I found a couple more notes from the jury pick I mentioned in the May 5 post. The big themes: in jury selection, keep your language simple and clear, and keep your questions open.
When Lawyers Talk Like Lawyers, It Makes Baby Jesus/Abraham/ Mohammed/Buddha/Vishnu Cry
The case involves complaints of lawyer malpractice. One of the venirepersons (now a seated juror) manages the workers compensation claims and hearings for a public institution. Naturally, any lawyer would want to know whether this experience has given her a generalized opinion of lawyers in their professional capacity, and if so, what that flavor might be. Now, the guy on the other side has a few decades of trial experience, a sizable firm behind him, spent months ramping up for this trial, and has the persona of a non-British James Mason in ‘The Verdict.’ He looks at the work comp manager, and says:
“Do you interface with attorneys?”
After a moment of crickets chirping, he correctly diagnoses that his question was lousy (or, as he would surely say without the slightest bit of irony, “inartful”), so he attempts to correct it:
“Do you interface with attorneys as an integral part of your job?”
Sigh. I talk to jurors. I have talked with literally thousands of mock jurors and real trial jurors after their service. I know what they think of trial counsel, the good, the bad, the neutral. I can say with some amount of confidence that they thought this attorney might be an out-of-touch windbag who can’t get to a simple point in a straight route.
“You must deal with almost as many lawyers in your job as I do in mine, so, you know… my condolences. [Pause for authentic chuckles] So let me check that out with you—does part of your job involve dealing with lawyers pretty regularly? [Yes] What’s that like for you? [Listen to answer.]”
Notice that “What’s that like?” is a different structure from “What is your opinion/what do you think?” type of questions. Those would be fine, but “What’s that like?” is just that much broader and more inviting, and easier for laypeople to find their way into answering. And the quality of information will likely be better. Is it basically asking their opinion? Of course. But it’s also doing it in a less formal, more conversational, broader way that invites input, creates a conversational environment that laypeople will be more inclined to join.
Oh, and if I may invoke some rulemaking authority. Rule: no lawyer is allowed to use the word “interface” as a verb— except when handling cases that involve an electronic technology that uses interfaces. The word you’re looking for is more human, such as “deal with,” “interact with,” “come across,” “work with,” and so on.
You will get two big benefits from taking the time and accepting the responsibility to make your questions simple and comprehensible: You’ll get better responses and you’ll seem like a more approachable and likable person. That’s not merely good for the ego: credibility is mainly two ingredients—likability and competence. Being nice and asking clear conversational questions earns you credibility points. Bank ‘em.
Do You Understand That “Do You Understand That…” Is A Closed (and Lousy) Question?
As in every jury selection I have ever seen, the two Advocates on the other side made frequent use of an exceedingly common lousy lawyer trope. After a prospective juror says something that shows some discomfort or disagreement with something the attorney just said, instead of letting that conversation flow so as to draw out that person’s thoughts and possibly start building a cause challenge, the attorney says:
“Do you understand that the law is . . .?” As in, “Do you understand that the law is that not every mistake is the same thing as negligence, and that you’ll be instructed on that by the judge.”
It’s a communication neutron bomb—it destroys the conversation, but leaves everything else standing where it was.
Why is this trope so incredibly common? I think it goes back to some basic shared personality traits of litigators: need for control, inverted priorities over the purpose of voir dire (i.e., the fallacy that giving info > getting info), and some uncontrollable lightning-fast reflexes for precision that kick in whenever anyone says anything slightly wrong.
What’s better, then? Well, let’s back up to first principles for a second: What are we trying to do with voir dire? UNCOVER attitudes, beliefs, and experiences that will help us develop cause challenges if we can, and if that doesn’t work, then to exercise peremptory challenges to our best advantage. There are second- and third-level purposes as well, but they are small in comparison to that need. (And notice how I did not use the words secondary and tertiary.)
So given that, maybe the first response is: Draw them out even more. Nod a couple times and smile with a little warmth, and say:
“A lot of people probably feel that way. Tell us some more about that.”
And the more unfavorable to our side, the more we should draw them out about their views—go panning for that cause challenge gold. I know this is very counter-intuitive for most litigators. The plaintiff bar seems to have mostly gotten this; the other three trial tribes are kind of lagging. (The four trial tribes are: civil plaintiff, civil defense, criminal prosecution, and criminal defense.) Much more on this in many future posts. Also, more to come on developing and cementing cause challenges.
Here are a few things to write on your office whiteboard a few weeks before trial and leave them up there through jury selection:
- When you’re talking, you’re not learning.
- GOOD questions lead to GOOD info.
- Draw out the Unfavorable… Hard as that is to take.