Jury Selection: a Few Points on Voire Dire and Trial
A. How Jurors Learn – Structuring Your Case Theory
- From your initial interview with the client, you should begin thinking about your discussion with the jury. What are the strengths/weaknesses to be addressed?
- One good tool is reducing the substance of your case to one sentence. Think of a tweet which describes the essence of your case.
- When you have your tweet, you can build around it in jury selection, in your opening, during your proof and in your summation. It is not necessarily the facts or law, but what is right about a finding for your client.
- Jurors learn by listening and seeing. Sitting in the jury box listening without being able to get up and move for a long time gets boring. Try breaking up the testimony in different ways by including visuals. When appropriate, ask the witness to explain the exhibit to the jury and what it means. In addition to keeping the jurors attention, it helps the jurors understanding and it helps build credibility between your witness and the jurors.
- Demonstratives can be as simple as x-rays, photos, or documents. In some cases you need videos, graphic simulations devices, models, reconstructions, etc. The demonstratives allow the jurors to become more involved and less passive in the process.
Your Witnesses’ for Testimony
- When ranking things people fear most, public speaking ranks higher than the fear of death. Keep this in mind. Witnesses will likely be nervous. This is okay, the jurors will understand. Explain to your witnesses the need to look at and talk to the jurors, and hopefully build a connection.
- If necessary, discuss with your witnesses how they should dress. This is a very common question among people going to court.
- Explain cross examination, objections.
- Explain the importance of not assuming or guessing.
- Find stories to tell, simple truths.
o Example: The plaintiff takes care of her family, worked hard, coached her daughters team, followed the rules, created a life for herself and family, one she was proud of and then… this happened to her.
- If possible focus on the other side’s choices. Commissions are worse than omissions.
- Explain damages through lay witnesses.
o Example: Have a neighbor or relative testify, tell a story. Have them explain how your client used to work in the garden, play football in the yard with the kids, go for runs…
- Address the weakness in your case.
Opening Statements and Closing Arguments
- Opening statement
- Explain process – briefly.
- Explain evidence; think of Joe Friday in Dragnet, “just the facts ma’am.”
- Explain evidence through witnesses’ testimony.
- Explain evidence through visuals.
- If visuals are in evidence, use them in your opening.
- Do not attempt to persuade/argue your case in the opening.
- Closing argument
- Give the jurors a way to feel good about finding for your client.
- The final argument is made in the jury room.
- Arm your favorable jurors. Many people are not used to
expressing beliefs or opinions contrary to others or challenging the position of another.
- Arm your jurors by giving them truths in the case, universal truths to help them argue.
- These are the rules of the case; we all have to follow rules. This can be made into a very good discussion about the opposing party not following rules. It helps the jury understand why they must find against the rule breaker.
- Spend some time in your closing on the key instructions such as burden of proof. Arm your favorable jurors on the standard in a civil case.
- Remind them you are allowed to have all the doubts you want, plaintiff has to show it is just more probable than not. Only more probable than not, beyond a reasonable doubt, evidence does not have to be in black and white, only more likely than not.
- Discuss proximate cause (PJI 2:70). There may be more than one cause of an injury, accident, or occurrence but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it.
- Explain/show the jury verdict form.
- talk about the harms and losses.
- Explain the mechanism of the injury.
- Surgery? Explain it. Don’t understand it? Google it. The same holds true for other injuries.
- Explain how money will make a difference.
- Explain why a verdict is important. The case is bigger than just your client.
- Let the jurors they could ask for the judge’s instructions to be reread, if the instructions are unclear other jurors,
- Let them know that testimony can be read back if there’s questions about what was said during the trial,
- They can bring the evidence into the jury room and examined it.
- Let them know they should have a verdict they will be proud of.