The Authentic Lawyer and Jury Selection
By Andrew Mishlove on August 31, 2016
Are all lawyers tricksters? Are all lawyers liars? Are all lawyers merely looking for loopholes to free the guilty? And so on and so on.
These are legitimate questions in the mind of potential jurors. That’s what we, as trial lawyers, walk into every time we stand up to begin the jury selection process, or voir dire.
How should lawyers deal with the natural skepticism of the jury panel? I can answer that question in two words: honor it!
What I mean is that we should not go into jury selection with an agenda; it is not the time to argue our case. My thinking on this has changed dramatically recently.
I used to believe and teach that there were three functions of the jury selection process. The first function is to establish rapport with potential jurors. That’s okay insofar as it goes, but it is a superficial approach. The second function is to introduce the themes of the defense and start the persuasive process. That is misguided as the jurors still do not know whether to trust you. The third is to identify and strike biased jurors. That is true, but it fails to define what we mean by bias.
I now have a different paradigm for jury selection, as practiced at the Spence Trial Lawyers College. It starts with authenticity. Simply put, the trial lawyer must be honest with the potential jurors about the danger points in the case. This is more than merely softening the blow (which is still important). It’s about being honest, so that the jurors can see you as a person who may be worthy of trust.
Social science teaches us that when strangers are thrust together, they engage in an instinctive process of group formation. Human beings instinctively seek to identify and associate with those we feel we can trust; we erect barriers to those whom we identify as untrustworthy. As we begin the jury selection process, potential jurors are engaging in this group formation dynamic on a subconscious level. Our challenge as trial lawyers is to be within that group, to be within the circle of trust.
There is a clear requirement that precedes all others. To be trusted, you must be trustworthy. You must be genuine. You must be authentic. You must be honest. You must not try to hide your personal flaws or the flaws in your case. You must expose them.
This paradigm also gives us a different paradigm of bias. We may have thought of a biased juror as one whose opinions did not coincide with our theory of the case. So we may not want a police officer on a criminal case or an insurance adjuster on a car accident case. All of that may still be true, but for different reasons.
A better way to look at bias is in terms of trust. A biased juror is one who will not trust us enough to engage in the discussion or who will not listen to other jurors. A biased juror is one who sends us the subliminal message of distrust. The old definitions of bias still apply, but we must also go deeper.
The primary requirement is that we set aside the persuasive agenda in jury selection. Rather, we facilitate a group discussion regarding issues in the case, all the while gratefully honoring the opinion of anyone who participates in the discussion.
So, for example, rather than trying to convince potential jurors that the "'beyond a reasonable doubt" standard favors our case, we facilitate a group discussion about feelings regarding the burden of proof, encouraging all points of view. We do this by using very open questions, always seeking to know the opinions of others, without trying to educate the potential jurors.
To the uneducated observer, we may not be scoring points in terms of convincing the jurors of our position. What is actually happening, however, is that by facilitating the discussion and honoring the opinions of all, the jurors feel free to share their opinions in a more meaningful way. This goes beyond merely establishing rapport. It requires genuine vulnerability and honesty; but it is a prerequisite to be trusted. A group is forming and we become a part of it. That is the beginning of the trial process. Only when this has occurred, may we successfully begin to argue our case in the opening statement.
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