How Lawyers Pre-Try Cases During Jury Selection

Reason was warning you about this 12 years ago


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.

A face you can trust. ||| Cato

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.