The Art and Science of Jury Selection

Any experienced litigator would agree that jury selection is an art and not a science. However, in order to be a good artist, it’s extremely important to understand the science of a jury.

Recent studies on jury psychology have provided litigators with an invaluable look into the decision-making process of jurors. By studying countless mock jury verdicts and analyzing hundreds of actual post-jury verdict interviews, we understand that there are three main drivers that lead jurors to a verdict in a particular case: 1) Likeability; 2) Prior Experiences and 3) Preconditioning. It is an understanding of jurors’ decision-making process that should guide you in your jury selection strategy.

Likeability
First, jurors form decision in a case based upon likeability. Jurors will find for one side or another based upon how much those jurors like you and your client. This long-held belief by many trial attorneys about likeability is supported by a study conducted in Trial Diplomacy Journal. Sanito and Arnold reported on a study of 600 jurors who were interviewed after they had reached a verdict in different cases. The one issue that was similar amongst all 600 jurors interviewed as a reason for why they reached a verdict was that they “liked” the lawyer that they found for more than the opposing lawyer.

Prior Experiences
The second main factor that leads jurors to a verdict are jurors’ prior experiences, attitudes, values and beliefs, and how these factors relate to your case. Again we know from our study of jurors that they enter the courtroom and then filter all information presented to them in the case through these factors. Therefore, jurors are not simply basing their verdict on the facts presented to them, but rather processing the facts through the filter of their prior experiences. For instance, jurors frequently in employment, personal injury or medical malpractice cases spend up to 50% to 60% of their time in deliberations talking about their own personal experiences.

Preconditioning
Jury selection provides the opportunity to precondition jurors to the key issues in your case. We know from jury research that jurors start to form decisions about a case from the first moment that they hear about the case. Jury selection provides us the opportunity to precondition jurors to our case themes.

As mentioned, understanding the science of the jury’s decision making is only half the battle. To be effective in jury selection one must apply the art of jury selection. Below are suggestions that are designed to assist in the art of jury selection.

Likeability
Will they like me? We need to understand that most jurors experience a high level of stress during jury selection. A good jury selection artist will start the jury selection process by making the jury feel comfortable. Each lawyer has his / her own style, and we have seen everything from story telling and jokes, to divulging embarrassing stories about ones self to ease jurors’ nerves. The key is that jurors need to feel comfortable before they divulge their feelings about a particular life experience. It is your job as the questioner to make jurors feel comfortable enough to answer your questions. Remember, its jury selection and not cross-examination.

• Talk to jurors, not at them, and listen to and care about the responses they provide. Subtly match jurors’ body language, style of speech and tone. Use your personality in any way possible to win over the jury (don’t be obvious about it!!!).

Prior Experiences
De-selection. A biased juror can sway an entire jury to his / her side of the case. You must use voir dire to ferret-out biased prospective jurors. Rather than relying on a person’s demographic background as the sole indicator of whether he / she is good or bad for your case, it’s much more telling to ask jurors open-ended questions to determine their prior experiences. Before you step into the courtroom, know what biases you are looking to expose. This can simply be done by understanding the issues in your case that will trigger a bias in a potential juror. When evaluating these issues in your case, take into account jurors’ prior experiences, values, beliefs and attitudes. Remember, it is better to hear that a jury is biased before a verdict is entered, so don’t worry about “tainting the jury pool” by asking a de-selection question.

• Open-ended questions: When asking a de-selection question, make sure that it is open-ended. Open-ended questions allow jurors to share their beliefs with you and hopefully divulge information that can assist in de-selection.
• Reinforce: Complement jurors for giving honest answers that reveal their biases. This will encourage other jurors to also give honest answers.
• Survey: Immediately after you reinforce, ask the other jurors whether they agree with a particular juror’s response. Your goal in asking for jurors who agree is to identify jurors with similar biases. You should then ask these biased jurors to share their experiences.
• Confirm: Confirm jurors’ biases and get jurors to commit to their bias. To successfully challenge a biased juror, you must highlight his or her prejudice for all to see.
• Eliminate: Once you confirm a juror’s bias, they should be struck for cause immediately. Don’t let biased jurors hang around.

Preconditioning:
Key Themes. When the opportunity presents itself, you should attempt to precondition jurors to the key themes in your case. This should not be done by lecturing the jury, but rather by embedding your themes in the voir dire questions. For instance, in a personal injury case where you are representing the defense and one of your main themes in the case is the plaintiff’s failure to take responsibility for his / her own actions, you may precondition jurors to this theme by asking: Does anyone believe that a person should not have to take responsibility for their own actions? Most likely no one on the jury is going to agree with this question. In turn, you have preconditioned the jury to a key theme in your case.

• Indoctrinate: Remember what jurors told you during jury selection. Use their words, body language, analogies, and stories and reframe them in terms of the stories we want to tell on behalf of our client.

Conclusion
When you approach jury selection with the jury’s psychology in mind, your artistic ability in selecting a jury will flourish. Remember and utilize the three keys to jury selection: 1) Likeability; 2) Prior Experiences and 3) Preconditioning, to give yourself the best chance at winning your case

written by Ron Kurzman
Litigation Consultant / Partner