by J. Brooks Terry
Staff Writer
They’re anonymous in the courtroom and usually made up of individuals with little or no legal experience or education. They’re the jury and, as any trial attorney will tell you, the people serving can determine the outcome of a trial before it has even started.
“That’s absolutely true,” said Mike Freed, an attorney specializing in commercial litigation. “A lot of people believe that the trial can be won or lost during the jury selection.”
A common misconception, the selection process itself — known as voir dire — is not a time where a lawyer chooses the jurors. Rather, it is a de-selection of those individuals that an attorney would find damaging to his or her case, whether for the plaintiff or the defendant.
After a large number of men and women have been called to the courthouse — the actual number will vary based on the size of the case and also the level of publicity surrounding it — they will be asked a series of questions by either the judge or attorneys in an attempt to whittle the number down to the traditional six for a civil trial. These men and woman are now referred to as the venire.
“During voir dire in the state court, an attorney asks questions designed to see if a potential juror has any biases that would impede their objectivity,” said Freed. “If an individual is too far biased towards either side, they would be considered inappropriate and would, and probably should, be excused.”
Two specific options are available to an attorney who would like to dismiss a venire. One such option is the Challenge for Cause. This call for strike, which can be used as many times as necessary at the judge’s discretion, is reserved for jurors who are, essentially unable to think objectively about one of the parties for a variety of reasons. For instance, if the prospective juror has a relationship — whether by marriage, blood or employment — with one of the parties, they would dismissed.
The other option is the Peremptory Challenge which, more than anything else, is a call for strike based on nothing more than the attorney’s gut instinct and ability to read people. The number of peremptory challenges is limited, so a lawyer must use them wisely.
While an attorney will begin to see patterns in potential jurors as he gains experience, Richard Marguiles, a defense attorney specializing in employment discrimination, said it’s impossible to predict how a jury will react from trial to trial.
“As much as I hate to say it,” said Marguiles, “it’s like a crap shoot. No matter how prepared you are going into the courtroom or how strongly you feel about a particular jury, you can’t predict how they are going to react every time. People are different and it’s very difficult to generalize and gauge from one jury to the next. A certain type of person like a teacher, for example, that could have helped us win a particular case, could be the same type of person that could cause a loss in another one.”
Marguiles added that it is this uncertainty — which can be viewed as a plaintiff strength — that has led many individuals to settle out of court through mediation.
“That’s why I say that the reasonable mind prevails in mediation,” said Marguiles.
While both sides of a legal dispute recognize the importance of an effective jury in the courtroom, many firms today have sought the aid of jury consultants to insure that the group selected be fair and, more importantly, impartial when reaching a verdict.
“The expense incurred on behalf a jury consultant is definitely justifiable in the long run,” said Freed.
Marjorie Sommer co-owns Litigation Edge, Inc., a firm specializing in jury consulting and mock trials. A former trial attorney for over 20 years, she agreed that much of the work accomplished in the pretrial stages is extremely important to way the case is tried and, ultimately, decided.
“If you don’t have a jury who can think impartially,” she said, “your case is lost.” Sommer added that what her firm tries to accomplish is to help attorneys see a case from the perspective of the jury.
“A fairly recent development,” she said, “is that the time allotted during voir dire has become far more limited than it used to be. Now, an attorney is only allowed about 20 minutes to determine who is and is not appropriate to be part of the jury. That’s hardly enough time to scratch the surface.”
She added that such time constraints could eventually lead to a weakening of the court system. Demographics alone are unreliable in selecting.
She said that the best way for an attorney to gather information in such a short amount of time is to ask open ended questions and listen very carefully to the answers.
“We always instruct attorneys to ask questions like, ‘How do you feel about . . . ?’ or ‘What are you thoughts about. . .’ An attorney should be listening for about 95 percent of the time and talking for five. Get to know them as best you can. Once a juror expresses a bias, have them excused. Let the jurors hang themselves.”
However a lawyer goes about composing a jury, Freed, Marguiles and Sommer all agree that without a strong jury, the legal system won’t function properly.
“I do believe that they get it right most of the time,” said Marguiles. “The goal of most juries is to act fairly, but you never can tell.”