By Rich Matthews

“Well, Counsel, that’s why the Good Lord gave you a few peremptory challenges.”

– An actual judge at sidebar, denying a righteous cause challenge

In August, the Arizona Supreme Court eliminated peremptory challenges in jury selection for both criminal and civil cases. The court explained, following long study and abundant input, that peremptory challenges were subject to abuse by trial counsel, and concluded that eliminating them would produce fairer juries and less race-based decision-making by jurors. I would only add that abolishing them will reduce race-based decisions about jurors by counsel.

I agree with abolishing peremptory challenges as a means of getting fairer and less biased juries, but not for the reasons anyone seems to be discussing.

The primary reason given by those who would abolish peremptory challenges is that lawyers abuse them, exercising them for improper reasons like perceived race, perceived sexual orientation, gender, and other immutable characteristics. That happens. It’s shameful. It’s unethical and unlawful. And still it happens. Batson vs. Kentucky turns 35 years old this year, yet in all that time has not erased lawyers’ abuse of peremptory challenges. They say that the only way to end the abuse of peremptory challenges is to end peremptory challenges. I agree.

Yet, I maintain that the benefits don’t just stop at reducing racial gamesmanship by counsel in jury selection . . . and in fact will produce fairer juries by finally letting us get real about cause challenges on attitudes and life experiences of prospective jurors. But let’s back up a second.

It’s predictable and unfortunate that the majority of attorneys quoted in the coverage I’ve seen – along with trial consultants who appear to think their main value is advising attorneys which jurors to kick via peremptory – oppose getting rid of them. I submit that this is largely a fear-based response, an innate reaction to A Change In How We’ve Always Done It. Look, folks, it just doesn’t work to answer “How do we reduce bias in jury selection and in juries themselves,” by saying “Keep doing exactly what we’ve always done.”

Try this thought experiment right now, please: What good do peremptory challenges do? Why keep them? Not rhetorical questions. Take a moment.

More than likely, you thought something like “safety valve” or “backstop.” Fair enough. But it’s time to stop seeing peremptory challenges as a “safety valve” or a “backstop” without asking ourselves the crucial follow-up question: Wait – safety from what, exactly? We’ve become so accustomed to peremptory challenges that we stopped asking why we need them if we have statutory and caselaw definitions of bias in prospective jurors, kickable by cause challenges.

And the answer to what we need safety from is: bad decisions by judges on cause challenges. Peremptory challenges (supposedly) give us a recourse against bad rulings on cause challenges. Because let’s be clear: If judges granted cause challenges according to the statutes and caselaw, we would never need a peremptory challenge.

But judges don’t always – or even often – grant cause challenges when a party has established “The existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Cal. Code of Civil Procedure, Sec. 225(b)(1)(c), emphasis added. Other states’ statutory definitions of bias are substantially similar.)

And why don’t judges grant cause challenges when we’ve established that this person is not entirely impartial? You’ve all heard it hundreds of times: “Well, counsel, you still have some peremptories left. You’ll have to use one.” While lawyers are using peremptories as a backstop, judges are using your peremptories as their backstop, too. And that is the heart of what is wrong with peremptory challenges in practice, not theory: They mostly function as an excuse for judges to avoid granting cause challenges.

I submit that they are hurting our chances of getting rid of bad jurors more than they are helping us.

And why do judges want to avoid granting cause challenges with a standard as strong as the statutes say?  For the same reason they innately avoid any ruling they can avoid: fewer opportunities for reversal. Judges live in fear of that. No judge wants to be the “Reversal Ralph” or “Remanded Rebecca” of their courthouse. And they do notice these things. So do the judge reviews on the website The Robing Room.

Which brings us to what I believe will be the mechanism that will finally prompt judges to grant righteous cause challenges rather than punting – fear of reversal. In the post-peremptory world, denials of cause challenges in which a venireperson is on the record as not entirely impartial should be appealed. In short order, one hopes, there will be a shift in the legal culture, a nudge to trial judges to rule closer to the statutes.

And there’s good news on the appellate front, too.  Appellate courts also use peremptory challenges as their crutch, as their excuse for punting. “Oh, you didn’t use all your peremptories? Then you can’t appeal jury selection issues.” In the absence of peremptories, appellate courts will have to abandon this extra-legal and inappropriate threshold question, and look closer at jury selection issues that run away from the statutes. Trial judges will get the point.

Somewhere along the way, outside the statute books and inside the courtrooms, the evaluation of juror bias got reversed. The written rule is jurors must have “entire impartiality,” but the de facto standard has long been “Anything less than confessed, admitted bias is acceptable if the citizen will nod in the direction of trying to remain fairandimpartial.” Judges look for any glimmer of an example of non-bias to avoid excusing a prospective juror. They even invented a fictional thing that we all have tacitly agreed to call “rehabilitation.” Notably, “rehabilitation” does not appear anywhere in the jury selection statutes.

“Rehabilitation” of a citizen’s mindset is a bad joke for at least two reasons. One is that a citizen holding a particular opinion about some issue is not a flaw or defect or malfunction. So the concept of a court rehabilitating an opinion should be repugnant. Rather, that opinion renders that person unsuitable as a juror for this case, but it’s not an injury to be repaired on the fly. Thank and excuse them, and let’s move on. Like the statute says.

Which brings us to the second reason “rehabilitation” is nonsense: It doesn’t work. Adults don’t suddenly change their mind when asked to by the person wearing a black robe and sitting on the highest piece of furniture in the room. (It ain’t for nothing that the law courts retained the ecclesiastical costume and set design when they split off from the church.) Instead, “rehabilitation” is the practice of rehearsed professionals leading mostly newbie laypersons through some leading questions to get to the magic words –

“Nevertheless, Ma’am, you could put all that aside and stay fairandimpartial in this trial, couldn’t you?”

“Um. I mean. I guess.”


Let’s be honest: that’s usually enough to lose a cause challenge. Yes, the magic words were spoken. No, the mind was not changed.

Imagine how much easier it would be to just excuse a prospective juror when there are real questions about his or her entire impartiality. Indeed, if judges would follow the statutory standards for bias and excuse prospective jurors when doubt is raised, rather than after several minutes of (not) rehabilitation by bench and counsel, jury selection would go faster— a pretty significant fetish for judges.

And there is one more consideration about peremptories and the elimination of bias both in juries and about juries:  Peremptory challenges might have been originally designed on the theory of helping counsel eliminate jurors with biases . . . but in reality, the reverse is true: They mostly serve counsel’s own biases. How many prosecutors have reflexively sought to rid jury boxes of people of color when the criminal defendant is also of color? How many civil litigants have sought to eject people of certain ethnicities because they are thought to be less (or more) generous with damages? This garbage – and it is garbage – has been taught in CLEs in this century.

The peremptory system just doesn’t work. We’ve tried fixing it. Batson tried. States have built on and extended beyond Batson. The California Supreme Court, for example, has made significant efforts to thwart the game of “give race-neutral justification after exercising a secretly race-conscious peremptory,” including shifting burdens of proof and reversing presumptions. Still the abuse continues. The only way to get rid of lawyers misusing peremptories is either to get rid of lawyers or get rid of peremptories. Getting rid of peremptories is the right first choice.

And now let’s see how judges rule on questions of real juror bias when they, lawyers, and appellate courts all lose the crutches.

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How Lawyers Can Benefit From Trial Consulting – ‘Law Practice Today’ (ABA)

Enjoy this article from the current Law Practice Today, an ABA publication. In it, three other trial consultants and I are interviewed about how trial consulting can benefit lawyers and, of course, their clients; and separating myth from reality about what trial consulting actually delivers.

And, as always, feel free to contact me to discuss it further.

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Podcast: ‘Bull’ persists; so do we. Episode 2

Click here for podcast.

CBS persists in airing ‘Bull,’ giving us episode 2 on 9/27/16, “The Woman in 8D.”  Alleged trial consultant Dr. Bull’s crime spree continues unabated, along with the ridiculous nonsense that mostly comprises this show. As ever, fiction is great; outright falsehood is not. And in a year in which the American public is being told that its institutions are rigged – government, financial markets, the media, elections – it is harmful that the public is now also being told that its justice system is rigged. Rigged by a smarmy, cocky, godlike consultant who single-handedly somehow has the power to empanel any jury he wants to achieve any outcome he wants, committing crimes, blowing his clients’ attorney-client privilege as well as anything that would be covered by work product protections, flouting all laws of procedure, not getting the attorneys who employ him disbarred and on and on. Look, this isn’t like complaining, “That TV surgeon used a clamp instead of forceps,” or a fictional TV chef using a mandoline when she should be using a rasp. While annoying, those are errors, not whole-cloth falsehoods that give a recklessly false picture of the world depicted.

And, seriously… ELEVEN mock trials? And they don’t even lead you to the OBVIOUS THEME that the defendant is a hero? Ugh.

Join two accomplished trial consultants, Rich Matthews and Richard Gabriel (Decision Analysis) as they discuss this show.

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Podcast: Stepping in ‘Bull’: Another trial consultant & I discuss this ridiculous and harmful show.

Click here for podcast, Stepping in ‘Bull’

CBS launched a new show from the apparently forgetful mind of Dr. Phil, that pretends to be about trial consultants. Fiction is great; outright falsehood is not. And in a year in which the American public is being told (correctly, incorrectly, or partially either) that its institutions are rigged – government, financial markets, the media, elections – it is harmful that the public is now also being told that its justice system is rigged. Rigged by a smarmy, cocky, godlike consultant who single-handedly somehow has the power to empanel any jury he wants to achieve any outcome he wants, flouting all laws of procedure, committing crimes, not getting the attorneys who employ him disbarred and on and on. Look, this isn’t like complaining, “That TV surgeon used a clamp instead of forceps,” or a TV mechanic tightening the lugs on a wheel in the wrong order. While annoying, those are errors, not whole-cloth falsehoods that give a dangerously false picture of the legal system.

Join two accomplished trial consultants, myself and Sonia Chopra (ChopraKoonan) as we discuss this show. There might be a little swearing.

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5 Mistakes Just About All Trial Attorneys Make in Jury Selection (yep, maybe you, too)

Here is a partial list of mistakes that nearly all trial attorneys make:

1. Not Knowing the Actual LAW of Jury Selection.

I get blank stares from attorneys when I talk about the actual statutes that govern jury selection — which could well give us good things our party is entitled to under the law. In California, that’s the Code of Civil Procedure sections 222.5 (for civil & bits for criminal trials) and 223 (for criminal trials). Your jurisdiction may vary, but it has similar statutes, too.

Continue reading

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Rich on ‘Celebrity Court Radio’ re ex-Gov Rowland conviction

Elizabeth Kelly, Esq.

Elizabeth Kelley, Esq. Host of ‘Celebrity Court Radio’

I was on Elizabeth Kelley’s ‘Celebrity Court Radio’ show yesterday, available by clicking here. (I’m approximately 10 minutes into the show.) The subject was the conviction of John Rowland in a Connecticut federal court for violations of campaign disclosure/finance laws and obstruction of justice. He faces 57 years in prison. This is ten years after the felony conviction that drove him out of office as Governor of the Nutmeg State. This time, the jury convicted him after seven hours of deliberation over two days. Clearly, they saw the case pretty much the same way, which does not always happen with any group of 12 people.

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75 Seconds of Jury Selection Thoughts

LadyJusticeImageClick here for video.

This was recorded by the Animal Law Defense Fund after I gave a presentation on jury issues in animal abuse prosecutions. (Biggest challenge: lots of jurors don’t consider it “real” crime when compared to murder and residential burglary, etc. So voir dire is, yet again, really important.)

Obviously, there is a lot more to say about jury or mediation persuasion in your particular case, civil or criminal. So click on Contact and get in touch with me.

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Expert Testimony: Some Science & Some Art to Increase Your Value

All expert witnesses are gonna get one of these labels. Don't you want the first one?

All expert witnesses are gonna get one of these labels. Don’t you want the first one?

You’re an expert witness who wants to add the greatest possible value to your side. (Or you might be the attorney who wants to get the most juror persuasion out of your expert.) You’re in the right place.

Jurors taste expert witnesses in three flavors:

  • the Benevolent Educator,
  • the Hired Gun, or
  • the Superfluous Pontificator.

Continue reading

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Questions from Jurors are GOOD, Period.

Pulp Cover_Juror QuestionsThere’s a story in the July 21 online edition of the Boston Globe about a trial in which jurors have asked 281 questions, and in my opinion, the piece skews rather negatively about the whole practice of allowing jurors to ask written questions during trials. That’s wrong: Juror questions are a good thing for you, Counsel, and you should be enabling them in every one of your trials. Continue reading

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Summer Book Recommendation for Civil and Criminal Litigators: “Acquittal” by Richard Gabriel

‘Acquittal: An Insider Reveals the Stories And Strategies Behind Today’s Most Infamous Verdicts’ by trial consultant Richard Gabriel is a great summer read which I recommend to all attorneys who try cases – even civil litigators. Continue reading

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The Difference Between an Expert and an Expert Witness

We think how we speak after awhile. An expression can become detached from its origins and then lead to blinders.  In litigation world, saying “expert” and not “expert witness” is one of the particularly bad ones, made worse by its near universality. Here’s why we should knock that off. Continue reading

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When to Stop Voir Dire

Some weeks ago, I was talking with a lawyer who probably does a dozen trials per year and has been doing it for 15 years with results that are well above average. She was lamenting her discomfort with the jury selection process, especially the oral questioning of prospective jurors. Among other things, she said, “And how do you even know when to stop?” Continue reading

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Will You Give These Jurors What They Want?

Many thanks to Alex for his kind quotes.

At Counsel Table

jury1A couple of weeks ago, I sent fellow blogger and trial consultant Rich Matthews an email asking if he would comment on a post I was thinking about writing. It would be called “Avoid These Five Ways Of Alienating The Jury.” I was expecting him to provide a laundry list of “don’t dos” if you want to stay on a jury’s good side, such as wearing a bow tie,† showing up late, interrupting witnesses, etc.

Instead, Rich offered a much shorter list of ways–just two–to give the jury what they want and expect. On reflection, Rich’s list of “dos” made much more sense than my proposed list of “don’ts”. Here’s what Rich said:

“I think jurors want two and only two things from counsel, and get alienated easily when these are violated: help with understanding the material, and not wasting their time. That’s it. As obvious as that might sound…

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Even More Words Lawyers Should Banish

Textemada (d.b.a. the Torquemada of Text) is back with more words and phrases that lawyers simply must banish from their vocabularies. I would say “at least in front of jurors,” but I think the reality is that our minds get trained by whatever we do, wherever we do it. The person who says “disingenuous” around the office – and, boy, is there a more weasely word than ‘disingenuous’? – will likely say it in court, too. Continue reading

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Significant Appellate Decisions About Jurors & Jury Selection, 2012-13

Here are 19 appellate decisions from 2012-13 regarding jurors and jury selection that you should know about. (Via Prezi; great thanks to creator T. Smith.) Continue reading

Posted in Jury Psychology & Dynamics, Jury Selection, Trial, Writings | 2 Comments

Alex Craigie: Five Ways To Use A Jury Consultant Effectively

Alex Craigie, Esq., a litigator based in Los Angeles, gentleman and scholar, writes a blog called ‘At Counsel Table,’ which I recommend. Today, he has published on “Five Ways To Effectively Use A Jury Consultant,” in which he has generously used some of my thoughts. Please read it.

Alex and I both hope to help you bring about resolutions that are (a) more favorable to your client, and (b) sooner than later. And if your case must go to trial, well then let’s get the best damn results.

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Contempt in Court: Too Many Lawyers’ Attitude Toward Jurors

The online blog of the ABA Journal asked a question recently: “What words or phrases do you think should be avoided in front of a jury?” Continue reading

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One juror’s experience. Excellent read.

Every so often, I see something that a juror has written about his or her experience as a juror, and they are always valuable. Some moreso than others. A man named Gerry Walker in New York City wrote a terrific two-part essay about his recent jury service. I hope you will read both parts. Continue reading

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