Introduction
Cases can be won and lost on voir dire. Success in jury selection relies on an attorney's interpersonal skills, mainly an attorney's ability to stand in front of a group of strangers and convince them that he or she is to be trusted.
While jurors are influenced by external factors such as knowledge of the case. More important are the internal factors, including their own past experiences and psychology. Internal factors are not only highly influential, but are also immeasurable, as the jurors themselves typically cannot explain their influence nor are they even aware of those influences. As a result, these internal factors are all too often overlooked.
Diversity Matters
First we must be honest about the reality of voir dire. While it is, in fact, the process by which biased jurors are removed from the juror pool with aspirations of producing a "fair and impartial jury," an attorney does not leave the role of advocate at the courtroom door when commencing voir dire. Being an advocate means that if an attorney believes that a juror is biased in his or her favor, that attorney will try to keep that juror.
Diversity is more than just race – it means valuing differences such as ethnicity, gender, age, religion, sexual orientation, socioeconomic and educational backgrounds. Investing in diversity goes beyond mere stereotyping, such as assuming an injured plaintiff wants a jury composed only of liberal-minded, soft-hearted, and generous people. Rather than focusing on generic stereotypes, attorneys should accept that as advocates, they are seeking a jury most favorable to their case. Attorneys must recognize that this begins with how the jury feels about the advocates. In turn, law firms must encourage their attorneys to use their diversity to relate to jurors as part of being zealous advocates for clients.
Diversity in a law firm allows a firm to empower its clients. A diverse trial team has many advantages, as not only is there is a visual benefit of the jury seeing a diverse team, but it also allows the trial team to be strategic. A firm with diversity among its attorneys can decide on a moment's notice who is best suited for voir dire based on jury makeup. If jurors believe that an attorney is a relatable figure, they are more likely to be candid in their responses during voir dire, and to trust that attorney more than the opponent throughout the trial.
Where Attorneys Unnecessarily Limit Themselves
While the peremptory challenge is a legal tool used to remove biased jurors, empirical data shows that many jurors who actually sit for trials are influenced by prejudices and biases. Despite this fact, attorneys often struggle with the importance of addressing how race and gender-based stereotypes inevitably affect people's judgment and decision-making which can result in losing juror biased in the client's favor.
Much of this failure to capitalize on jurors' favorable biases is due to the fact that freedom to select the perfect jury has its limits. The Seventh Amendment to the Constitution guarantees that a defendant in a civil suit has the right to a fair trial, by an impartial jury. Furthermore, in Batson v. Kentucky, 476 U.S. 79 (1986) the U.S. Supreme Court made it illegal to reject jurors on the basis of race. The Court determined that a man is entitled to be tried by a jury which represents a cross section of his community, and reasoned this could not be accomplished by rejecting jurors based on their race.
As a result, some argue that attempting to explicitly use one's race or gender to gain favor with a potential juror would likely cross the line established in Batson, believing it is unconstitutional to use a potential juror's diversity as the basis for a peremptory challenge. However, this extrapolation has limited attorneys unnecessarily, as Batson and its progeny regard excluding a juror on the basis of race, ethnicity, or gender. As set forth below, there are a myriad of ways diversity can be utilized within constitutional bounds.
Proponents of intentionally maximizing diversity in their legal teams argue that it is unethical for a defense lawyer to disregard what is known about the influence of race and sex on juror attitudes in order to comply with Batson. "The ethical obligation to comply with Batson conflicts with the ethical obligation of defense attorneys to vigorously defend their clients: The task of the lawyer, therefore, is to outsmart the system--to figure out the demographics of justice and to manipulate it during jury selection by eliminating jurors with the so-called wrong personal characteristics." Abbe Smith, "Nice Work if You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523, 524-28 (1998).
The importance of eliminating jurors with biases against your case is consistent with public sentiment. A 2008 Harris Poll showed that less than three in five Americans believe juries can be fair and impartial all or most of the time. Just Under Three in Five Americans Believe Juries Can Be Fair and Impartial All or Most of the Time, Harris Poll, Jan. 21, 2008. And it isn't just public opinion - empirical data supports the notion that many jurors who actually sit for trials are influenced by prejudices and biases.
This should not be surprising, as attorneys themselves are similarly influenced. Attorneys have all learned stereotypes from their culture and environment. When a lawyer sees a potential juror, he or she will almost instantaneously categorize that person on the basis of age, race or sex. Often unconscious of the stereotyping, an attorney will pay greater attention to information given by that juror that confirms their expectations. Studies have also shown that information that confirms expectations based on a stereotype will be recalled more easily, and any ambiguous information will be interpreted to conform to that expectancy. Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 228 (2005).
As jurors make the same categorizations about the attorneys conducting voir dire, using diversity within a trial team to elicit favorable characterizations should be a focus of voir dire questioning. Questions that provide information that not only reinforces, but makes the jurors' inherent biases apparent to the legal team, should be an intentional focus. In doing so, there is a greater probability that those jurors with biases in favor of your case can be retained, and those whose biases do not favor your side can be challenged.
The Ultimate Goal – Getting the Juror You Need
Conducting a successful voir dire has as much to do with the manner in which questions are presented by an attorney as the questions themselves. The importance of connecting with the jury on a personal level can not be overstated.
One of the best ways an attorney can connect to a juror is to identify commonalities between the juror and attorney to establish a connection prior to trial. In the same way, jurors that see an attorney as similar to themselves will make attributions to the attorney such as the trustworthiness of that attorney. Capitalizing on similarities can be as simple as a slight, subtle change in dialect when greeting jurors. An African American female attorney who has tried many cases explained that she intentionally tailors her greeting to reflect the characteristics of the juror. When she greets a middle aged Caucasian woman, she might simply say "Good morning Ms. Morgan" to reflect that she is polite, articulate and trustworthy. When greeting an African American woman, she might use a more causal "How are you doing Ms. Morgan?" to reflect a familiarity that is conveyed to that juror by the dialect and tone of her greeting. In instances like this, what is said is not as important as using cultural mannerisms to communicate with the prospective juror.
Other techniques can be even more subtle, but highly effective, such as a slight change in an attorney's demeanor, or even just making a connection through eye contact. An African American male attorney explained that African Americans tend to communicate with their eyes. When walking down a street, it is a part of their culture to do a head nod of recognition when they see another African American. Therefore, when he sees black jurors, he makes a point of looking them in the eye for a bit longer so that commonality and understanding exists between them.
In another instances, a female Latina attorney who practiced in Laredo, Texas stated she appreciated the opportunity she received solely because of her Hispanic background. She was taken to trial very early on in her career because the jury pool was composed of mostly Hispanic people and her firm recognized the value her heritage had with the jury. During voir dire she made a point of introducing herself with her natural accent so that the jurors recognized that she was one of them.
While keeping suggestions like these in mind, an attorney must be careful not to alienate other jurors in this process. Attorneys for the defense have a particular advantage in this regard, as they conduct their examinations after the Plaintiff. Therefore, they retain the benefits of the knowledge derived from the prior examination, and consequently can incorporate this into more targeted questions to find commonalities among the trial attorney and the remaining jurors. Defense attorneys who are diverse also have the advantage of switching the attorney conducting voir dire at the last moment if something is revealed during plaintiff's questions that reveals a better match exists.
Although many attorneys are aware of the importance of posing questions relating to bias and life experience during voir dire, a great deal discount the importance of relating the similarities they find to themselves. This practice can be invaluable, but requires law firms to have already made a commitment to diversity. If a law firm is lacking in diversity, it is lacking in its ability to provide the best representation for its clients.
While some firms have begun to tailor their trial teams to be more diverse, many have not. Firms are still composed largely of white males, where minorities account for only 5.4% of partners, and 18.1% of associates. Minority women account for less than 2% of partners and 10% of associates. This places firms who have failed to invest in diversity at a distinct disadvantage when connecting with any jury. Survival of any business enterprise in today's world requires that the dialogue be open and honest about diversity. Recognizing the importance of diversity and making a commitment to it can only strengthen the success amongst law firms within the legal community. When we look at the jury pool today, we no longer see a majority of any one race, gender, or socioeconomic status. We see the melting pot we have become and a successful firm is armed with the ammunition to relate to that melting pot.
Stacy L. Douglas, Wood, Smith, Henning & Berman