As much as I hate to admit this, I have a confession to make: When I received a jury summons in the mail a few weeks ago I let out an audible groan. This jury consultant was a prospective juror. Don’t get me wrong, I am a huge supporter of our jury system and feel truly blessed to live in a country that affords us the privilege of serving. On the other hand, it really can be a royal pain.
Monday morning, I schlepped down to the courthouse with the other fortunate souls holding a summons. Parking is a bear. There are no signs to direct anyone anywhere. People haven’t a clue how to navigate through security efficiently and quickly. The court officers treated people like they were in elementary school. In fact, when instructed to form a straight line, the woman next to me mumbled, “What is this? Kindergarten?” Complete strangers were bonding, not because of friendship or similar interests but because they shared one common feeling: sheer frustration.
By the time we reached our assigned courtoom, we had been waiting more than 90 minutes. But finally, we walked through the doors. In a single file line… in numerical order… in complete silence.
The back row
I was number 29 in a panel of 36. The odds were slim to none that the parties would even need to consider striking me, but I was a prospective juror nonetheless and I truly wanted to be part of the process. Only, I wasn’t.
Professionally, I understood the logic. I understood the strategy. I totally got it. Why would either side want to risk seating a seasoned jury consultant on their panel? And depending on the number of strikes afforded to each side, simple math may have rendered me irrelevant. But when I took off my jury consultant hat and just experienced the process as an ordinary citizen? I had the same emotional reactions that I work so hard with my clients to avoid. I felt ignored. Excluded. Unimportant. Irrelevant. Disinterested. Annoyed. These are not feelings you want any juror on your potential panel to have. Because guess what? That person may very well end up on your panel.
Here’s a secret. There are two very simple tools you can implement in your voir dire strategy that don’t require a complete rewrite of your outline, extra time from the Court, or a magic transformation of your style or personality.
No matter how large your panel, effort should be made to foster a sense of inclusion for all jurors. This does not mean you need to individually speak with every single person on the panel– strategically, you won’t want to. Nor will you have the time. But, the simple act of using a targeted exchange with one venire member as a tool for engaging the entire group is simple and the benefit is two-fold. (1) It requires jurors to participate (which facilitates inclusion); and (2) it might even result in helpful data.
Mrs. Smith just expressed a feeling that she would rather hear testimony about the plaintiff’s injuries from a licensed medical doctor than from a chiropractor. How many of you tend to agree with Mrs. Smith?
A quick raise of hands (or number cards) is all you need. But be sure to encourage jurors to actually raise their hands. Simply tossing the question out and allowing the panel to just sit there without responding does nothing.
Help me listen
I also found myself feeling distracted, antsy and basically inattentive. Sure, I was listening for any cues that might require my attention, but for the most part, I was busy creating a mental to-do checklist. Creating an atmosphere for inattentive, daydreaming jurors is — to be blatantly candid — an avoidable mistake.
Sure, you will always have a few jurors who just zone out, but most want to feel engaged and part of the process whether by verbal or nonverbal responses. Jurors who fail to actively listen will be less likely to identify with you, your client or your case themes. And because they’re simply not engaged, they’re more likely to unintentionally withhold what could be valuable information in your overall assessment of who’s a keeper and who’s not.
Keep the panel on their toes by implementing the looping technique. It’s simple. It doesn’t require a lot of time or thought. And it encourages active listening by all panel members. After all, there’s no telling when you might be called on, and nobody likes to feel put on the spot.
Mr. Jones, thank you for sharing your thoughts on pain and anguish damages. Mr. Anderson, how do you feel about what Mr. Jones just said?
If Plaintiff or Defendant counsel had utilized either one of these techniques, I guarantee I would have felt like a more active participant in the voir dire process. I would have been listening more carefully to what the attorneys were asking and what other prospective jurors were saying.
As you might guess, I was not selected as a juror. However, Juror #12? Sat right next to me. I was one juror away from strike consideration. Had the attorneys encouraged more participation and elicited some simple group-wide responses, they may have discovered a few very interesting tidbits about my predispositions and beliefs.
But nobody asked what I thought.