From PLI’s Course Handbook
Trial by Jury
#16990
1
selecting the best possible jury
David R. Marriott
Cravath, Swaine & Moore LLP
Selecting the Best Possible Jury
David R. Marriott
The outcome of most jury trials depends in important part on the composition of the jury. While the composition of the jury is largely outside counsel’s control, there are things that can be done to maximize the probability of a receptive panel. Following are 10 tips for selecting the best possible jury.
1. Know the Rules
Rules governing jury selection can vary widely. They differ from state to state (and sometimes even within a given state), and there is no uniform approach to jury selection in federal court. As in any part of the trial, knowing the rules, such as those concerning the order and nature of permissible presentations and the number of and manner for exercising challenges, is the critical first step to applying the rules to your advantage.
2. Create a Juror Profile
Selecting the best possible jury requires determining the type of person most likely to be receptive to or predisposed against your case. That can be done by carefully considering the facts and issues of the case. A plaintiff asserting a claim of police misconduct is unlikely to want a police officer on her jury, whereas a police officer may be an ideal juror for a plaintiff asserting a breach of contract claim. Jury consultants and mock-jury exercises can be useful in creating a juror profile. Creating such a profile in advance of trial puts counsel in a position to make split-second decisions more intelligently.
3. Put Yourself in Jurors’ Shoes
Jurors generally have little experience with courts, lawyers or trials. They typically know nothing about the parties and the subject matter of the case, not to mention the facts. Most potential jurors have little interest in serving on a jury. For some, jury service is a hardship. Putting yourself in jurors’ shoes increases the probability of your connecting with jurors and getting what you want (e.g., candid disclosure).
4. Use a Questionnaire
A juror questionnaire (approved by the court) can allow counsel to learn about potential jurors in advance (or at least at the outset) of jury selection. Questionnaires are especially useful in complex cases, as they allow the efficient collection of a large quantity of information. They can also be useful in simple cases, however, as they also facilitate focusing on the issues most important to the case.
5. Find and Follow a Methodology
Counsel usually learns the identity of potential jurors and something about them immediately before having to question and exercise challenges concerning them. Devising a methodology to organize, follow up regarding, and make decisions based on the information gathered in jury selection can go a long way in increasing the probability of selecting the best possible jury. Consider, for example, a preprepared chart (with a familiar layout) on which facts about jurors can be depicted in codes, such as “Md” for married. Simpler is usually better, but the key is to find a system that works for you.
6. Question Carefully with a Purpose
Jury selection is generally the only time during trial when counsel may specifically address individual jurors and ask non-rhetorical questions. Questioning potential jurors is a tricky exercise (even with use of a questionnaire and a good selection method). Obtaining the most useful information often requires asking difficult and sensitive questions, which runs the risk of alienating jurors. Thus, it is usually advisable to question potential jurors only where necessary to achieve a specific, important purpose (e.g., to establish rapport, to rehabilitate, invite disclosures) and to do so cautiously. There is no point in wrestling information from a prospective juror in a way that prejudices him against your case.
7. Avoid Argument
Most, if not all, jurisdictions forbid argument during jury selection. While there is a fine line between impermissible argument and permissible advocacy, it is especially wise during jury selection to err on the side of caution. A sustained objection can create an early and bad impression that counsel does not play by the rules. Moreover, some jurors are not ready during jury selection to receive argument on the merits.
8. Make a Good First Impression
As the first interaction between counsel and jurors, jury selection is the first opportunity to make an impression on jurors. Everything said and heard in jury selection affects jurors’ perception of the case. Jury selection should be conducted to make a good impression, consistent with counsel’s theory of the case.
9. Beware of “Conventional Wisdom”
Jury selection can devolve into the application of supposed “truisms” or “rules of thumb” about how certain types of jurors are likely to vote. In fact, there is little empirical evidence for most of this “conventional wisdom”. While it would be unwise to ignore it altogether, these “truisms” and “rules of thumb” should be used carefully. There is no substitute for preparing a case-specific juror profile, questioning jurors to figure out how they match up against that profile and exercising good judgment.
10. Use Challenges Wisely
Counsel’s principal means of influencing the composition of the jury is through the exercise of challenges. Challenges cannot be exercised on the basis of impermissible classifications such as race. How they are exercised usually depends on how jurors compare to counsel’s profile of preferred jurors. Care should be taken not to stretch too far to show cause; the upside rarely compensates for the resulting loss of credibility with the Court. Peremptory challenges are generally best reserved for those persons most likely to be influential with other jurors.