Constitutional Law Litigation

This is Not Your Father’s Jury

Back when I was a young lawyer just starting to try cases for the Manhattan Trial Unit of the NYC Law Department, I got a quick introduction in selecting jurors about 15 minutes before I picked my first jury. Though it was over 25 years ago, I can hear the speech from the wizened old veteran assigned to run the Civil Court parts for the City to this day – “Try to keep off all people on public assistance, they hate the City. Try to get people in banking and financial services. Obviously, if your plaintiff is White, get Black people. If your plaintiff is Black, get White people. If the plaintiff is a Woman, get Men. If it’s a Man, get Women. Otherwise, just go with your gut. Good luck.” And off I went. I proceeded to lose $500,000 on a case worth about $25,000 that I probably could have settled for $15,000. Little did I realize that the case was over before I began because I got my butt handed to me in jury selection.

Over the years since then, I have become a voracious student of jury selection and persuading jurors from the moment you meet them in voir dire by building a theme for your case that they can understand and identify with and by having in your mind certain qualifications of what would be a good juror for your case. But this article is not exactly about the art of jury selection, it’s about how older lawyers (like myself) need to adjust their jury selection criteria for today’s typical juror. Many folks who have been trying cases for years have in their own mind preconceived notions that are hard to shake. As Jury consultant Harry Plotkin, who writes The Jury Tip of The Month, recognizes: “Times change, cultural values change, and new
generations of jurors with different values and points-of-view replace older generations. Generations X and Y now make up more than half of the jury pool.”

In fact it was an article in today’s NY Times about this particular generation of college students wholly unrelated to jury selection that made me think about this issue. The article was about the University of Pennsylvania’s undergraduates and how they felt that the LGBT (Lesbian Gay Bisexual and Transgender)label was too narrow for their experience. Some students had formed clubs that catered to the LGBTQIA -LGBT plus “Questioning,” “Intersex” and “Asexual.” The article went on to say how even those labels were restrictive and students were forming other clubs with new tags and names to be more open.

Old School JurySo I got to thinking about how far in distance we’ve come on the whole Homosexuality/Heterosexuality issue and spectrum since I was in college and I was wondering how I would relate to one of these young people (regardless of their sexuality or experiences) if they ended up on my jury. What do I have in common with them that can make them want to relate more to my side of the story than my adversary’s side? What other different cultural experiences, feelings and world view did they have that I am not even in tune about. Considering that I do a lot of work in the fields of employment discrimination and criminal defense how a juror “feels” about an issue and what their “world view” is on certain topics is vital information.

I still laugh silently as veteran trial lawyers tell me their jury selection guidelines formed from stereotypes derived from the 1970s or earlier. In fact, most of these “gut calls” are based on myths and not on any statistical research. No matter how many cases you have tried, you have not come across a large enough statistical sampling of any one group to make valid determination about how that group thinks or feels about a particular issue. To again quote Mr. Plotkin:

Developing strong convictions about a demographic group based on a small handful of jurors isn’t a theory, it’s a superstition.

Moreover, the demographics of the pool have changed dramatically. Someone whose race is Black may be from anyone of a dozen or more countries where this was generally not the case even as late as in the 1990s. Hispanic jurors come from all socioeconomic levels now and also from a broad array of home countries each with their own sets of cultural biases and preferences. We used to be taught to ask women “Do you work outside the home?” Try doing that now and see how you are treated.
That’s why lawyers must spend time in voir dire getting their prospective jurors to talk about how they feel and think about a variety of issues. Don’t ask questions that call for one or two word answers. Engage in a dialogue as much as you can to try and get a sense of that person. Ask at least one such question of every juror and have a dialogue however brief with every juror.

This is made more difficult by judges who like to set rigid time limits on jury selection. Counsel should not accept this blindly and fight for as much time as possible explaining the complications and intricacies of the case and need to inquire in a variety of areas. Make use of the jury questionnaire to learn as much about the jurors as you can without having to question them about it. Don’t let yourself be rushed and don’t start until you have read and made notes as to each juror’s occupation, family life, etc. as reflected on the forms. Then use your time (however limited) to develop your theme and get to the juror’s feelings. Remember if you want to make an appellate issue over how little time you were given, you will have to keep talking until the judge stops you and then indicate you want more time. If you don’t ask for and are denied more time, the time limitation is harmless.

Jury Selection is a luxury not to be thrown away on stock questions and misguided stereotypes. Trial lawyers need to be engaged in reading and following social media, trends, memes, and popular culture so that they can know a bit about what their prospective jurors are engaged in. “What are the three websites you visit the most often?” has replaced “What newspapers do you read?” Creating a dialogue and getting prospective jurors to talk about how they feel about issues and topics is the only way to assess the modern juror.

2 replies on “This is Not Your Father’s Jury”

Harry: I take that as a great compliment coming from you. I usually find I am in 100% agreement with your “Jury Tips of the Month.” I have trained many young lawyers over the years and have taught at New York Law School over the past 7 years or so and the main message is always that the trial is usually over after jury selection.

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