October 4th, 2021

The Zen of Jury Selection

Years ago after a jury trial a juror referred me to Garr Reynolds’ Presentation Zen. I continue to use Mr. Reynolds’ teaching to connect which is important for us all.

As taught by Reynolds in any conversation I need “connection.”  Without connection my listener is left with emptiness. Through connection I bound. People relate to me when I connect.

Movement and body language are important for connection. For movement I continue to practice Tai Chi, study body language and the zen concept of living in the moment.

In jury selection this means staying away from the past and the future. I guard against thinking about what I want to discuss instead of listening in the moment. I listen, engage, and connect with the other person. As stated by Reynolds there is an energy when I am present. This energy is experienced by the listener.

My body language conveys relaxation. When I relax my listener relaxes. When I am uptight my listener is uptight. Through Tai Chi I know to be soft and balanced. I breathe  deep-into my naval-rather than shallow in my chest. My position is balanced and natural. My hands stay in the “zone of truth” which is waist high moving in and out as I speak.

To connect I accept the listener even when I disagree. This makes the listener more likely to accept my message. Through Tai Chi I know strength is through non-resistance.  Resistance is a turn off. Non-resistance makes a friend. The “friend” I make may be a member of the jury. Even when the person initially disagrees his frame of reference is open to the possibility my message should be accepted. Through non-resistance and acceptance I have a chance to reach agreement and acceptance.

I also meditate to shed fear. Fear comes when I worry about defeat. This happens when I think ahead to the result. I stay in the moment  and engage with my listener. By recognizing I lack control over the result, but have control over myself in the moment, I am able to move in the present, relaxed, balanced and engaged. This gives me the best likelihood of connecting  which gives me the highest likelihood  of success.

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February 9th, 2020

Jury Selection (With Help from Carl Rogers)

These are jury selection thoughts thoughts based on Carl Rogers, On Becoming a Person (1961).

In my relationships with persons I have found that it does not help… to act as though I were something that I am not.”

The first step in becoming one with the jury is to be real. Being real is being honest. Honest about the bad as well as the good.  Discuss the essence of the case especially the bad facts and problem areas. When this is done reveal how you  feel. Jurors intuitively recognize this and respond by revealing feelings.

“I have found it of enormous value when I can permit myself to understand another person.”

Carl Rogers reveals the essence of  jury selection with this quote. Connect with jurors by listening and accepting. Listening and accepting leads to connecting and bonding. Understanding must be unconditional-even when we do not agree. We can understand without agreement. When we have understanding we have a bound.

“I have found it highly rewarding when I accept another person.”

Here Rogers tells us we benefit by accepting unconditionally the members of the jury panel. The panel has bounded to some extent before we meet in jury selection. They have accepted each other at various levels. They know when we accept them. When we accept them when we are not in agreement they will more readily accept us when they are not initially in agreement. In essence they accept the possibility we may be right. We may be the exception to their initial reaction. Every rule has an exception.

“The facts are friendly.”

Stated another way the truth is friendly. We never forget this maxim in jury selection. The truth rings with authenticity, and jurors know it. Jurors understand problems and bad facts when we deal with them openly seeking their input. We have bonded and we have to accomplish fairness together. To accomplish fairness we must together face the hurdles.

“Life at its best, is a flowing, changing process in which nothing is fixed.”

To relax and be fluid is essential, as we can flow with the jury panel. To do this nothing can be fixed.  We are natural and spontaneous. We move with the dynamic of the jury panel. The panel will respond favorably.

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March 18th, 2015

Jury Thoughts

JuryDuty42_sgl_PRTv1Jury Selection.  Lawyers refer to jury selection as voir dire which is a Latin term for speak the truth. The problem with the term voir dire is most jurors likely have no idea what the lawyer is talking about when the term voir dire is used. To jurors what is happening is “jury selection.” When the lawyer says “voir dire” jurors hear “lawyer speak language”  from a person acting like a lawyer. This separates the speaker from the jurors who do not talk in “lawyer speak.”

Being a Lawyer. At Gerry Spence’s Trial Lawyers College we immediately learn “we have a problem.” The problem is we are lawyers, and in our jury trials it is generally the case that our jurors are not lawyers. Our jury is a “tribe,” and the tribe is looking for a leader. The leader is potentially one of the competing lawyers. And the leader is “the voice of the tribe.” The voice of the tribe will likely be a voice similar  to the other tribal members.When we address the tribe in “lawyerese,” speaking like a lawyer, we speak in a foreign voice with a foreign presence. So our first job is to speak like a “real person”and conduct ourself  like a “real person.”

Being Real. As we learn in The Velveteen Rabbit:

When you are Real you don’t mind being hurt,.. . It dosen’t happen all at once,… you become. It takes a long time. That’s why it doesn’t happen to [lawyers] who break easily, or who have sharp edges, or have to be carefully kept. Generally by the time you are Real [appearance is secondary]. But [fancy appearance] doesn’t matter, because once you are Real you can’t be ugly, except to people who don’t understand.

Margery Williams, The Velveteen Rabbit.

When we are real and speak in the tribe’s language we can’t be ugly to the tribe because the tribe understands.

 

 

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May 23rd, 2014

Clarence Darrow on “The Jury”

 

Every knowing lawyer seeks a jury of the same sort of people as their client; people who will be able to imagine themselves in the same situation and realize what verdict the client wants.

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better equipped for the subtle selection of the so-called “twelve people, good and true.” In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: this means all matters that combine to make the person; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit the juror’s mind. Understanding of all this cannot be obtained too bluntly. It requires finesse, subtlety and guesswork.

A skillful lawyer does not hunt for learning or intelligence in the box; [the skillful trial lawyer] knows that all beings act from emotions and instincts, and that reason is not a motive factor. … The nature of the person is the element that determines the juror’s bias for or against our client. [The juror’s]… intellect can always furnish… good reasons for following their instincts and emotions. Many [seemingly] irrelevant issues… are not so silly as they seem.  There is no sure rule by which one can gauge any person.

It is not the law alone or the facts that determine the results. Always the element of luck and chance looms large. A jury of twelve is watching not only the evidence but the attitude of each lawyer, and the parties involved, in all their moves. Every step is fraught with doubt, if not mystery.

Often a casual remark may determine a vital situation. In all questions people are frequently influenced by some statement which, spoken at the eventful time, determines fate. In fact, all that occurs in life is an endless sequence of events resulting from the wildest chance.

Clarence Darrow, How to Pick A Jury (Esquire Magazine 1936)(edited/redacted by PAT)(Photograph Courtesy of  the Clarence Darrow Foundation).

 

 

 

 

 

 

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June 9th, 2012

Jury Selection

Below my latest on jury selection:

Introduction. “Get to talk to you three times: Now during jury selection, opening statement, and closing statement. But here in jury selection you do most of talking. What we are doing is hearing your personal feelings, experiences and outlooks to see if this is the right jury for you.”

Read Neutral Statement. “What comes to mind on hearing this statement?” (Ideally we are off and running after the first comment. Listen and encourage input. Keep the comment ball rolling). “Who agrees with Mr. Jones?”  “Who disagrees.” “Tell me more.” Thank panel member for input. Never cross examine or disagree.

Flow into Next Area of Discussion. Allow panel members to get into other topics on their own through input when good topic for discussion surfaces as conversation evolves. Be attentive to talking juror. Listen with appreciation.

Either or Questions. Have set of three either or questions to get conversation when never starts, dies, or running out of time. “Let’s do either or. I will read two statements and ask you to raise your number for the statement closest to how you feel.” 1) Lawsuits are at times necessary to receive fair compensation for a personal injury, or Lawsuits are a drain on society, bad things happen, move on and forget about personal injury. 2) There should be caps on damages above which jury cannot award, or Juries should be able to award what they collectively feel the case is worth. 3) If a person is injured his medical bills should be paid and his lost wages but that’s it, or If a person is injured he should also receive money for non economic damages he proves.

Note on the either or you will find jurors who do not agree with either proposition. These jurors are often the type who will be the presiding juror. Have discussion with jurors who will not go either way to hear their feelings and viewpoints.

Save Softball Question. Always end positive. This is done by way of softball feel good question involving everyone. “Not much time left. In one word tell us your most important thing in life. Then go to juror after juror ending voir dire with last answer.”

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June 24th, 2010

Jury Selection

Jury Selection Notes:

Big Picture. Encourage jurors to be self selecting.  Conduct selection in an open way where a juror will self elect in or out. Inclusiveness is the goal.  Build on “the community” the jurors have established. Never cross examine a juror. Disagreeing is adversarial  and alienates fellow jurors.

Demeanor.  Zen- like (in the present).  No fear.  No notes except juror names. Address by name if judge allows. Friendly, accepting, encouraging, rewarding openness and candor, no matter what is said.  Find common ground and roll.  Once connect with a juror come back to this juror when process bogs down or stalls.

Beginning.  Introduce self and client.  Consider reading the common case instruction.  Discuss.  “What we are doing is discussion of life experiences, thoughts and feelings to determine if this is right jury for you.”

Topics for Discussion: 1) Too many lawsuits v. Verdict can lead to something good beyond compensation to injured plaintiff;  2) “Do you feel monetary damages measure responsibility for negligence;” or  “Do you feel sometimes only way to establish justice is through monetary compensation;”  3) What do you feel “about caps on damages.”  “In Washington we do not have caps on damages but judge has the power  to knock damages back.” (On “but money cannot eliminate the injury.”  I agree.  “Money cannot change reality of injury and [client] would pay [amount of money] not to have injury).”

First Session: Establish we are involved in an important case;  Justice = monetary compensation;  “What do you feel about non economic damages.” ( McDonalds’- Will never change jurors who are outraged by it.  Remember there are some who know facts, and it is phony to agree  McDonalds is a frivolous lawsuit);  “Anybody agree a person should  be held accountable when they violate a rule that results in injury to another.” (Roll with discussion).

Second Session:  Discuss case concerns: Confess concern about [specific problem in case]. Roll with discussion.  Consider introducing themes:

“MY JOB  YOUR JOB.  “In this case what is my job and what is your job”?  (My job is to bring legitimate cases to get justice and your job is to provide fair compensation in legitimate cases).

ACCOUNTABILITY.  “How important is it to take responsibility for our actions/inactions;”  “How do you feel about people who shirk their responsibility.”

SAFETY.  “Would you sue your [landlord] if you were injured as a result of [a defect in rental].”  “What do you feel about the saying “It is better to be safe then sorry.”

MOST IMPORTANT THINGS. “What are the Most Important Things in Life.” (Roll with discussion).

Challenge for Cause. (Determine how judge wants cause challenges addressed).  With bias juror:  1) Commend openness;  2) Lock in bias;  3) Establish it would be better if you sat on different case given your feelings. “Given your feelings, and considering [client who  has these issues in  his case] do you agree it is fairer to all parties if you you do not sit on this case.”  (If cause challenge is unsuccessful move on as juror is now known).

Bennett’s Jury Selection Rules. Practice 90% listen 10% talk;  No legalese (be a normal guy, not a pompous ass);  Let topic die its natural death (jury kills not me);  Keep conversation flowing and listen, listen, listen;  Use jurors to flow from one to the other;  Never select alone (use simple rating  of +/?/-);  Talk to all and save a decent question/theme;  Open ended non lawyer  speak “How do you feel about…” questions;

PAT. Be prepared.  Trust instincts and  knowledge of the case.  Accept the possibility of failure.  Stay in the moment.  And listen, listen, listen….

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