I have been practicing law for nearly 25 years, and this July will mark the twenty-year anniversary of my first jury trial. Since that first trial, I have litigated hundreds of cases, but none of them has had a more resounding effect on how I go about jury selection than that first trial. For you see, during that first trial, I was fortunate enough to have Alice - a paralegal with 40-plus-years of experience - and she was instrumental in helping me assemble the best jury for my case. Truth be told, I lost that case. But ironically, when I questioned the jurors afterwards, each one of them was clearly sympathetic to my client, agreeable with my arguments, and expressed almost regret that "the law" would not allow them to find for my client because I "clearly had the better case." The fact that every juror was "good for the plaintiff" is a tribute to Alice and the assistance that she provided me during jury selection. Although Alice passed away years ago, her - and now my - Top 10 Tips for Paralegals Assisting in Jury Selection lives on, and are as follows:
- Put Yourself in the Jurors' Shoes
Before you begin to assess any juror's demeanor, answers, gesticulations, etc., try to put yourself in the jurors' shoes. They probably do not want to be there. They most likely do not like or feel comfortable speaking in public. They probably have dozens of things on their mind: their job, spouse, kids, pets, family members, when's lunch, did I put enough money in the parking meter, why does that other juror keep looking at me, what is this case even about, . . . . In the end, you have to wear each potential juror's shoes for the hour or so that voir dire lasts.
- Don Eagle Eyes
Everything matters. Who is paying attention? Who is fidgeting? Who is dozing off? Who is nodding in agreement. It is extremely unlikely that any juror will sit perfectly still for the entire voir dire and not display one single visual cue. The paralegal has to be constantly vigilant. One missed "eye roll" and your attorney's case might be lost before the first witness is called.
- Watch Everyone BUT the Juror with Whom the Attorney Is Talking
Try not to even look at the juror with whom your attorney is speaking and to whom he or she is asking questions. Trust me, the attorney is paying acute attention to every detail that comes from that juror - albeit verbal, visual, or subliminal. And exactly because the attorney is so fixated on that one particular juror, it is impossible for him or her to notice anything about any of the other jurors. Hence, it is the paralegal's job to be the eyes in the back of the attorney's head, on the side of the head, and everyplace else that would allow the attorney to see the other jurors if he or she was not transfixed on the one juror.
- Listen for Anything Uttered by a Juror - Verbal or Nonverbal
Once again, do not focus on the jurors being questioned by the attorney. The attorney will note anything of import said by those jurors. The paralegal's job in assisting in jury selection is much more subtle. The paralegal is listening for the faint sigh, the barely audible "tisk tisk," and the under-the-breath tidbit of honesty.
- Note Anyone Who Appears to be Eager to be ON the Jury
As a general rule, an attorney will not want anyone on a jury who clearly wants to be on that jury. This is because those people typically have an agenda. And although you may believe you perceive that the juror's agenda is favorable to your side, the fact of the matter is that people with agendas are very good at getting their agendas across. If doing so requires them to put up a fašade and give the false impression that they are "pro plaintiff" when they are really "pro defendant," then they will do that - and vice versa. Always remember, the jurors with an agenda will not truly display that agenda until they are safely behind the closed and confidential doors of the jury deliberation room.
- Pay Attention to Pauses and Cues of False, Misleading, or Incomplete Answers
While you are looking at everyone BUT the juror talking to the attorney and listening for EVERY cue, keep in mind that psychologists have identified the following nine subtle signs that someone is not being honest: (a) throat clearing; (b) hard swallowing; (c) jaw manipulation; (d) eye pointing; (e) feet pointing; (f) lack of emphatic gestures; (g) backward head movement; (h) backward leaning; and (i) movement of or attempts to hide the suprasternal notch - the little triangular area on the neck between the collarbones. If you notice one of these, make a note of it because the attorney talking with the juror might not have noticed it or be aware of its significance.
- Look for The Leader
Every attorney wants one and just one leader on the jury, and that leader has to be favorable to your side of the case. As a paralegal assisting in jury selection, one of your jobs is to "look for the leader." Hopefully, there will be more than one within the jury pool and, more importantly, that favorable leader will make it to the actual jury panel.
- Watch for The Followers
Once you have YOUR leader, the rest of the jury should be made up of good followers. Consequently, "watch for the followers." There actually should be quite a few in the jury pool. Unlike "The Leader" whom you previously identified, the followers - by definition - do not need to be predisposed to your side of the case. As good followers, they will fall in step with "The Leader" you found and, hopefully, was able to get on the final jury panel.
- Spot the Bumps on a Log
Ultimately, there are only three types of people in any jury pool. First, leaders, from which you want to be able to have one who is favorable to your case seated as a juror. Second, followers, of which you want all the remaining jurors to be. Third, bumps on a log, which you want to avoid like the plague. They do not take charge like favorable leaders, nor do they necessarily fall in line like dutiful followers. They are a wasted seat, and if you can spot the bumps on a log - the potential jurors who could not even muster enough energy to keep their eyes open during the 1-hour voir dire - the final jury panel will be all the better without them.
- Write Everything Down
Although the voir dire may last only an hour or so, it will require you to pay the utmost attention to every minute detail - both visual and audible - displayed by the jurors. Consequently, good notes that clearly identify the potential juror, the cue noticed, and the recommendation based thereon must be written down quickly, efficiently, and accurately. When the time comes for the attorney to strike certain potential jurors, the attorney cannot be trying to decipher the paralegal's notes, and the paralegal cannot be trying to recall why he or she wrote down what he or she did.
The importance of jury selection cannot be stressed enough. Although as I have unfortunately learned, having a paralegal adhere to the above Top 10 Tips, does not guarantee a successful outcome at trial, it clearly starts the trial out on the right foot by assembling a jury that - more likely than not - will be sympathetic to your client, agreeable with your arguments, and open minded about your case.
Jack Schafer, Ph.D., Psychology Today, "9 Subtle Signs That Someone's Lying to You
," (Nov. 4, 2014).
Kenneth P. Kula is a trial attorney with Buether Joe & Carpenter LLC. He has more than 20 years of experience representing individuals and companies in complex litigation involving intellectual property, such as patents, copyrights, trademarks, and trade secrets. He has represented clients, as plaintiff and defendant, and has tried both bench and jury trials in state or federal court in various courts throughout the United States. He is active in the National Institute for Trial Advocacy and will be teaching at its upcoming Building Trial Skills program at Southern Methodist University. He has been admitted to practice before the U.S. Court of Appeals for the Federal Circuit and before various federal district courts. He earned his B.S. degree from St. John Fisher College and his J.D. degree, cum laude, from Washburn University School of Law.
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