Selecting a Jury of Cynics, Believers and Others

Trial and Error
Vol. 35 No 2 Winter 2009

    Many attorneys say they dislike jury selection because it is the part of a trial where they have the least control.  True, cases can be won or lost in a jury selection.  But as critical as first impressions and jury selection are, lawyers have the entire trial to prove their case.  What the voir dire does is allow you to establish your credibility as you attempt to identify people who will be fair.  It allows you to begin unfolding the themes of your case and discredit those of your opponent.  It is the most challenging part of a trial because it allows you to use everything you have learned as an attorney.

    To help me better understand how to select–or deselect–jurors, I commissioned a national study in September 2006.  The study, “Public Perceptions of the Justice System,” confirmed many believes that I have long held and dispelled many of the myths surrounding the civil justice system.  For example, the study found that most people in society fall into four general groups: cynics, believers, pro-business, and underdogs.  Although it is not wise to pigeonhole people, it is undeniable that people’s beliefs and attitudes place them in general categories. 

    The study may help you in selecting those jurors who can be empathetic to your case, and in deselecting others, like the hard-hearted, the impulsive, the fearful, the vulnerable, the insensitive, the unconventional, and the worrier.  (The study can be found at www.cliffordlaw.com.)

    Based on a series of questions ranging over a number of issues, the research conducted by Leo J. Shapiro and Associates in Chicago found that Americans can be divided into groups based upon their attitudes towards lawsuits, corporations, health care, and personal responsibility.  Overall, the study concluded, “We are less a nation divided than a nation conflicted.  We agree on far more than we disagree, but we are not always internally consistent in our beliefs.”  For example, many people believe in corporate responsibility at the same time they believe in personal responsibility.  Americans worry about the number of medical malpractice lawsuits at the same time they believe that these same lawsuits are necessary to prevent medical mistakes.

    Lawyers must realize that jurors are made up of complex sets of believes.  Each juror brings to the courtroom a set of conflicting ideas and a believe system that is made from the personal and professional experiences in his or her own life.  The challenge at trial is to sort out these conflicting beliefs and find jurors who will understand the facts of your case and embrace your position, while at the same time holding true to their vision of reality.  It is up to you as a lawyer to develop credibility with each individual as well as with the group as a whole and then communicate facts that allow the individual jurors to reconcile their differences in accordance with your view of the case.

    The largest of the four major groups of Americans found by the study was the cynics.  They comprise about 43 percent of the adult population.  Cynics are distinguished by their general lack of confidence in nearly every American institution–from the Congress to hospitals, corporate America to juries.  They are neither plaintiff- nor defense-oriented and have an allegiance to no one.  Their demographic political affiliation mirrors that of the population, and they generally fall in the middle class in terms of occupation, education, home ownership, and income as well as age, gender, and ethnicity.  They are likely to play a facilitative role in a jury.  I tend to label them as people who view their cups as being half empty.

    The believers are the second largest group, accounting for 27 percent of the population.  Believers are more optimistic then cynics and are less critical of American institutions and individuals.  Their cups are half full.  They feel that people do not always have control over what happens to them and that the system can provide redress.  They feel that most people who sue have legitimate grievances.  Believers, although open and with the victim in a lawsuit.  They are often younger and single and have no children, compared with the general population.  They have at least some college education but are in the lower- to middle-income brackets.  One a jury, they tend to be more passive and will not try to influence others.

    Cynics and believers account for the bulk of the American population, but is the two groups on the extreme ends that attorneys either seek or shun.  The first group can be labeled pro-business, and it accounts for 16 percent of the population.  Pro-business people believe in personal responsibility and are defenders of corporate America.  They are the most educated segment and are concentrated in the upper class of American socioeconomic life.  They are predominantly white and male.  Often, they feel strongly that there are too many frivolous lawsuit and that jury awards are excessive.  They identify themselves as Republicans and conservative, as a rule.  They are informed, educated, and assertive on a jury.

    The group on the other end of the spectrum is called the underdogs.  It is the smallest group, comprising just 14 percent of the population.  Underdogs place their faith in individuals rather than institutions.  They are distrustful of corporations, and they feel that lawsuits are needed to protect people.  Underdogs generally are the least educated group and fall in the lowest socioeconomic class, yet they also are outspoken and attempt to be influential.

    Although these last two groups represent opposite ends of the spectrum, it is not always easy to distinguish the members of these two very different groups trough typical voir dire questions.  For example, the vast majority of both segments believer that too many so-called frivolous lawsuit occur today, that most doctors do the best they can for their patients, and that people are too quick to blame others for things that happen to them.

    Take this example from a recent trial of mine: One of the alternate jurors, a so-called neighborhood watchdog, appeared to be an underdog, someone I would seek to place on my jury.  She was an elderly mother of six children aged 44 to 55, including a sone she described as “crippled now because he had a degenerative aliment” and another son who was hit by a car at age 12 but was not permanently injured.  She was a retired waitress of a lower socioeconomic class, someone who grew up on a farm and moved to the big city.  She appeared to be a protector of children, someone who cared about young girls who innocently run into the street and are struck by a distracted adult driver.  Yet, I knew from her belligerent responses and controlling personality that she was not someone who should be seated.  She characterized her “crippled” sone’s injuries as something “he did to himself,” the ultimate in personal accountability, as opposed to someone who would need the help of others.  Yet I was left with no choice in seating her as an alternate, running out peremptory challenges. 

    The court asked her of her hobbies.

    A:    You want my main one?
    Q:    Yeah.
    A:    Riding herd on the gang kids.  I’m the neighborhood crabby lady.  I also cook, so –
    Q:    All right.
    A:    Interfere in everybody’s life. 
   
    My questioning of her at voir dire went like this:

    Q:    You drive a car?
    A:    Yes.
    Q:    Okay.  Still drive a car?
    A:    Yes.
    Q:    Okay, did you ever have any untoward incidents with a pedestrian or somebody on a bike or whatever, any of that–none of that?
    A:    No.
    Q:    Okay.  How about lawyers, lawyers okay by you?
    A:    Sure.
    Q:    How about law?
    A:    My godfather was a lawyer.
    Q:    Was he?  Okay.  Here in Chicago?
    A:    No.
    Q:    Okay.  Iowa:
    A:    Yeah.
    Q:    Farmer lawyer?
    A:    We used to get big fish.
    Q:    Okay.  In this case itself, you hear, of course, what it’s involving.
    A:    I did.
    Q:    Would you sign a verdict for Roe Ann or you’d sign one against her.
    A:    I can do this.
    Q:    You can do the right thing?
    A:    Right.  I’m known for that.

    A tough-talking, no-nonsense lady, her one-word answers indicated to me someone who has her mind made up and enjoyed being right.  She might attempt to influence others as a leader, one who enjoys interfering in others’ lives, and I was not convinced she would be in favor of my client, regardless of the evidence.  My motto: Never pick a leader, always try to pick sheep.  This woman was no follower.

    Sure enough, when I displayed my monetary requests on the board in closing argument, she rolled her eyes.  Her arms were folded across her chest.  Her body language was screaming that she was not on my side.  Of course, it was a lot of money, but all the jurors had promised me they could award millions of dollars if the evidence so warranted.   With the jury of 12 deliberating just over five hours, it was fortunate for my client that we did not need to tap the alternate jurors.

    With people like this alternate juror who hold conflicting beliefs, it can be difficult to discern in such brief questioning who will be open to your theme of the case versus who will allow their internalized values to suddenly put up a wall.  The survey indicated that certain demographic and attitudinal characteristics are shared by the underdogs and the pro-business groups, but it is the characteristics in which they differ that must be closely examined.  This is how to distinguish those who will favor your client from those who will likely vote against you.

    Aside from the external characteristics discussed earlier, the underdog generally will agree with the following statements:

    ∙    The ability of citizens to bring lawsuits has made this a safer society.
    ∙    Juries do a good job of determining the outcomes of lawsuits and assessing damages in civil cases.
    ∙    Most corporations are more interested in making profits than in making a safer society.
    ∙    More laws are necessary to regulate corporate behavior.
    ∙    The federal government is more interested in protecting corporations than in protecting individuals.
    ∙    Hospitals today are more interested in making money than in healing patients.

    Generally, pro-business people will agree with the following statements if asked at voir dire:

    ∙    Juries today far too often award large amounts of money in civil cases.
    ∙    Generally, large corporations treat their employees well.
    ∙    Patients need to take more responsibility for their own health care.
    ∙    Most people are in control of what happens to them.

    Many pro-business people would disagree with th e following statements:

    ∙    Most corporations are more interested in making profits than safer products.
    ∙    More laws are needed to regulate corporate behavior
    ∙    The federal government is more interested in protecting corporations than in protecting individuals.
    ∙    Hospitals today are more interested in making money than in healing patients.

    Obviously, one must ask open-ended questions that elicit answers on these issues.  As word of caution: Holding a single believe does not necessarily place a person in one segment or another.  People display a complex set of beliefs with many ideas overlapping from one group or another.  What the lawyer is really trying to do in jury selection is to identify the prospective juror who will most likely be biased and get him or her dismissed.  These segmented notions of the population will help the lawyer achieve this goal, particularly when it appears that the beliefs of various jurors are fuzzy or overlapping, when the lawyer might be constrained by time or peremptory challenges.

    So what does this research come down to?  At the very least, it demonstrates that you must be sensitive to the various parts of each person.  His or her political leanings, income, family history, employment, life experiences, and leisure time all must be examined at voir dire, withing allowable time parameters, to make an intelligent decision on whether that person would be a fair juror.

    Ultimately, you must try to seat, not advocates, but fair jurors.  I try to look each person straight in the eye to see if that person stares straight back at me with the promise of maintaining fairness and objectivity throughout the process.  That means that I try to avoid the cynic, the distrustful one who represents the greatest segment of the adult population., it is not an easy task to rid a jury of all of them with just a few peremptory challenges.  The good news is that they generally be noted that cynics tend to look at all parties with a critical eye so that everyone comes into the courtroom on an even, although perhaps lowered, playing field.

    Lawyers must keep in mind that it is not going to be possible to change a person’s mind or beliefs in a few minutes.  The voir dire is not meant for that.  From the moment the lawyers and their clients enter the courtroom, the potential jurors see where the lawyers and clients fit into their complex set of beliefs.  Is the plaintiff or her lawyer one who is bringing a so-called frivolous lawsuit, thereby reinforcing their skepticism as to why they have to be called for jury duty to begin with?  Or do their sociological antennae detect that the defense is being disingenuous or dodging responsibility?

    In a recent trial involving a little girl who had been struck by a YMCA van, the jury selection finally came down to one last challenge and potential juror that my legal associates questioned.  He was an African American man who was intelligent, calm, and thoughtful.  He wore large black-rimmed eye-glasses that made him appear scholarly.  He explained how he worked as a docket clerk at a large defense firm in Chicago, and he was familiar with my firm but had no direct dealings with it.  His day-to-day work was centered on asbestos litigation.  Nonetheless, my associates feared he would be an automatic sympathetic vote for the defendant.  Concerns about his never having driven a car or obtained a driver’s license also arose: would he be able to know what a “close call” is?   Would he understand the difference between a child running in the street and a driver’s responsibility behind the wheel of a car?  In addition, he had worked 20 years earlier as a summer youth counselor for the YMCA in California.

    After receiving assurances from him that he would keep an open mind and base his decision on the evidence, I was confident that he would be fair.  As it turned out, he was elected the foreperson of the jury.  The first trial ended in a mistrial with other counsel I was then brought in.

    The defense in that case portrayed the accident as being entirely the girl’s fault.  I accepted, instead, the notion that the girl could be partly to blame.  Jurors interviewed in the post-trial analysis said they appreciated that reasonable approach.  It allowed them to adopt those portions of the evidence that were consonant with their belief systems and discard those that were not, and still come to a conclusion with which everyone could live.  Even for a 12-year-old, she could have “darted,” as the defense suggested, although it was more probably true than not that she looked both ways and attempted to cross the busy street carefully as her mother had repeatedly taught her.  The hurried driver simply did not take all precautions to guard for pedestrians, particularly in an area of schoolchildren.  Even the route he took for his tardy appointment that day was called more into question in the second trial, thereby putting his credibility more at issue.

    I wanted to de-personalize the defendant, making it more the institution that it was.  At the same time, I personalized the plaintiff more, asking her mother to bring her daughter so they could be present for opening statements, then bringing her to life in a sit-down conversation in front of the new jury.  Some of them were moved to tears upon hearing the young lady talk about her dreams now laid to waste and her life as it is today.

    I also hired an expert who summarized her medical needs rather than put on a number of medical experts who would drag on for days.  It was clear that the plaintiff was permanently brain damaged, with permanent cognitive as well as physical injuries.  A credible expert  could explain the necessary details in less time so that we could focus more on liability.

    I also decided to call the officer who investigated the accident.  The police investigation took less than an hour and was clearly inadequate in that critical measurements were not taken and other critical information was ignored.  I decided to put the you, cocky officer on the stand so that the jury could see that this girl had been given short shrift at the very time she most needed assistance, as she lay half dead on the street.

    As I was closing, I noticed that many jurors leaned forward, closer to me; some even nodded.  Others took notes.  Most sat attentively with their hand in their laps.  When my opponent gave his closing argument, I noted that many began sitting back erect in their chairs.  Others folded their arms across their chests, including the bespectacled man who was later to become the foreman, a possible indication of defiance or rejection.  As a group, they were able to reconcile their differences and obviously come to a consensus with which they could live under the facts that were presented.  I always say that a “happy jury” is a plaintiff’s jury because they are able to live with themselves knowing that they have helped someone.  It is not easy being happy and rejecting someone’s request, whether it be in court of in life.

    This means that I watch the interaction of the jurors as they enter and exit the courtroom.  When they are animated and laugh as a group in the jury room, you can often hear them through the door.  When they leave for the day, happy juries leave together chatting.  I have seen those who file out separately instead.  Total silence is generally a bad sign for a plaintiff.  Reclusive jurors, lethargic people, arrogant or distrustful persons, or isolationists are not good either as jurors for the plaintiff.  It’s not that you need a roomful of extroverts, but you do need people who are comfortable working with one another because they soon will have to make a very important decision.

    After about three hours of deliberation in the case of the young girl, the jurors asked the judge for a calculator, which he didn’t tell us at the time.  Was it used to figure stopping distance or to calculate damages in the various categories that I had suggested to them in closing argument on a board that I tabulated for them?  Subsequent juror interviews indicated that latter.

    The bespectacled juror who everyone warned me would be the sticking point, stood to read the jury’s decision, having been elected the foreperson.  The amount included my expert’s figure necessary for her future medical care, but the jurors came to their decision based on their own formula of counting votes, taking into account the dissenters, and weighing each count of liability.  The total dollar amount awarded was actually more than $22 million, but the jurors compromised and were able to hold to their conflicting individual belief systems, attributing 30.1 percent of the blame to the 12-year-old girl, which by law reduced the verdict amount by that percentage.  That is how they were able  to embrace my presentation of the facts.  Post-trial interviews indicated that jurors were not comfortable with the defendant’s black-and-white, all-or-nothing approach.

    The foreperson, although perceived by my colleagues to fall in the pro-business category, was actually more in the believer category.  He was able to reconcile his believe system with the notion that something happened to this young girl that was partly her fault, but mostly the fault of the adult driver.  I viewed him as open to listening to both sides and deciding the matter at the end of the case based upon the evidence, not some preconceived notions with which he had grown up or adopted from others.  I accomplished t his by developing my credibility as a lawyer throughout the trial in presenting the facts as well as communicating what was necessary for that juror–and all jurors–to accept my version of the facts.

    I shared with them the same concerns and doubts I had about the case, and they could see how I reconciled the facts to reach a decision for the young girl.  Because I had built my credibility, they were able to reach that same decision with me as an advocate of one of the parties.

    Keep in mind, if the case was that cut and dried, it probably would have settled prior to a trial.  Generally, the cases with a lot of gray go to trial.  Being open and honest about the weaknesses of one’s case allows jurors to set aside their skepticism and come to a reasonable conclusion that demonstrates not only what the parties’ best interests are at heart but also the civil justice system’s.  It is a respect for the process that must remain intact throughout the trial.

    When the verdict was read, it was a wonderful experience to witness a family in despair see a light at the end of the tunnel.  The girl’s mother, now 68 and unable to help her growing adult daughter with diapers and other essential needs, offered a tired smile.  The girl, who had turned 18 years old by the time of trial, had little understanding of what it truly meant.  The verdict was not one of jubilation but of relief, knowing that she could be cared for by someone for the rest of her life.

    Although the adage that you can make a first impression only once is true, I don’t believe that jurors make snap judgments on the finality of the case.  Credibility is built over the course of the trial.  It is built with your opening statement and not making empty promises.  It is built in the witnesses you bring.  It is built in closing argument.  Most importantly, it is based on communicating with the jury.  You must convey to the jurors a reason to trust you and your evidence.

    Some may believe in s hort-circuiting the process.  It has been reported that a software program is now in place that allows a computer to identify biased jurors.  For example, in Texas v. Yates, No. 0880205 (Harris County, Texas District Court, 2006), Houston attorney Wendell Odom used a computer program to select a jury in the case of a client charged with drowning her five children in a bathtub.  The jury found the mother not guilty by reason of insanity.  He reportedly attributed part of the successful result to the computerized help he received in selecting the jury.

   
    Aside from the fears that the lawyers will come to depend too heavily on such tools and potential Batson challenges, the issue of malpractice could come into play should a client question the choice of a computer as opposed to an experienced lawyer they hired.  Certainly, in time-strained situations, this software from JuryQuest might be an aid in spitting out certain demographic information, similar to the study I commissioned with Leo J. Shapiro and Associates.  The software gives scores to each potential juror and allows an attorney to rank the voir dire under the pressure of a trial. Marketers for the program claim that it is particularly useful when the peremptory strikes are few and it becomes more difficult to discern “dangerous” jurors from “sympathetic” ones.  Still, nothing can replace good old-fashioned intelligence, instinct, experience, and common sense.

    I truly believe that if put on an even playing field, 12 people will come to the right decision for the right reasons.  The Shapiro study concluded that, despite criticisms of the courts, most people feel that they jury system is still the best way to resolve disputes.  In fact, it found that two-thirds of those surveyed said that they were either “very” or “somewhat interested” in serving as a juror.

    As for attorneys, it all comes down to identifying the belief systems of each juror and then spending the time during trial communicating to each one the essential facts that allow the jurors to reconcile their complicated, conflicting beliefs with a finding in favor of your client.

    If I leave you with one thought, it is that if you do not know how people think, how can you make them listen?  Lawyers must understand how people think and how they come to decisions.  In today’s world, people’s views are not black and white.  There is a lot of gray.  Sorting through these various shades of opinions is a difficult task, particularly under the constraints of a trial, but it is a job that good lawyers can successfully accomplish if they stand back ad study the situation and, above all, trust their instincts.