Fanciful Technology Aside, Bull Gives Realistic Portrayal of Voir Dire Seed-Planting
Pinch me. The voir dire questioning in this week’s episode of “Bull” was actually something I can sink my teeth into. At least as far as the Hollywoodization of jury selection goes.
This week’s storyline centered on a Securities and Exchange Commission (SEC) federal criminal trial where a millennial-ish entrepreneur named Whitney was facing a long list of fraud charges. Her trusted R&D engineer had walked out on his job and blew the whistle, alleging she was knowingly making false claims to investors.
If you’ve been in federal court in Texas, you know jury selection is (generally) short, quick, and to the point. And judges are extremely protective of juror privacy. So, when the hi-tech Wall of Jurors appeared, I couldn’t help but giggle.
Bull’s team has über-fancy screens that display larger-than-life photos of all the venire members. Either the parties receive the jury list days in advance (unlikely), or this technology is able to data-mine within nanoseconds. The projected info includes Social Security numbers (!!!), employment history, voting behaviors, social media posts, online footprints and copies of drivers’ licenses and photo ID cards – all compiled seemingly instantaneously. Even better, Bull is able to communicate with his team back at the office across town via earpiece. During voir dire.
Yeah… that never happens. #duh
As unrealistic as the technology is, the strategy behind some of the defendant’s voir dire questioning was – again, pinch me – pretty darned good, all things considered. I’m not convinced a federal judge would ever give counsel as much leeway as Benny Colón had, but for the sake of argument, let’s assume it happens.
Benny struggles to find a good legal defense; after all, Whitney was raising loads of capital for a product that did not exist. Bull went with an “anything is possible” theme: if they could prove that Whitney believed her product could do what she was promising, there would be no criminal intent to deceive investors. Benny rolls his eyes and defers to Bull. [SIDE NOTE: In the consultant-lawyer dynamic, jury consultants should advise and let the lawyers decide.] Benny questions how he’s supposed to find jurors who believe in something that doesn’t exist, and Bull’s answer: reframe the jury’s focus.
Time permitting, I always encourage my clients to use a portion of voir dire to plant seeds. Or, to reframe the narrative. Focusing on the issues you want jurors to consider when hearing the evidence can be critically important. Think of it as handing jurors a pair of lenses through which to evaluate the story. You want jurors to view things from your perspective, not opposing counsel’s.
One way to reframe the narrative in voir dire is to develop creative ways to assess how receptive jurors might be to the concepts and constructs of your trial story (not just the legal elements). Seek to identify jurors who are unlikely to buy into your themes and story, and do what you can to keep them off the panel.
Rigid v. Open-Minded Thinkers
Benny spends some time flushing out the rigid black-and-white thinkers and identifying jurors who seem at least open to possibilities – using flying cars. While seemingly random, the underlying concept helped gauge a juror’s willingness to consider the seemingly impossible, which was a core defense theme. Flying cars was not only fun for jurors, but the content was so far removed from the actual facts of the case that the Q&A would likely be fair game in most courtrooms.
“How many of you think there will be flying cars someday?”
“In your lifetime?”
“If you answered yes, where does your fanciful optimism come from?”
One of the venire members who spoke up just so happened to be a venture capitalist, who years ago turned down an opportunity to invest in a business that wanted to sell books on the internet. At the time, it seemed impossible. Today, we can do it from our phones.
And because it’s Hollywood, this juror ultimately served on the panel. In the real world, opposing counsel would have immediately struck this juror. Lucky defense team.
School of Hard Knocks v. Formal Education
The education, experience and job history of witnesses in any trial impacts how jurors perceive their credibility, and it was a key issue in this “Bull” episode.
Because the trial team needed jurors to believe “anything is possible,” they needed to seat jurors who could believe the defendant had the smarts, gumption and know-how to actually deliver the product the SEC (and her ex-employee) claimed was nothing but a pipe dream. Whitney never went to college, and the trial team was concerned jurors would have a difficult time believing someone with nothing more than a high school diploma could actually bring such a lofty vision to fruition.
Expecting the feds to harp on Whitney’s lack of education and formal training, Bull wanted to use voir dire to minimize the influence power of that attack. Benny cited Henry Ford, Steve Jobs and Coco Chanel – each of whom revolutionized their fields even though none of them had the kind of specialized training one would expect of a visionary. It seemed like an out-of-left-field line of questioning, but it was designed to find jurors who simply could not accept the possibility someone with limited education and no specialized training could ever change the world. The trial team was subtly reframing the narrative from “lies and deceit” to “possibilities and ingenuity.”
The trial team seated a jury and viewers got to watch a few realistic courtroom scenes, including one involving the cross-examination of the whistleblower: Benny tried to portray him as a guy who is using the courtroom to fatten his wallet without having to do any work. Another was the cross-examination of Whitney, whose CV was a veritable web of lies. Not exactly what you want jurors to consider when they’re trying to determine whether she committed fraud. Once a liar, always a liar?
Fast-forward to the predictably unrealistic resolution: a hung jury, with one juror refusing to convict. The judge grants a mistrial and asks Dr. Bull when he’s available to retry the case. (Since when do courts accommodate jury consultant schedules? If only.) He lies and says “seven months.”
Bull, Benny and Whitney exit the courthouse as Bull explains to Whitney he just gave her the gift of time: seven months to make her pipe dream a reality. As she’s bemoaning the fact she has no money left and investors are running the other direction since the fraud claims, a Hollywood miracle occurs.
Waiting outside the courthouse is Mr. Venture Capitalist. He announces he was the holdout juror (shocker) and is interested in her product. He hands her a business card and says he’d like to invest and help her raise capital.
This miracle juror either just got in the ground floor of the Next Big Thing or he is going to lose big bucks on a bag of magic beans. This week’s episode didn’t feature a leap to the future, like last week’s did, so we don’t know how his investment fared.
Will Whitney pull off her miracle in seven months? If she does, the chances of a conviction will probably fly out the window. Who knows? But, if nothing else, Bull proved the worth of seed planting. It didn’t get him the acquittal he wanted, but it kept his client out of jail… for now. And that’s a win.
This article was originally published by Texas Lawyer on October 3, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.