By R. Craig Smith, Dennis W. Brooks and Craig C. New, Ph.D.

(Second of two parts)

While jury selection, particularly in light of the limitations imposed by Batson v. Kentucky, is still akin to divining the mind of the Wizard of Oz, there are some things lawyers can do to increase their odds -- not so much in trying to select the perfect, favorably disposed yet unbiased jury, but rather in identifying those jurors who pose the greatest risk to the desired verdict.

Know the Judge and Court
Before any consideration is given to jury selection, it is important to understand the process, procedure and preferences of the judge in seating a jury. Ask the court and/or other attorneys with experience with the judge and plan jury selection to use that information efficiently and effectively.

If the case is highly complex or of unusually high value/risk, don’t be afraid to ask the judge for improved voir dire conditions such as a supplemental juror questionnaire or additional attorney time to question jurors.

Develop an Overall Strategy
Like any other aspect of trial, successful jury selection requires advance time and effort. Often, especially in large cases, attorneys are too overburdened with trial preparation to spend time developing a specific strategy for jury selection, much less to complete the work required to make voir dire successful.

Sit down with the client and the trial team to develop an overall strategy for jury selection that focuses on critical themes, issues and potentially adverse biases that may be uncovered during the voir dire process.

Design a High-Risk Juror Profile
The most critical step to successful jury selection is the development of a high-risk juror profile -- a list of juror characteristics that, when present, indicate high risk for your side. The profile then helps development of other important elements of jury selection, such as voir dire questions or supplemental juror questionnaires. This blueprint is necessary to all other elements of jury selection as it provides the foundation for a successful “de-selection” process.

The more high-risk characteristics a particular juror displays, the more dangerous that juror becomes to your case. The term “high risk” does not always directly translate into a clear bias against your case. For example, it could be that a juror, seemingly favorably disposed to your case, displays the characteristics of a strong opinion leader. However, if this juror sides with your opponent after hearing the evidence, her status as an opinion leader gives her the capability of persuading other jurors to see the case as she does. In this sense, such a juror is high risk.

Don’t Waste Time Arguing Your Case
Many attorneys see -- and use -- voir dire as an opportunity to start trying the case. They have little concern for specific high-risk juror characteristics, using valuable time to hopefully “educate” jurors or to “set up” their case, then, in the short time remaining, relying primarily on stereotypes to make their strikes. This common practice rarely, if ever, provides any demonstrable advantage.

The information you need is obtained not by talking, but by listening. To the extent time permits, ask open-ended questions, allowing jurors to answer in their own words. The longer a juror speaks, the more likely other jurors will be to express their own attitudes and opinions. It should be your goal to act as a facilitator to the panel, eliciting as much juror conversation as possible.

Educating jurors about important case issues is not the same as arguing your case. You can easily and briefly explain your theory of an issue and then move immediately to a question springing directly from that theory. For example, in defending a gender discrimination claim in which alleged retaliation is a potential issue, you might say, “The plaintiff in this case alleges that we retaliated by denying a promotion because of her complaints about unfair treatment of female employees. We believe that we did not retaliate in any way against Plaintiff, but that leads me to my next question. How many of you, or someone very close to you, have been the victim of or seen some example of gender discrimination where men seem to always get a better deal than women?”

As long as you focus mainly on well-thought-out and well-articulated questions, you are on solid ground and will glean good information that can uncover high-risk characteristics in prospective jurors.

Ask Good Questions
Asking good questions in voir dire is not a natural talent for many attorneys. It takes a thorough understanding of communication and a lot of experience. Most importantly, it takes an intimate knowledge of which issues will be most critical for jurors. You must be able to frame the question in such a way that jurors understand and are open to answering it.

Focus on attitudes and experiences. Some of the most common questions asked about potential jurors are: “Do I want men or women?” “Do I want older or younger jurors?” “Do I want white-collar or blue-collar folks?” Each of these questions reflects the inaccurate assumption that demographics provide a reliable basis for finding out whether a potential juror may harbor negative bias or high-risk characteristics detrimental to your case or client.

Exercising peremptory challenges based on demographics not only creates the potential for legal challenges based on the makeup of the jury, but also is generally ineffective in discovering what you really need to know about your jurors. Questions should be designed to get at the experiences and possible opinions relating to the issues of the case that potential jurors may hear.

Get Help in the Courtroom
Attorneys conducting voir dire frequently miss damaging responses from potential jurors because it is too difficult to track information and ask questions at the same time. It is always a good idea to use other attorneys, consultants or other competent individuals to help you in court. It is practically impossible for most of us to ask good questions, facilitate discussion and be a good scorekeeper, all at once. An experienced consultant can also help teach a trial team member to take on the scorekeeping role.

Make a Favorable Impression
One of the most important contributors to good jury selection is developing a favorable impression of the attorneys and their clients. While we don’t normally think of it during jury selection, it should always be remembered that while the attorneys are selecting a jury, the jurors are, to a large degree, selecting an attorney.

The rapport that attorneys establish with jurors during the selection process will either negatively or positively affect the jurors’ perception of everything that follows. This rapport can taint a very well-prepared case if the jurors don’t like the presenting attorney or lead to a more willing acceptance of what a likeable and respectful lawyer has to offer during trial.

Experience demonstrates that the evidence at trial is ultimately more important than individual or collective juror characteristics in determining the outcome of most trials. But what, at the beginning, may seem a small advantage in the overall scheme of things -- the ability to understand and identify the high-risk persons in the pool and to strike potentially adverse jurors during jury selection -- may, in fact, be what tips the balance in your favor in the end.