynthia McCollum:Yes. And it was a case where my client was facing prison, which is why we were taking it to trial because they were only offering him prison. So we didn't have anything to lose by going to trial. But because he had such a long criminal history, I couldn't put him on the stand. So my case was really cross-examination and my rapport with the jury. It was convincing the jury through my charm and curiousness about the case that really was kind of my only hope because he was caught pretty red-handed with what was going on. But it did help that I had done a lot of mock trial work. And I always recommend that for law students because my partner at the time ended up going to the U.S. Attorney's Office and also becoming a judge and then becoming a federal magistrate. So we both knew we wanted to do trial work. And that experience that we had doing probably 15, 20 mock trials was invaluable.
Marsi Mangan:Yeah, it sounds like it. Was there anything that surprised you about being in the courtroom for the first time, something that you were expecting to turn out differently or feel differently?
Cynthia McCollum:I wasn't as nervous as I thought I would be. And I think that's just generally because I'm a bit of a ham and I like being the center of attention. And that was actually something I had to step away from a little bit once I went on the bench. I had to actually put little post-it notes on the bench, do not object, because I was so used to leaning in and objecting and commenting. Right. So that was a little bit of a change. But for me, it really was what I anticipated. I think it's because I had worked in the public defender's office for about eight months before I started as a lawyer. So I'd watched a lot of trials. I'd watched a lot of attorneys. And that's another bit of advice that I give to young law students or young lawyers to watch other lawyers.
Marsi Mangan:Yes, indeed. So feel free to be a ham here. You don't need to dial it back at all. Let's move on to your third tip. What have you got for us?
Cynthia McCollum:Active listening. So the reason I say this is because many lawyers sometimes zone out when it's not their turn. So when the opposing counsel is talking or the judge is talking, You need to listen to what the jurors are telling the judge. You need to listen to what the jurors are telling opposing counsel. You need to watch them once they come into the courtroom. You need to watch their body language, and you need to observe, particularly in how they respond to the judge in deciding what kind of questions you're going to ask them. Because there are usually a couple chatty Cathy's or chatty Chuck's in talking with the judge and group dynamics plays a big part in jury selection. So how one juror responds early on can really determine how the jury selection process unfolds once you start it.
Marsi Mangan:So it's more than just active listening, but it's also active watching. It's having situational awareness of everything that's going on in the courtroom.
Cynthia McCollum:Absolutely. And the jurors are going to be watching you. They're going to be watching your client. They're going to be watching the judge. And as I was told early on, before I was a judge, that all jurors love the judge, no matter who's on the bench. And I think that's true. In my 10 years I've been on the bench, I talk to a lot of jurors afterwards, and I get a different perspective from what they say. I'm able to ask them, so why was that provocative for you? Why did you rule this way? What did you think about this? And you learn what wasn't asked in jury selection that should have been asked. That's interesting.
Marsi Mangan:Why do you think that jurors like judges? Do you think that they are looking for somebody to kind of follow in this unfamiliar, perhaps uncomfortable situation that maybe they've never been in?
Cynthia McCollum:I think it's because we're the authority figure. You know, it's like being the teacher in a classroom. We're directing them. Now you go here. Now you go with my clerk. we're the ones who are keeping the lawyers in line. So they see us as just sort of being in charge. They also usually think the judge knows what's going on, that the judge knows the answer, that the judge has a position on the verdict, which sometimes I do, but not all the time. And I found that that's They like to talk to me after a verdict and really get some affirmation that they did the right thing. And as a judge, you have to be careful with that because the verdict's done. So I try to be fairly diplomatic about that. I
Marsi Mangan:thought it was interesting that you said that jurors will often tell you what questions were not asked.
Cynthia McCollum:They will. And jurors will also say... In fact, I just had a trial a couple months ago where one of the jurors who really, I mean, it was a plaintiff verdict, but it was a little bit lower than even my clerk and I thought it would be. And one of the jurors said, I was surprised that I was picked, given what I had said about my job and how I felt about the case. And I did agree with him because I was surprised that he wasn't struck from the defense perspective on that. And it was a car accident case, so it wasn't anything that had huge ramifications, except for that particular plaintiff and that particular defendant. But I thought it was interesting that he thought, why did they pick me? And that's always somewhat telling. because it means that they're a little uncomfortable with some of the questions or some of the answers that the lawyers are asking.
Marsi Mangan:So your fourth tip actually relates to questions, questions to ask the jurors. Do you want to talk about what that is, what your tips are there?
Cynthia McCollum:Yes. So you want to ask more straightforward questions at the beginning. You want to warm them up. You don't want to jump into sensitive issues. And you also, you do want to get to the difficult questions. I mean, you might want to ask questions on bias, race, violence in the case, or their own particular background, if they've had one with the criminal justice system or the civil system. But you need to... have them trust you so they give you an appropriate answer. So I have observed this with young lawyers on many occasions. And the example that I give in the PowerPoint is if it's an alcohol-related question, the first thing you should not say is, you know, who here goes to AA? You know, or you just don't want to put anyone on the spot or make them uncomfortable. because some of your questions probably will put them on the spot. I had a case and it was a fairly violent offense and they were gonna see some difficult photos and hear some video that was gonna be difficult. So during the panel discussion, I was asking jurors a little bit about their own sort of contacts with any sort of violence. You know, if they'd been in a bar fight or if they'd witnessed a fight or, and I really was trying to get at whether any of them had grown up in an abusive relationship, like an abusive parent. And that's a difficult thing to ask about because people don't want to talk about it in front of, you know, 25 other strangers. And so I tried to lead up to it in getting that information. And I think I was successful with most of the jurors, but it's an uncomfortable issue. And one of the jurors, probably about halfway through, this was maybe a two, three day jury selection. He was a psychologist. And I said, so what do you think of this process of asking questions of jurors? And he said, well, I'm not sure what I think about it. I think you're pretty good at it, but I also think it's hard to talk about a lot of these issues. And of course, it made me nervous that he said, I think you're pretty good at it, because I'm like, uh-oh. He's figuring out some of my little wily questions here. Yeah. But it is a matter of building up to it and building up to trust and rapport with the juror.
Marsi Mangan:What were some of the easy questions, the softball ones that you would lob their way to kind of warm them up?
Cynthia McCollum:You know, usually I'm just asking very basic questions that are similar that when you start a conversation with someone, tell me what you do for a job. Tell me about your spouse's job. Tell me what your adult children do. If they've got maybe a prior car accident or something, tell me about that prior car accident. So really, it's just the general information. It's always helpful to start with the general information first and then move on to specifics or drill down after they've talked for a little bit. And again, you want to focus on someone who wants to tell their story. And that's why you want to listen to some of the answers that the judge asks and because the judge will hopefully deal with some difficult issues. I know when I was a public defender, if I had a really tricky question on maybe a criminal sexual conduct case, I wanted the judge to ask the questions because it seems safer coming from the judge than as the attorney, I could do the follow-up.
Unknown:Sure.
Marsi Mangan:Okay, are you ready to move on to the fifth tip for getting jurors to open up to you?
Cynthia McCollum:I am because this one segues with everything I've already said. No notes. Take notes after the conversation. Maintain eye contact. Just like if you're at a dinner party and having a conversation with someone and you notice that their eyes are scanning the room, they're looking for someone else to talk to. they're not going to have your full attention because you can tell you don't have their full attention. And you do need to think about the gender and the age because some young jurors, and by young I mean under 30, may react differently to different questions because their style may be influenced by how we communicate today. We text, we email, we look things up online. And so I have found that sometimes younger jurors have a different conversational style or a different way of learning or giving information than older jurors do. And so you need to keep that in mind. And sometimes you have to tweak your questions a little bit to get the information that you need.
Marsi Mangan:Yeah, meet your jurors exactly where they are, it sounds like. Exactly. So your first job right out of law school, as I mentioned, was with the Hennepin County Public Defender's Office. Prior to taking the bench in 2014, you spent nearly 30 years in that office. Could you talk a little bit about the scope of your work in the PD's office?
Cynthia McCollum:So I, early on, probably the first 10 years I was a public defender, I did Juvenile court, adult felony, and adult misdemeanor. We also did paternity cases. So we even did depositions. And then we changed the structure in the office so that we had divisions. You know, some people just did juvenile, some people just did serious felony. And I became a supervisor probably about 15 years in. But after that, I was always on serious felony. The last three years I was in the office, I headed up the complex crime conflict unit. And so then I was primarily doing homicides, burglaries, serious robberies, drive-by shootings, crimes people commit with their friends, is what I would usually call it. And so, because it was usually co-defendants or conflicts or serious financial problems. transaction kind of crimes, identity theft, that sort of thing. So then I was doing kind of more complex cases. But I would say at one point I figured out that I handled over 45 homicide cases while I was in the office. I had many years of mainly when we were called Murderapolis. That was Minneapolis. But we had a lot of homicides. And I think there were several years I would have at least four to five open homicide cases. And so those cases obviously took a little more of your time, were more stressful. And when you did jury selection, sometimes it was sequestered voir dire. So we would talk to one juror at a time, depending upon the level of the crime. And I don't really mention that in my tips, but sometimes you're going to have a sequestered voir dire with crim sex cases as well. Because they say, statistics say that 30% of jurors have had some sort of encounter with Either someone close to them, they themselves were a victim with like a sexual assault situation. And jurors are going to be less likely to share that, obviously in an open courtroom with so many people. And so many times, I think I had about five, five or six cases where I did sequestered voir dire. And you did learn a lot more information about the jurors. So how did the opportunity to become a judge come about? Well, I'd always been somewhat interested in it. I mean, I taught a long time with NITA, but I also teach over at a local law school here in St. Paul, Minnesota, and have for, I think, 30 years, 35 years. That's Mitchell Hamlin. Yeah, Mitchell Hamlin. And in the course of that teaching, Again, I like the limelight. And so you kind of decide what kind of impact you can have on the system. And I will say, after being a defense attorney for a long time, I was intrigued by the opportunity to be on the bench and make decisions that would more directly impact someone's lives and the community. And so it was a combination of a lot of factors. I was ready to move on from being a defense attorney. And so being a judge is a little bit of a natural step. There are a lot of people in my office or the county attorney's office who frequently move to the bench as well because we're comfortable in trials. We're comfortable in the courtroom. We're comfortable with criminal law. And with my teaching, I had done a fair amount involving civil law. And I always was interested in expanding sort of my toe into the civil world. So a whole new growth
Marsi Mangan:opportunity. Yes. Well, let's get back to trial tips. What is tip number six for how to get jurors to talk
Cynthia McCollum:to you? So open-ended questions. So this is where I see attorneys struggle because They think that voir dire is an opportunity for them to talk, to explain what their case is about, and to get the jury's acquiescence on their theme or their theory. But the whole point of jury selection is to learn about the jurors. And if you're talking too much, you're not learning anything. You're telling them information, but you don't know how they're responding to that. So you want to start with open-ended questions. Tell me, explain, what do you think? And you need to consider who's going to be open to your questions. So this goes back to identifying the group dynamics and identifying jurors who are at least comfortable. So everyone has probably ridden a bus. And whenever you take a bus ride anywhere, whether it's just your commute home or maybe a four-hour bus ride, sometimes you sit next to someone who's going to tell you their life story no matter whether you want to hear it or not. So there's always at least one juror like that in most jury selection situations. And so you have to... Again, use those jurors to make other jurors feel like it's okay. Always use their full name. Always be respectful. Always have eye contact. And people will answer your questions. Okay.
Marsi Mangan:That's a good tip to use a really chatty juror to open up everybody else. Let's move on to tip number seven. What have you got for us?
Cynthia McCollum:No judgments. And this is also hard to do when you're a new attorney. The very first murder trial that I tried, we were doing jury selection with the panel. The judge had already asked him initial questions. And the first juror that I talked to I said, doesn't make a difference. I mean, I had done some preliminary questions, but I said, doesn't make a difference that my client is African-American who's sitting next to me. And this juror in front of probably 50 people, because it was a second degree murder. So we had a lot of jurors brought up, said, well, it doesn't make any difference because it's a murder case. But if it was welfare fraud, he would be guilty. And this juror said this in front of, as I say, God and everyone. And that was so outrageous that I think my initial response was to look to the judge. And it was an experienced judge. And the judge just said, we're going to excuse you. Have you go back to the jury room and see if there's another case they can put you on. But it's difficult because you get a lot of information that is sensitive. that it's surprising that jurors say it in front of so many people. And so you have to accept their information, keep a poker face. I was going to say, you need to have a good poker face. You do have to have a good poker face. And you have to consider why they're telling you that. Some people are very nervous during jury selection. Some people are not. Some people clam up. Some people... I'll say things that kind of don't make sense because they're so nervous. And so you just have to let them talk. It just goes back to listening. And you can usually learn something by virtue of what they say.
Marsi Mangan:Yeah. So don't say things that will shut them down in any way.
Cynthia McCollum:Exactly. Exactly. Because the last thing you want is for them not to really answer you but to answer that question during jury deliberations. You know, when that lawyer asked me if I'd ever been in a fight, I didn't want to tell her, but when I was in a fight, this is what happened. And this is why I don't think self-defense applies here. And so you need to ask those hard questions or those kind of what I call trickier questions, even if you get a bad answer and you just can't show any judgment to that answer.
Marsi Mangan:Okay, I've got another one of my little interlude questions. What do you wish lawyers knew about what it's like to be a judge?
Cynthia McCollum:That, you mean just in general, not with jury selection? Yes, in general, in general. That we're not idiots. Usually they get so repetitive and many times I'll have to stop the lawyers. I'm like, I've read your paper. I read your bullet points. Do not just read your memo to me. Argue. Argue what you have in your motion for summary judgment or for probable cause or lack of probable cause. And so they sometimes think they just have to make a long record or browbeat you with the information. And I'm like, have a little respect for the court. But lawyers get nervous about that. I know that.
Unknown:Sure.
Marsi Mangan:What do you think is the best thing about being a judge? a judge? a judge?
Cynthia McCollum:Well, they usually deal with you with a lot more respect than the respect I didn't always get as a public defender. And I enjoy actually the process and the job of being a judge much more than I thought I would. I was a little surprised that... I found it entertaining, I found it interesting, and I enjoyed working with the lawyers. So what is the hardest thing about being a judge? The hardest thing is dealing with people who are very mentally ill and who don't understand how their mental illness is interfering with their ability to really process what's happening. Or the people who are just very disrespectful. I haven't found very many people in contempt, but I have a couple times when they just start swearing at you. They're not listening. And those cases can be hard. And usually mental illness or drug use are behind that. And so it's helpful that my background with a lot of folks who struggle with drugs or struggle with mental illness, I understand it. But it still can be quite difficult.
Marsi Mangan:Yeah, I bet. Well, let's get back to trial tips. How about number eight?
Cynthia McCollum:So no legal jargon. Have a friendly tone. Again, it's a conversation, not a cross-examination. Again, consider the group dynamics. Because all of us, no matter what our background is, we all identify with jurors that are like us. Women attorneys will identify a little bit more with women jurors. Male attorneys will identify many times with male jurors. Gender and age. I mean, the same sort of situational characteristics that we all carry ourselves, we tend to identify with the jurors. You just feel like you understand them. And that can be an Achilles heel. Because that doesn't necessarily mean that juror is the best juror for your case. And that's a mistake that a lot of young lawyers make, including myself. You think, oh, I like this person. They're very similar to me. And they understand what I'm saying. They're following where I'm going. But that doesn't necessarily mean that they're best for your case.
Marsi Mangan:Okay. How about trial tip number nine?
Cynthia McCollum:Don't lecture. And this is where this can be difficult for lawyers because lawyers are looked upon as a source of information. And we're giving our clients information. We're giving the judge information. We're giving opposing counsel information. But if you try to dictate voir dire or dictate someone's opinion or their sort of their take on a situation, you can come across as a know-it-all. Because then the jurors are just gonna tune you out, or they're just gonna agree with you just to agree. And that can be difficult for the attorney, especially if you're being drawn into stereotypes, which we all have. We all have our own stereotypes, our own biases. When I was a young lawyer, I was told be careful of teachers, nurses, and sometimes engineers. And I was told nurses you have to be careful with because they're used to deferring to authority, the doctor, especially if there's surgery, nurse. And they're going to defer more to the prosecutor. They're going to see the prosecutor as more of an authoritarian figure or the judge than you. Same with, yeah, same with teachers and engineers. I do think they look at problems, which is a lot of times what jurors are doing. They're trying to solve a problem, solve a case, and they will many times have a technical assessment to it. But on some cases, you may want an engineer. You may want someone who's going to look at it from a very technical standpoint. So you need to think about what type of juror am I looking for? And that should be what guides you right from the start.
Marsi Mangan:So did you ever find where that kind of conventional wisdom that you mentioned about, you don't want a nurse because she defers to authority, did you ever find that that was more true or more false?
Cynthia McCollum:I would say stereotypes can get you into trouble. Because... And I'll tell you a story about a case I had. And it was trouble, actually, for the prosecutor on that particular case, but it was a little troublesome for me, too. So when I was discussing different, I think, police conduct in general and then specifically with that case, there was at least one juror who I could tell was a conspiracy theorist. It was just so obvious. I mean, he almost said it. And the prosecutor liked that particular juror, I could tell by how he was talking to him. And I thought, this young prosecutor does not realize that this is exactly what I'm looking for. And even the judge said after, after we did our strike, said, why did you keep that juror to the prosecutor? And he goes, oh, I liked him. You know, I thought we had a connection. But there was a different juror where I felt I had a connection. It was someone who was very clear and open about their alternative lifestyle, which many people are not. But they were also a very high-placed corporate businessman. So the background was a little unusual. And I can remember thinking, should I go with the corporate side or with the lifestyle style? And in the end, I kept that jerk. but he was the holdout for a case that was eventually an acquittal. And he was the holdout for about three or four hours. And I was, so I thought, well, I chose wrong. He's the corporate side, not the lifestyle side. So you didn't see it coming then? I didn't see it coming. And there were two other conspiracy theorists on the jury that kind of kept their opinions more low to the ground. And they were the ones who drove that particular trial. Sometimes you don't know how pivotal those people are going to be. Someone who you've thought, okay, I think they're a good jury for me, but you need to think about that. Who's going to be the leader here? Who are going to be the followers? Who are they going to listen to?
Marsi Mangan:So you've really got to dig deep and pay a lot of attention. And if you're defaulting kind of to the stereotype or what you have a bias for or against, then you're not going to learn what you need to learn about them. That's what
Cynthia McCollum:I'm hearing. Absolutely. Okay. Absolutely. And that really goes into my next one. Let them talk. Okay. Trial tip number 10. Let's hear it. Yep. Let them talk. Stop talking. Ask a question. Be careful if you feel a connection with a juror because that isn't always the end-all, be-all. And some people can't be persuaded. Some people are going to be set in their opinion, and they may or may not tell you that. But you do have to pay attention to how they react to you, but just don't be misled by how they react to you. I had a different case. a different homicide case. And I think we'd been in jury selection for about four days. So by the fourth day, you're just tired. You're kind of tired of it. Everyone's tired by that point. Everyone's tired. And this was probably the last juror we were going to seat. And I was questioning this juror. And I was not getting a great vibe from this guy. It didn't seem like he had any respect for me. He didn't have eye contact with me. He seemed a little dismissive. But I also thought, oh, you know, we're about to go into a whole different group. And I was nervous about some of the folks in the next group of six. And so I didn't question him probably as thoroughly as I should have. And it was also... a much older white gentleman, which sometimes those can be problem jurors for young African-American defendants. Sometimes, not always, but sometimes. And I should have pursued a little bit more of his possible biases, but I didn't. I was tired. I went to get it done with because we were almost at the end of the day. And that case was probably about a week and a half long trial. It was also an acquittal, which was the right thing in that particular situation. But I had a high school intern who had been working with me, and her high school project was to interview the jurors. And I said, I want to know what they thought about me, what they thought about the defendant, what they thought about the defense, and what they even thought about jury selection. And so when my young little 18-year-old high school student got to this individual and He issued a lot of profanities about me, my client, the whole process. And he said, oh, I thought he was guilty. I hated the defendant. I hated his lawyer. And I thought, note to self, I should have trusted my gut instincts and pursued some of those biases a little bit more during jury selection. But we let our own attention spans get in the way sometimes as well. That's interesting. Yeah,
Marsi Mangan:that's a good story. How did you become involved with NITA as a faculty member?
Cynthia McCollum:So I started out teaching at Mitchell Hamlin and John Sonstang, who was a longtime NITA presenter and was the program director before I was at the Minneapolis program. He was my mock trial coach. And so he was very involved in my legal education. And after I'd been a lawyer about five years, brought me in to help teach and then brought me into NITA. And he was the first one to recommend to NITA Nationals that they involve me. And once I started doing NITA Nationals, I met a lot more of the NITA faculty. And that involved, obviously, doing a lot more programs and getting to know some of the folks. I think I've met some amazing people at NITA. Amazing lawyers, amazing teachers. So it's been really a life-changing introduction for me. But it was through my law school professor. So did you go through NITA training yourself? I did. I went through NITA training myself. And I did some of that with John Sonsang. He did his own teacher training. And then we were William Mitchell. And I was involved as sort of a regular sort of faculty member. And then he brought me on as like the co-program director, probably for about seven or eight years before I became the program director. But I learned a lot, I will say at Nationals, when I was teaching at Nationals, because you see a lot of different styles. You know, you sort of get out of kind of your Midwestern way of dealing with trials and jurors. And so I was just fascinated. I did a jury selection mock workshop at Nationals one year with Bill Elward, who is another amazing media teacher. And he was the prosecutor. I was the defense attorney. And we did probably about a three-hour workshop. And that was really, I think, amazing for both the students as well as for Bill and I.
Marsi Mangan:Yeah, Bill is really fun. Are there ever times when you're on the bench and counsel is before you and you kind of suspect maybe they've had NITA training? Is that ever obvious?
Cynthia McCollum:Yes. Well, yes. Usually I can tell when they've had NITA training. And I've been a teacher for so long at the law school that I'm constantly seeing my former students. And so many of them will approach the bench and say, I had you for trial advocacy 10 years ago, and you told me this. Or I see people that I had in need
Speaker 00:of,
Cynthia McCollum:and I'll run into them later in other situations. They're like, I did your need a program 15 years ago, and they'll be at, say, Madison or somewhere else at a different firm. and I'll get involved as a faculty member. So those connections are always fabulous. Usually I notice when people haven't had NITA because then I have to have them approach the bench and say, you're not laying the foundation for this exhibit. You know, you need to do this and this. So usually it's the opposite. Usually I can tell if they've been to NITA or were one of my students. So fun.
Marsi Mangan:Okay. Well, we are getting close to the end. We're at Tip number 11, what is it?
Cynthia McCollum:Ask what you want answered. And this goes back to think about your tough questions. Think about the questions where you want information about whether they were a witness to something violent, if they were a victim of something violent. If they have strong opinions on guns, ask them about guns. You don't want to make this your first question, but you need to ask the tough questions. And I see this with young lawyers where they kind of dance around. And you just need to get the elephant in the room out there. One of the very first jury trials I had as a judge, I'd been on the bench a week. And there was a pretty standard jury selection, but it was the defense attorney's first trial, and he was up against a very experienced prosecutor. So it was a quick voir dire. I remember thinking, that was a quick voir dire. You should have asked more questions. But we get through openings, and then the first witness on the stand was the victim of sort of a drug scheme accident. I mean, there was a lot going on in this case. And the prosecutor asked the victim, how did you know the defendant? And the victim said, we met on a website called Adam to Adam. And I looked over at the jurors and this was a very rural jury. And there were at least two jurors that looked like they were going to walk out right then. And I thought, why is this coming up on the first question from the prosecutor? The defense attorney should have said, you're going to hear that there was a relationship going on between two men. One was the victim. One was the defendant. Is that going to make a difference in how you're going to look at this case or look at my client? I mean, all he had to do was ask that. And he would have gotten out some of that information. That was also the quickest verdict I've ever seen as a judge. They convicted this defendant about two hours. They also wanted to leave that building as fast as they could. It's the only juror in my 10 years as a judge where they didn't want to talk to me. And I was very sympathetic towards that defendant, gave him probation, let him out of jail. But I don't think he was judged as he should have been. by those jurors.
Marsi Mangan:So ask what you need to know. But as you said earlier, you've got to build that rapport first.
Cynthia McCollum:You've got to build that rapport. And this particular defense attorney now has been practicing for 10 years. I know he's gotten a lot better. He does a much better job. And in fact, his father was a public defender as well, who I knew. And I did make a suggestion to his father. I said, you know, Everyone needs to work on their jury selection. It's not a natural for a lot of people because you get nervous about asking those tough questions.
Marsi Mangan:Okay, well, we are at trial tip number 12. What have you got?
Cynthia McCollum:Follow up. Watch the nonverbal communication. Watch how they react to your questions. Watch how they react to the county attorney or the prosecutor or the plaintiff's attorney or the defense attorney's questions. Watch how they react to the judge's questions. Listen to their answers. Don't stick to an outline. So I think I'd been a lawyer a couple of years and I was up against a prosecutor who was very inexperienced. And I had just questioned a juror who had just talked about their struggles with employment. You know, he couldn't find a job, probably spent about five minutes talking about how hard it was for him looking for a job. I finished my questioning. And then the first question the prosecutor asked is, tell me where you were. And the whole jury hated that prosecutor after that. because he wasn't listening, he wasn't following up, and he just had literally an outline in front of him, and he was just asking the questions on that outline. So listen to their answers and follow up. Tell me about that. Why do you say that? You heard juror four mention that they feel strongly about the Second Amendment. Do you agree or disagree with that? Tell me why. So sometimes you'll even use other jurors answers to see if someone's looking kind of uncomfortable when that person is responding to follow up to see what they think about that.
Marsi Mangan:When we logged in and before we started the recording, you told me that you actually have a 13th trial tip that you wanted to add to this presentation. So we're going to make it a baker's dozen. What is your very final trial tip?
Cynthia McCollum:Well, I want you to know about Batson challenges and you need to understand if you need a Batson challenge, what the procedure is. And we're going to add that to the PowerPoint. And it's just a very simple kind of procedure, but your judge should insist that you follow through with that. And I'm not going to go into detail about that. And if you're interested in more information about Batson, I do have what is essentially a mini law review article that I've used myself in NITA that I've handed out that I know lawyers tell me years later, I still use that, that I'm happy to provide if folks want it. Oh, great. Yeah. It's just, it's just a simple kind of guideline to what you do with bats and challenges and some of the ideas. And we'll include that in the PowerPoint, um, Because it's more for criminal attorneys. But the main thing you want to remember with that, it's the juror's right to be on the jury. It's not the defendant's right to have a fair jury. It's not the state's right to have a fair jury. It's the juror's right to serve. And that's what the infringement is on.
Marsi Mangan:So you've mentioned the PowerPoint a couple of times, and I just wanted to let listeners know that you've provided all of this information in a PowerPoint. I'll save it as a PDF, and it'll include this last baker's dozen point about Batson, and you can find that link in the show notes so you can download and have a keeper for yourself. So we've reached the end of the interview. with our baker's dozen. And I want to thank you so much for providing these great tips on engaging with your jury pool to seat the jury that you are hoping to seat. I have just two last questions before we wrap up. They're my usual kind of softballs that are fun to answer, I hope. And the first one is, has there ever been a famous trial that you wish you could have been a part of, either as counsel or as the judge? And I ask that because you've been on both sides of the bench.
Cynthia McCollum:I have. The case I would have been interested in seeing from the perspective of a judge is Clarence Darrow's defense, State v. Leopold and Loeb. It was a 1924 case that involved two very wealthy, privileged young men who wanted to see if they could kill someone and did indeed. kill a young child. And Clarence Darrell saved them from the death penalty. They did get life in prison. But his closing argument is out there. And just Clarence Darrell was always sort of a big personality in kind of legal history. So I would have been interested to watch that.
Marsi Mangan:And I'm sorry, did you say that you wanted to be the judge or counsel?
Cynthia McCollum:I think I would have wanted to be the judge. I would have wanted to hear the arguments.
Marsi Mangan:Okay. So what interests you specifically about the case?
Cynthia McCollum:Just because Clarence Darrell had a reputation for being an amazing orator. And it was a very difficult case. And I believe both defendants had confessed. They had a lot of evidence. It was a really difficult case in that he convinced the jury not to sentence those young men to death is still somewhat amazing.
Marsi Mangan:Yeah, that's some mad skills. Final question. What have you been binge watching on TV lately?
Cynthia McCollum:So it's an older show. It's probably from about eight or nine years ago. I've been watching on, I think it's HBO Newsroom with Jeff Daniels. And it's somewhat amazing as to how relevant it is, even in today's world. It takes place in a newsroom and it deals with issues at the time. I think the show started maybe 08 or 09. I'm not quite sure, but it's very relevant to what was going on back then and I think even now. So that's what I've been watching about three or four episodes a night.
Marsi Mangan:Oh, great. All right. Well, we'll have to check that out. I don't think I've ever seen that one. Thank you very much for spending so much time with us. I know that you are busy. Everyone on the bench has all these extra judicial obligations, and you made time for Nita once again. So thank you very much, Judge.
Cynthia McCollum:Oh, you're welcome. It was my pleasure.
Marsi Mangan:As always, thank you so much for tuning in and subscribing. Do check the show notes for the article and PowerPoint slides that Judge McCollum referred to throughout the recording. They're combined in a single PDF that you can download. Also in the show notes is a link to the Deposition Skills and Trial Skills programs that Judge is leading in June in St. Paul, Minnesota. If you've been wanting to take a NEDA program but haven't yet had the chance, and you live somewhere that gets pretty swampy in June, why not come cool off in Minnesota for a week? Mid-70s, partly sunny, partly cloudy, a little rainy. It's not too bad. Be sure to tune in next month when I'll be interviewing another judge among our program directors, Judge Mark Drummond. He is the executive and judicial director of the Civil Jury Project at NYU School of Law, and he will be speaking with me about a little thing called an injunction. Until then, we at NITA wish you the very best of luck in your depositions, motions, and trials. Happy lawyering! May the Record Reflect is a NITA Studio 71 production. NITA. We are advocacy enhanced, mentorship reimagined. Welcome to the community.