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.
“Actual bias – the existence of a state of mind . . . which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (California Code of Civil Procedure, §225(b)(1)(C), emphasis added)
“A challenge for implied bias may be taken for . . . the existence of the state of mind in the juror evincing enmity against, or bias towards, either party.” (CCP §229(f), emphasis added)
I constantly see attorneys trying to argue for a cause challenge without ever using the statutory language … possibly because they haven’t read the language and don’t realize how helpful it can be. Use the statutory phrases ON the record, and alert the judge what the actual statute says. Keep in mind a too-little-known reality: most judges have not read the actual statute, but rely instead on the Benchbook and Handbook given to them by the Judicial Council and CEB as part of their judge training — and these books are often wrong. Incredibly, it sometimes misstates the law; more expected is that it is also occasionally wrong by any modern view of human psychology. Gently point out that the secondary materials that judges are often provided actually misstate the law.
(And if you are feeling especially brave and/or jovial, humorously point out that the judge would rightly throw any lawyer out of court for citing hornbooks, practice guides, and other secondary sources instead of statutes and cases.)
And a bonus statute that trial counsel should just know cold: the statute that governs the mini-opening before oral questioning of prospective jurors. (In California, that’s CCP 222.5.) California’s law says that “the trial judge should allow” them, as in the legislature encouraging it, so if a judge isn’t letting you do it, nicely make the judge put the reasons on the record; “Because I don’t like them” ain’t a good enough reason to overcome the legislature saying “should allow.”
And a bonus bonus: Know your statute that permits jurors to ask questions during trial. (In California, that’s Rule of Court 2.1033, with the same language that “a trial judge should allow jurors to submit written questions….”) Again, I am constantly seeing judges say they just don’t like them (boo hoo; get another job), that they take too much time (demonstrably false; they add mere minutes onto the length of a trial, and often not even that), that they sometimes raise issues jurors shouldn’t be thinking about (ignoring that they ARE thinking about X, and that maybe that would be the time to tell the jury that X will not be part of the case; besides, counsel can object before the question is posed). If your judge is going to disobey the “should allow” preference of the legislature, nicely make your judge put reasons on the record. “I don’t like them” is not a sound use of discretion if the legislature favors. Maybe we can get judges to take “should allow” more seriously. All counsel will benefit.
2. Arguing the Case In Voir Dire: Trying to Get Agreement Instead of Information.
Advocates can’t help themselves. I get it. But still, you wouldn’t use a wrench to do the work of a screwdriver, so put that tool back in your box and use the right one for the right job.
That correct job during jury selection is to UNCOVER INFORMATION (sometimes seducing it) SO THAT WE CAN MAKE SUCCESSFUL CAUSE CHALLENGES AND INTELLIGENT PEREMPTORY ONES.
Yes, there are other ends that can be achieved during oral questioning, but when secondary and lower ends are served at the expense of the primary one, you’re doing it wrong. If you’re one of the 90% of lawyers who ask voir dire questions that begin, “But wouldn’t you agree that…”, please stop. Stop now.
3. Talking Like A Lawyer in Front of Laypeople.
I can appeal to your rational brain by telling you that opinion polls show that people widely dislike and distrust lawyers… so it would be to your obvious benefit not to sound like one.
Or I can appeal to your own experience: when someone is speaking in vocabulary and sentence structures that you don’t quite understand or which just plain seem foreign or odd to you, have you felt closer to that person or further away? Did your trust for that person rise or fall?
Moral: talk like a regular person, and never use obnoxious lawyer words like “indicate” or anything in Latin. Or that unwise into that tells the uninterested crowd the unriveting story of the unnecessary phrase “voir dire.”
4. Arguing With the Data Instead Of Listening To It.
I see lawyers dimiss bad but telling data about prospective jurors all the time, mostly because they like the person for other reasons. If you are picking a jury for a criminal defendant and someone has previously served on a criminal jury that reached a verdict (meaning a 95% likelihood of a guilty verdict), accept that data and realize that this person is not great for you; don’t fight the data. By all means, put that lone data point in context with everything else you know about this person, definitely; compare to the pool you’re left with after cause challenges, absolutely. But don’t tell yourself, “Oh, but that’s not truly bad because…” and try to dismiss “bad” data away.
5. The Trap of the Similarly Situated Juror (or Not Understanding Your Juror Profile).
Picture it: you’re picking a jury and a potential juror gets called into the box who has so many similar characteristics to your client — had been arrested for DUI, or charged with rape, or in a civil case had lost a leg in a workplace incident, just like your client. Lawyers often think, “Yay, there’s a friend! That person will see things our way.”
Wrong. They will be first ones to judge your client harshly. If you’ve ever had recovering alcoholics on your DUI jury or previously injured people on a civil trial, you know that they do not generally vote in favor of the party to whom they’re most supposedly similar. And why? Because the psychological phenomenon called defensive attribution makes us attribute what happened to ourselves to bad circumstances, but what happens to others is bad character. “Hey, what happened to me was a pure accident; you, in contrast, are a reckless dumbass.”
And really, falling into this trap is just one example of a bigger problem: not understanding your juror profile. It’s not demographic; that’s a lazy and wrong way to pick a jury. It is attitudes and life experiences that bear on decisionmaking in your specific case. In criminal cases, you want to rate everyone on their authoritarianism; where are they on the scale from Total Fascist to Complete Anarchist? In civil cases, you want to plot everyone on the scale of “Captain of My Fate, Master of My Destiny/Everything In My Life Is Because of Me” (pro-defendant, think Donald Trump) to “My Life Is The Way It Is Because of Forces Outside My Control” (pro-plaintiff). These examples are based on tons of research. There are lots of other attitudes and experiences that bear on your case. FIGURE THEM OUT. Get a trial consultant. Do research. Don’t just wing it — “Oh, my client is Latino, so I’ll just look for Latino jurors.” It’s illegal, and what’s more, it’s ineffective.