Academic journal article Defense Counsel Journal

Ten Rules for Great Jury Selection: With Some Lessons from Texas Case Law

Academic journal article Defense Counsel Journal

Ten Rules for Great Jury Selection: With Some Lessons from Texas Case Law

Article excerpt

JURY SELECTION is the most difficult and intimidating part of the trial. It is intimidating because the trial lawyer must not, if he is to learn anything about the potential jurors, simply follow a prepared script. While preparation is crucial, such preparation must include anticipating and preparing for the unexpected. The trial lawyer's job, especially during jury selection, is not to talk, but to listen and to "feel." It is to "connect" by being open, thereby inviting the prospective jurors to do the same. Good, effective jury selection requires ten (10) things:

1. A complete understanding of the relevant case law governing jury selection, including limits on questioning, bases for strikes, shuffling and alignment matters, Batson and related issues, objections and preservation of error.

2. A complete mastery of the facts of the case, including, most importantly, those facts which present a problem for your side of the case.

3. A theme or story of the case that embodies the basic values of the community, and which clearly and emotionally says that your side is right and the other side is wrong. A winning theme must trigger the jury's sense of injustice.

4. A good familiarity with the basic demographics of the community, such as neighborhoods, socioeconomic levels, educational levels, types of employment, and even political leanings.

5. A plan which includes identifying and dealing with the problem areas of your case, and which identifies any bias or prejudice with respect to those facts, your clients, and the willingness of the potential juror to at least consider doing what you will ask them to do at the end of the trial. The plan must envision the types of questions you will ask, how and why you will ask them, anticipated objections, anticipated (and unanticipated) responses, and follow up questions.

6. Anticipation of the opponent's voir dire, including the types of objections that you wish to make.

7. A good understanding of human nature (we do not know nearly as much as we think we do.)

8. Experience.

9. Flexibility.

10. Confidence.

The main purpose of jury selection is to discover any bias and prejudice against you, your client, or your case, and to provide you with the sufficient information to move to strike potential jurors for cause, and to enable you to make informed, intelligent (even though not always rational) peremptory challenges. To the extent that communication and the battle of credibility begins the moment the jury panel walks into the courtroom, a very legitimate goal of voir dire is to persuade, although "argument" of the case will not be allowed and is not advised. Early argument likely will be rejected by the jury panel, damaging your credibility. Your primary objective is to learn.

Bias is "an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined, for it means prejudgment, and consequently embraces bias: the converse is not true." (1)

I. Important Texas Cases

The following cases provide a representative sample of the case law relating to voir dire from a jurisdiction with which I have some familiarity. Many of the issues raised by Texas law will apply equally in other jurisdictions.

A. Cortez v. HCCI-San Antonio, Inc. (2)

Cortez was a personal injury case against a nursing home. During voir dire, the plaintiff's attorney asked one of the panelists, an auto insurance adjuster, questions about his experience as an adjuster. The panelist told the attorney that his experience as an adjuster gave him some "preconceived notions." (3) He went on to state that he would "feel bias," since he had seen "lawsuit abuse so many times." (4) However, although he stated that "in a way . …

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