Criminal Justice

How Lawyers Pre-Try Cases During Jury Selection

Reason was warning you about this 12 years ago

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Justice, Brooklyn style. |||

In a piece yesterday about jury duty, I wrote about the odd and occasionally ideological cross-examination of potential jurors in the pre-trial process, and mentioned that Contributing Editor Walter Olson of Overlawyered fame came up in conversation. In response, Olson informs us that A) "I've had multiple reports of people bringing my books with them to the courthouse so as not to be picked for a jury," and B) he wrote a crackerjack piece for Reason about the jury selection process in 2003.

A bunch of stuff Olson flagged there was mirrored in my experience; I'll bold the most pertinent bits:

Demography aside, a major goal of the selection process is the removal of any jurors with too strong a base of experience, knowledge, or opinion about the case's subject matter. If a case presents important medical or accounting issues, for example, lawyers on one or both sides probably will want to get rid of jurors with expertise in those areas.

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The Court Street lawyer in my civil case, who dominated the jury-selection proceedings (as plaintiff's counsel often does), practically came out of his chair whenever any prospective juror so much as copped to having a relative in the medical industry. He was very anxious about whether they had heard of obscure medical terminology related to the injured body-part in question, and wondered whether people would be able to handle the dissonance of medical professionals disagreeing with one another.

Manuals emphasize the importance of excluding potential "opinion leaders" for the other side. "You don't want smart people," says a Philadelphia prosecutor in an old training tape. "[They'll] analyze the hell out of your case."

During my process, there were eight of us screened to fill three slots (one on the jury, two alternates). Of our eight, I would put three in the "potential opinion leader" category based on their answers, careers, and personality; none were picked.

One reason pretrial questioning takes so long is that lawyers routinely use it as a way to begin arguing their cases, planting assumptions and factoids that might or might not be admissible at trial. […]

Worse, some courts permit lawyers to "get a promise" from jurors: If I show A, will you agree to conclude B? Adler quotes one trial lawyer who got jurors to assure him that they could return a "substantial verdict" if he showed thus-and-such; after getting general assent from the panel, he proceeded to call out individual jurors' names: Were you on board? And you? Each, in turn, meekly assented. "The psychological research is very convincing that getting a promise does, in fact, work," an enthusiastic jury consultant told Adler. "If you give them positions, they adopt them."

This would have been shocking if it wasn't so blatant and kind of funny. The lawyers (especially though not only the plaintiff's), working in a courtroom without a judge present, reminded us that OF COURSE we wouldn't be trying the case here, and NONE of this should be considered as evidence, but JUST TO SET THE SCENE of this trial, the plaintiff intends to show that the defendants created a dangerous condition to cause injuries so devastating that we can't even get into them here, and so on. One of the defense lawyers, meanwhile, wanted to make sure—by stressing it to each of us eight prospective jurors, and probably a couple other times as well—that we were at least OPEN to the POTENTIAL argument that person responsible for the injury was actually (drum roll)… the plaintiff. 

As for that "promise"—both sides repeatedly tried to elicit such promises from each individual juror. It was textbook.

Reason on criminal justice here.

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59 responses to “How Lawyers Pre-Try Cases During Jury Selection

  1. Any truth to the rumor that a disproportionate number of jurors are government employees?

    That rumor always bugged me for a number of reasons.

    First, you guys know about GEICO, right? It stands for Government Employee Insurance Company. The guy that started it was an actuary that realized that government employees have far fewer driving accidents than the general population. The reason is because a) they tend to be meticulous about following rules and b) they’re really good at obeying authority and the authority tells them to not go over the speed limit, etc.

    To me, both of those qualities seem like liabilities if you’re looking for a fair jury–especially in criminal trials. If it’s the government against Ken Shultz, isn’t a jury of obedient government employees already biased against me? Aren’t they prone to do what the District Attorney and the prosecutor’s office say–with all meticulousness? If that comes through in their driving habits, why wouldn’t it come through in their jury deliberations?

    Not to mention, if I were accused of a crime against Microsoft Corporation, would it be fair both the prosecutor and the jury were all employees of Microsoft?

    1. First, you guys know about GEICO, right? It stands for Government Employee Insurance Company. The guy that started it was an actuary that realized that government employees have far fewer driving accidents than the general population. The reason is because a) they tend to be meticulous about following rules and b) they’re really good at obeying authority and the authority tells them to not go over the speed limit, etc.

      5 minutes driving in and around DC says this is bullshit.

      1. Decades of the resulting competitive advantage before they grew so big to become a dominant insurance company that opened up polices to non-government employees suggest otherwise.

        I grew up in DC.

        If the drivers downtown suck, it may be because they’re so damn meticulous.

        LA has the best high speed drivers in the world, and I think that’s in no small part due to the fact that no pays any attention to the speed limit.

        1. LA has the best high speed drivers in the world, and I think that’s in no small part due to the fact that no pays any attention to the speed limit.

          Yeah, sitting in gridlock for 4 hours really sharpens the skills.

          1. Four hours?!

            I can make it from the Beach Cities to the airport in 45 minutes during rush hour.

            LA drivers can go 75 mph on the freeway–when they’re bumper to bumper.

            I can make it from the Beach Cities to Santa Clarita in an hour and a half and from the Beach Cities to Temecula in a little more than that.

            Four hours?!

            It doesn’t take four hours to drive anywhere in Los Angeles from anywhere else, and, again, a large part of that, I think, is because LA drivers ignore the law.

      2. MD, in front of every line of cars in the DMV you will more often than not find a maryland driver mucking everything up.

      3. Funny even bringing up “b” so soon after the Amtrak accident.

        1. I think I know what you mean by that, now…

          My bet is still that they find that “procedures were followed”.

          These kinds of foul ups often aren’t the result of government employees not following procedures.

          They’re often the result of government employees not being able to think for themselves.

          When I make fun of the defense that “procedures were followed”, it isn’t because I think they’re lying. It’s because I’d fire people for following procedures if thinking for themselves, instead, might have saved the lives of a dozen people. I make fun of that because meticulously following procedures no matter what is stupid and evil–and, yeah, government employees are really good at meticulously following procedures no matter what.

    2. The law is the law. If you don’t like it, vote for someone who will change it. Doesn’t matter how stupid or unjust the law is, it’s the law and you are to obey. Period. Everyone knows this.

      1. They’re so good at following rules and just doing what they’re told? that two-thirds of them could be replaced by a couple of really short shell scripts, and I doubt hardly anyone would notice.

      2. It wouldn’t be at all surprising seeing this stated in earnest by Tony. Blinkered appeals to authority or process to excuse bad policies or laws he likes, rather than defending their merits.

    3. Any truth to the rumor that a disproportionate number of jurors are government employees?

      Interesting question, I wonder if there is any info on this. I have never been on a jury, although I have been called.

  2. Those youts are innocent!

    1. “I-*claps hands*-dentical!”

  3. P.S. The right to a jury of your “peers” is supposed to mean that the people who consider whether you’re guilty–are not supposed to be the government.

    You can willingly waive that right if you please, but “a jury of your peers” is supposed to mean you have a right to a jury that does not consist of the government.

    I’m not convinced government employees should be allowed to serve on juries.

    1. Some aren’t allowed.

      But the gov makes damn sure that its employees are paid while they’re on jury duty. Private sector, not so much.

      1. 66 percent of private workers have access to paid jury leave:

        http://www.bls.gov/opub/btn/vo…..-years.htm

  4. My one time at jury selection, I didn’t make it past the stand-up-if-you-etc stage, but there was still a judge present. Is that not universal across the states?

    1. Nope.

  5. OT: Not sure if this was posted elsewhere.
    http://www.kmov.com/story/2904…..-handcuffs
    One more nut punch for you.

  6. This is why I have decided that if I am called to jury duty, I will lie about (or at least obfuscate) my positions. I have no respect for the lawyers in these cases and do not see their efforts to pick only the most uneducated and unknowledgeable as contemptuous and treasonous.

    1. Easier said than done. If they are able to pick up on your having even average intelligence, let alone above-average intelligence, they’ll drop you like a hot potato. The last thing they want is people who are capable of thinking.

      1. I have found that working in the insurance industry (regardless of what capacity) helps too.

        1. Wear a suit. No lawyer will pick a juror who wears a suit when it’s not required.

    1. Not surprising, as that seems to be the tradition with Celebrity Jeopardy. Every now and then, I like to watch the video of Andy Richter absolutely dominating Wolf Blitzer.

      1. I imagine that news casters would be at the absolute bottom of the barrel. Anderson Cooper might be average, but that’s it.

        1. Oh what, because he’s gay!?!??!?

  7. I got on a jury once on a civil case long ago. I didn’t say anything more than I have to and no signs of disagreement, but I don’t recall being really grilled either. After the trial was over, the plaintiff came to us outside the courtroom and chatted a bit. He told me “I knew I shouldn’t have picked you!” and said straight up as rule he tries to avoid all engineers and technical persons. I was naive back then about the legal system so that was an eye opener.

    1. edit: *the plaintiff’s lawyer*

    2. and said straight up as rule he tries to avoid all engineers and technical persons

      So he avoids people with critical thinking skills.

  8. They should kill off Voir dire. Ask a set group of questions to make sure the jurors don’t know the parties involved or have set opinions that prevent them from making a fair decision and that is it.

    1. Agreed – the Supreme Court basically abolished preremptory challenges by requiring the lawyers to justify them when accused of racism – which eliminates the point of preremptory challenges and lengthens the pretrial proceedings.

      So just allow challenges only for cause – meaning actual risk of bias.

      1. Your comment assumes that the only reason lawyers used peremptory challenges was for race, which is not accurate. Peremptory challenges are alive and well and used in every trial, so you may need to re-read Batson v. Kentucky.

        It may not matter though – judging by the general comments in this thread, I see plenty of challenges for cause.

    2. Voir dire has become the greatest corruption of the notion of being tried by a random selection of one’s peers .

      I was in the jury pool in Lower Manhattan once for what turned out to be a crack buy and bust on the Lower East Side .

      They pulled us one by one into a separate room to question us and we were out of there if we either disagreed with the State’s drug war in which it is not only the judge and prosecutor , but also its own plaintiff , or simply believed the capitalist notion that if it is illegal for someone to sell something , it must be equally illegal for someone to solicit and buy that something – so why wasn’t the cop on trial too .

      BUT , and this is what really struck me , we who were “excused” couldn’t go back out thru the jury pool room , possibly “contaminating” the remaining pool by their seeing who and how many were being rejected , but had to use a separate side exit down a long hall .

  9. Did you say yutes?

    And yep, same experience at my jury duty last year. I think the “promise” method came up a few times, and since I was there for all of the interviews, I picked up a lot of the patterns that both sides were using. It was clear why their questions circled back to certain people, and there was that tip-toeing around what the case was about and what would be presented. “We’re not trying this case now, but if you heard this testimony and found the witness credible, would you convict?” kind of stuff.

    1. It’s not as dumb a question as you might think. There are people out there who will answer, “Only God can judge.” Another good one is, “Does the fact that the police have arrested my client lead you to believe that he’s probably guilty?”

  10. Feeling better about throwing away my summons, they’d just bounce me anyway.

  11. In fairness to the practice of weeding out experts and the opinionated laity, I would be reluctant trusting my case in the hands of one or a few individuals who can parlay their expertise, real or imagined, into swaying other jurors against me. Yes, many issues are complex and technical, but it’s the lawyers’ responsibility to boil down the complexities into comprehensible moral and legal precepts. An expert could easily deliberation.

    1. ^easily dominate

      *grumbles*

    2. Why shouldn’t the expert dominate deliber’n? Somebody will, that’s just human nature, so why not the expert instead of the loudmouth?

      1. Because an expert can claim knowledge outside his ken, like legal or moral implications of the alleged crime, and make life difficult for anyone with a differing opinion. Because you’re gambling already that your attorney is competent, that a random selection of the public won’t feel personally compelled to see you punished, and that the evidence exonerates the crime. There’s not much benefit to introducing potential opinion leaders, especially jurors to whom the prosecutor didn’t object. The entire process seems rigged for reasons other than weeding out potential kingmakers.

  12. I just want to make it very clear:

    If you throw away the summons that you get in the mail, nothing will happen, and you won’t get another one for a year. They send them to dead people and felons all the time.

    There is NO proof that you received the summons until you call the phone number on it. None.

    Use that information how you wish.

    1. *casts about slyly* So you’re saying… bomb the capitol building?

    2. I was curious about that. Still I went, mostly because it was a day off from a job I was working 60-70 hours a week at.

      1. There’s a legal presumption that properly addressed US mail was timely delivered by the post office. If you swear in court that you didn’t get a jury summons, you might not get cited for contempt. But first you’ll get arrested and have to explain yourself to a judge.

        They don’t do it routinely, but periodically they crack down on people who’ve ignored jury summonses. It’s not a risk-free decision.

    3. If you ignore a SUMMONS, you could be in trouble. But you can ignore the QUESTIONNAIRES that come in regular (non-certified) mail, and that way you are unlikely to ever get an actual summons. I’m 48, and that’s kept me out of jury duty so far.

      That said, someday I’ll cooperate, in hopes of getting a chance to nullify in a victimless crime case. That will be doing my true civic duty.

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  14. I got out of Jury Duty very quickly, on the grounds that I was only a permanent resident.
    Durham, NC represent.

    (I would like to see the number of perempts reduced, and a narrower range of causes, but hard to make changes that don’t make things worse . If you are unable to be impartial, then you have a duty to avoid wasting one side or the others challenges ; on the other hand, one needn’t go out of one’s way to *volunteer* how fully informed a juror you might be) .

  15. I want a judge if I’m innocent, a jury if I’m guilty.

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  17. A jury is actually one of the best ways for a person with libertarian leanings can have an influence on the system. Even if it is a PITA, it’s worth doing.

    1. I hung a jury in a federal narcotics trial. The case wasn’t re-tried.

  18. A refreshing albeit OLD, DATED joke about fair jury selection:

    Knock knock.
    Who’s there?
    O.J.
    O.J. Who?
    You’re on the jury.

  19. Lawyers will also trade off cases, agreeing to deliberately lose one in exchange for their pal doing the same in return.

    Injured in an auto accident? Research the lawyer you choose. You do not want one that has ever been on a case on the side of the insurance company the other party in the wreck gets insurance from. Your best bet is a lawyer who has never ever worked with any insurance company to help them avoid paying off on a policy.

    You’ll also want to know about the law office staff. Insurance companies are not above insinuating moles into law firms to collect information on cases people have brought against them. Find out if anyone working for your lawyer has ever worked for the insurance company you’re trying to make pay, or if they have policies with that company. If any do, make it very clear that you do not want any of those employees looking at anything to do with *your* case.

    If you do find out that any confidential information that there was no legal obligation to provide to the other side has been given to them prior to presenting it in court, contact your State bar association and file a complaint. Also find where to report legal ethics violations.

    1. There are honest lawyers who *will* do everything they can to actually win your case. The trick is finding them.

      What I would dearly love to see banned are those “referral fees” (kickbacks) that all those law firms putting ads of TV make their living from. Look at the fine print and you’ll see exactly where the firm is really licensed and a note that outside those areas you’ll be referred to another firm. If you agree to have that other law firm take your case, they pay a “referral fee” to the firm that put the ad on TV.

      Lawyers and law firms should not be allowed to advertise outside the State or other jurisdiction they are licensed to practice in. Local TV and newspapers can “bleed over” to surrounding areas but putting ads on nationally broadcast television shows should not be allowed to lawyers. The *only* reason for law firms to place such national ads is those “referral fees”. They should have to actually work for their pay. There is precedent for such a restriction. In the US, patent attorneys are not (or didn’t used to be) allowed to advertise their services for filing patents and litigating disputes.

  20. There are courts where the judge does not preside over jury selection? Wtf?

    I don’t object to leaving experts off the jury. Their testimony can’t be cross examined during jury deliberation and we all know that experts are often wrong.

  21. Yeah, I tried to dodge jury duty once by making it clear I was a law school grad who’d passed the bar but decided not to practice law. I figured either the prosecutor would bounce me (because I’d adhere to the BRD standard) or the defense would, (because I wouldn’t buy emotional arguments).

    Neither one did.

    Then the case was dismissed because the prosecutor screwed up and forgot to subpoena his start witness. Oops!

  22. Based on your sample size of three? Nice hasty generalization. It would have been an interesting enough (and more accurate) article to say that this happened in your particular case, but it’s sloppy logic to assert that this is how all lawyers conduct voir dire. Reason usually goes deeper than just beating up a straw man. Sorry Matt, but this isn’t your best work.

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