Mastering jury selection in the vehicle-negligence case
Even after trying cases for 18 years, I still get nervous when the time comes to pick a jury. The restlessness starts the night before. I wonder what I have forgotten, or that the more I prepare the more unprepared I feel, despite the fact that by this point I have done at least three practice voir dires in front of focus groups. The morning of the trial I have a lot of difficulty brushing my teeth without causing my gag reflex to kick in. I cannot eat breakfast, and I don’t drink coffee. My mind is racing and my nerves firing. I often say things to myself like, “Why does this bother me so much?” “Why can’t I be stronger?” “Why am I still afraid after all of this time?” “I’ll bet the great Gerry Spence does not get nervous.” “I wish I was smarter.” “I wish that I was a better trial lawyer.” “I wish that I was brave and fearless like the real trial lawyers.”
The truth is that after 18 years of practice and over 100 jury trials conducted all over the world in state, federal and military courtrooms; after murder trials, brain injury trials, quadriplegic trials, burn trials, business dispute trials, contract dispute trials, civil rights trials (the hardest in my opinion) and federal patent trials, I still get nervous. Automobile- negligence cases are no different.
The ability to care
However, I no longer beat up on myself for feeling this way. I now see fear as a gift to me. The fear is a gift to remind me that I am afraid because I care. The caring is critical to the case. I know for a fact from my experience that if I don’t care about my client and their cause, the jury will not care either. Caring is contagious. Caring is infectious. Caring says that I believe in something other than me and my own personal needs. This is attractive to people. Caring is becoming an endangered species. Rare. So few people care about much more than getting home to their TV to watch their corporate-sponsored programs and eat their five-minutes-or-less fast food. They care about judging the people on the TV as dysfunctional or stupid. They care about who gets voted off of the island or is selected to sing in the next round. They care about which movie star is dating which celebrity. But they just don’t care about you and me.
While this may be true to some degree, I believe that everybody has the ability to care. They are just waiting, quietly, for someone to care about. They are just waiting for someone to care about them. Aren’t we all? People are attracted to those among us who have a passion; those who fight for something or someone that matters:
Someone who is passionate about righting a wrong.
Someone who will just tell us the truth; all of the truth.
Mostly, we want someone who will tell our truth. Who gets us and sees us.
Someone who cares about us even when others have not or would not.
Someone who will speak with us, through us as if they are a voice that comes from within us. Not above us.
Someone who will sit with us in our darkness, rather than tell us from the outside looking in that they sympathize with how we feel.
As the chief instructor at Gerry Spence’s Trial Lawyers College, I am responsible for the training of our instructors and staff on the TLC methods for trial skills and the lead instructor for the trial skills portion for the three-week college. At TLC, the most essential premise that we develop in our lawyers is that they must first discover and develop what it is about their clients that they love and care about. We say that jury selection and trial, “all begins with you!” What we mean by this is that in order for the jury to care about your client and their case, you the lawyer must care. We believe that if you want the jury to trust you, you must first be willing to trust the jury. In order for you to convince the jury of the righteousness of your client’s cause, you must first be convinced. For the jury to be comfortable with the bad facts of your case, you must first be comfortable. For the jury to tell you the truth during voir dire, you must first tell your truth to them openly, credibly and honestly.
How do we do this? How should we start a voir dire and what should we be feeling? What should we be thinking? What should we say first? How do I get the jury to like me? How do I get them to tell me the truth? How do I know if they are telling me the truth? How do I get them to care about my client?
First, we have to start with our preparation outside of the jury. The preparation is very important to the overall success of the case. In fact, many of us believe that once the juryis picked, the trial, for the most part, has been decided.
The preparation prior to the voir dire is overlooked by many trial lawyers. Many of them rely upon old “schticks” that they have developed over the years. Many of their “tricks” are pieces that they have seen performed by other lawyers and they thought that they would absorb them into their routine. Tricks do not work. Tricks are designed to allow you to feel better, safe, about manipulating strangers.
Practice makes perfect and being better prepared is the most important skill to develop in order to win a trial. The self-proclaimed “trial lawyers” are often big personality, the “loudest one in the room” types who have a perception of themselves that they can talk to anybody about anything. Their perceptions are rarely accurate. The loudest one in the room is usually the weakest one in the room.
Most lawyers that we train (lawyers from all over the country, young and old, male and female, no experience and forty-plus years) all want to start their voir dire by telling the jury the best things about their case. You will often see these lawyers start off with asking questions of the jurors, trying to get them to agree with the lawyers’ best facts in their case, which is usually something that attacks the other side for having done something wrong. This means an aggressive or angry lawyer asking the peaceful jurors to join this person.
The psychology behind why they do this is fear based. They are afraid of the jury and the jurors’ judgment for the lawyer. The lawyer is afraid of being stereotyped. The lawyer is unconscious to the reality that they do not do well with rejection. Especially the highly ego-based lawyer. The one who has adopted the role of “Mr. Man.” You know the type, “I know everything and everybody.” Keep in mind, incompetence doesn’t recognize itself.
Leadership by example
The most effective lawyer is the one who starts with the worst facts of his case because these facts will cause this lawyer the most fear about their case. Being open and honest with the jury, right up front about these facts and how you feel about them fosters what we referred to while I was in the United States Marine Corps as leadership by example. If you want the jury to be open about how they feel, you must first model it for them and they will give you back exactly what you give them.
Some of the best lawyers that I have seen do an incredible voir dire are public defenders. Yes, public defenders who get the worst cases, with the worst facts, and some of the worst clients, such as gang members, drug dealers, murderers, rapists, molesters, etc. However, despite these very bad facts and bad clients, they have developed a way to be very open and real in front of the jury: To just tell the jury right up front the problems with the case.
The circumstances from the facts of their case have forced them into having to be incredibly vulnerable while in front of the jury. They have to just admit that the jury is going to find out horrible facts about the case and about their clients and ask them how this makes them feel. This makes them completely real and vulnerable. However, this is their power. Yes, their power. They often have to stand in front of the jury without any defense at all.
Imagine being a death penalty lawyer and having to voir dire when they can prove your client did it and there is no defense. Standing in front of jurors with this reality removes all barriers and leaves them completely open and honest.
This is the key to becoming real and believable. People who are afraid protect themselves. When we are afraid of someone, we do not trust them, and as a result, emotionally we are in survival mode. We protect, hide and guard our fragile and delicate egos. However, when we are vulnerable, completely vulnerable, we have no defenses between us and those around us. We are willing to take a chance, and in this moment, we are the most attractive.
Now think of those times when you watched and listened to a stranger talk to you. You could tell when they were just being superficial. You could see when they were being polite versus when they were being open and honest. You could tell when they were holding back, nervous or even worse, argumentative and angry. You could also sense when they did not trust you. Now ask yourself, did you trust them? Were you connected to them? I am sure that you were not. Now ask yourself a better question, when was the last time that you had a connection with a perfect stranger? Not a physical one, the kind of connection that put you at ease and caused you for some reason to just trust them.
When was the last time that a perfect stranger, someone working as a clerk in a store, or waiting in a line to buy items, or on an airplane sitting next to you, really made a connection with you? The kind that caused you to feel that you just trusted them.
You may not have even agreed with them on certain issues, but you could tell that they were sharing with you feelings they had on any issue and that you could understand where they were coming from. More importantly, they were a really good listener. They would ask your opinion and then they would remain quiet, calm and still while you fully and completely answered. They were very interested to hear your opinion, so much so, they never interrupted. They were right there with you while you shared with them how you felt. They were not chomping at the bit to share, just waiting until you finished so that they could talk again. They were fully present and in the moment and you and your words was all that they were aware of.
Most importantly, no matter what your view was, they did not argue with you or try to change your mind. They did not try to get you to agree with them or say you could see it their way. At no time did they try to change your position or judge your comments. They just wanted to hear how you felt. Someone to talk to on a long flight, someone to stay up late with and share with, or someone to hear yourself say, “I have never told anyone this before, but . . .”
This is the atmosphere we should be striving to create: An atmosphere and energy that causes the jury to want to share, to want to be heard and to want to give an opinion. Have you ever had the experience in voir dire where you asked question after question and no one answers? You just get complete silence. What if I told you that I could show you how to do a voir dire where you would end up having a group discussion as if it were a talk show and you were the host?
This voir dire is real but will not come from a voir dire that comes from those ridiculous, “can you be fair questions,” those sad pigeonhole-like questions such as, “What was the last book you read?” or “What does the bumper sticker on your car say?” Can you imagine asking someone at a bar, “Is this seat taken?” and they say, “Do you have a bumper sticker on your car and what does it say?” There are NO great questions that work every time. Those are questions that were designed to hide the lawyer’s essence from the jury, and as a result the jurors will hide theirs as well.
Identifying facts that you fear
The first step in preparing a good voir dire requires the lawyer to identify those facts of your case that you are the most afraid of. Then discover how you really feel about these facts. For a car-wreck case, it may be that your client has suffered a whiplash before this accident or that this is not the first time that they have filed a lawsuit for injuries. Now ask yourself, how does this make you feel?
If I ask myself, I admit that I don’t like these facts because they make me feel afraid. I am afraid that the jury will not believe that they are really hurt by this accident if it has happened before. I am afraid that the jury will believe that she is using this accident to get paid as if the court system was a lottery system.
Now why am I afraid? I am afraid that the jury will not believe me or my client and they will defense us. Then I will be humiliated and rejected. I don’t like rejection. Now let’s find out what the next layer down is. I ask myself, “What is underneath this feeling?” Do I really feel this way about my client? Do I feel that they are gaming the system? If I do, I cannot help you with this. Personally, I know each and every one of my clients very well and I know their cause and case is legitimate. I begin to focus on the “why” my client is legitimate and how it would feel to be them, and to sit in front of all of these strangers and have to listen to the defense lawyer stand up there and call her a liar. Hell no! I am not having it.
For example, I might say to the jury, “When I first got this case and I read the file I said to myself, ‘Not another neck strain/automobile negligence soft tissue case. No one believes these cases because they are so easy to fake. I don’t believe a lot of these.’ I was wondering if anyone else felt this same way when they heard the judge tell you that this was the type of case you are being selected for?”
What you are doing here is putting a voice to how the jurors feel without challenging their stereotypical prejudice. You are now being seen as similar to them and they will identify with you. They now feel like you get them and you are the same as them. There is nothing between you. Most importantly you can hear them and they have not even spoken yet.
Recently, I started with the jury by saying, “I was raised to believe that I should respect police and that I should always do what they say. That I could trust them and that they were there to help me. Was anyone else here raised this way?”
I received an incredible amount of feedback. This was really how I started. The very first words. No wasted time on the usual fake, “Thank you so much for being here. This is the time when we the lawyers get to talk to you, blah blah blah.” Before I was done with the voir dire, I had three jurors out of 18 completely open up and shed tears about their personal experience, without being asked any specific questions by the court about their past life. I created a safe and friendly environment for them to share.
Slowly but surely, they felt safer and safer. Each juror’s comment caused the other ones listening to feel safer and more open. Each share got more personal and deeper. During each one I would just stand and listen. My hands at my side. Quiet, no chattering words of active listening. Just completely still and fully present. They could feel me listening to them. With no judgment and no agenda to find some way to use their answer to my benefit.
The lawyer with me could not believe how much I got the jury to speak for a solid two full hours. He said that had he not seen it, he never would have believed it. He said that they never let us go this long in federal court and you never even once stood behind the podium. This was in federal court and the judge asked me at lunch, how much longer I would need to go. I started at 10:00 a.m. This is what is possible if the jury is doing all of the talking. When the lawyer is doing all of the talking, the judge and the jurors both get bored and cut it off.
Once I am able to get the jurors talking and sharing, I will ask other jurors how they feel about what they just heard from another juror. This is how I get the group discussion started. I get the topic moving around. I look for those left out and bring them in. I watch for signs from the jurors who may have physical responses to what they just heard, which indicates that they are feeling something. The biggest mistake that lawyers make when using this approach is to use the good answers that they get to advance their agenda. If this happens, then the jurors instantly know that they just got used and manipulated.
Be a good listener
I recently picked a jury on a car-wreck case. I was moving in the direction of damages and was testing to see if any jurors could understand loss. I asked one young man in his very early 20’s if there was something that he loved to do that if he could not do it any longer it would break his heart. Something simple but very important. He told me yes; when I asked him to tell me about it: He said that it was playing his guitar. I then asked him to share with me how he felt when he played it when he was by himself, alone. He thought and then he shared that for him it was his art. His way of expressing his soul. He said it was like therapy for him.
It was a great answer for us because my client could no longer perform her art of drawing due to the accident. The wrong thing for me to say to the juror would have been, “You know, this is exactly how my client feels. She has lost her art. You are exactly like her. So you will agree with me that you can understand her loss right?” This is wrong because the juror will now feel used, or “pimped out” as I often say. You will also send the message to the other jurors that you really did have an agenda the entire time and you just used them for your own benefit.
This will cause feelings of betrayal, which is the worst thing that you can do. You would be better off doing the same old voir dire, than you would betraying the jury in this manner. What I did was to simply stand there and listen. Even after he was done sharing. Then I believe I said that I used to love to play the drums with the headphones on. For some reason it just felt good even though I was not very good. I could totally understand how he felt. That was it. I thanked him and then I moved on. Remember how good it makes you feel to be listened to. Be a good listener.
The greatest skill that a trial lawyer – that a person – can have is to be a good listener. Become a good listener and those people on your juries will become good talkers. Become an open, honest and vulnerable person and the jurors will respond identically. Discover what you care most about the case and the client and the jurors will care as well.
Joseph H. Low, IV practices in Long Beach. After serving 8 years in the U.S. Marine Corps, he went on to earn his Bachelor and Master of Science Degree in Bio-Physical Chemistry from the University of California, Santa Barbara, where he won a research grant for his work designing drugs to treat cancer. He continued his education when he attended McGeorge School of Law and Gerry Spence’s Trial Lawyers College, where he is now actively involved on the Board of Directors and as Chief Instructor.
Copyright © 2020 by the author.
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