2nd Jul 2013
The objective of jury selection is not to win your case, but rather to find a jury who will be open and listen to you, your client, and your evidence. If that’s what you are looking for in a jury, then you may need to reconsider how you approach selecting a jury.
Too many lawyers mistakenly believe that jury selection is a time for advocacy, making your position points, and yes, winning your case.
Others, usually insurance defense lawyers, tend to use voir dire aka jury selection to elicit promises from the jury, put them in a box even tighter than the jury box, and bind them to the oath such that to be “fair and impartial” is the same as a defense verdict with all injured claimants as liars, cheats, and fakes with the trial as nothing more than a high stakes lotto.
And others even admit that the purpose of selecting a jury is not so much as finding a fair and impartial group who will not only adhere to the rule of law and consider only the evidence before them and not be swayed by sympathy or charity for the plaintiff who “claims” to have been injured, but rather “I want a jury who will give my client a favorable verdict.”
Yes, each lawyer wants to win, and although he or she may harbor hopes of a jury who will side with their case, every lawyer knows that is not how it works and in their heart of hearts that is precisely what they do not want. The better lawyers know not confuse the purpose with the process. A juror who will side with their case, their client, and their cause is just as much a danger as the juror who would go the other way. Both are a danger to the right of a fair trial guaranteed by our Constitution.
I like what famed trial lawyer Moe Levine has said on jury selection. Your objective in selecting a jury is “not to win your case. You can’t win it in selection of the jury. You’re gonna win your case during the main case: through the proof, through the evidence, and through final argument.” Moe Levine On Adovcacy II, page 45. Moe stated he tries to neutralize them which simply means to me to find jurors who will give you and your client a fair shake, to open their minds to the evidence, to the issues, to just plain ol’ listening.
It may be a hard pill to swallow, but all of us have biases, favorites, perceptions, beliefs, values, hopes, dreams, and the list goes on because all of us have lived lives consisting of accumulated experiences. It’s been said that no matter where you go, there you are. Thus, every juror brings who they are to the jury box. You can’t ignore it, but you can deal with it. And those jurors who won’t follow the law for both sides should not be sitting, and no lawyer, regardless of which side of the case they are on, wants a bad juror.
The reason we select juries from the community where we live is for the simple reason that a jury represents the “conscience of the community.” You – lawyer and litigant alike – would want nothing more, nothing less. That is the real objective of jury selection.