Imagine you are sitting at counsel table, facing your first venire panel. You are going to pick your first jury. The judge says, "Counsel you may inquire."
You clear your throat and say, "Ladies and gentlemen, in this case my client is a small business person. The defendant is a competitor who . . ."
"Counsel, this is not opening statement," the judge interrupts.
Again you clear your throat and begin, "Has anyone had an experience where someone did not play by the rules?" No one says anything. You look right, look left. Still no one responds. "Nobody. Okay. My next question is, 'Do any of you have a professional license?'"
What just happened?
A jury selection is like a cocktail party. You are talking to people you don't know. As attorneys, we expect to ask a series of questions of complete strangers, and because the judge has put them under oath, they should answer every question honestly and forthrightly. It isn't going to happen.
The first problem with our attorney in the example is that he wants to get right to the good stuff without investing any time in the lead up. The attorney did not give the jurors time to feel comfortable with him. He certainly did not share anything of himself with the jurors. He feels like the jury is cold because his questions supposedly fell on deaf ears.
The question, "Has anyone experienced someone who did not play by the rules?" is a fabulous question for a case where someone has done something anti-competitive, or injured someone by negligence, or any number of cases. If the question is a good question, why didn't the jurors respond?
A few seconds isn't enough time
Jurors need time to ponder deep questions - and your questions should be deep questions so you must give them time with every question. A few seconds isn't enough time for jurors to respond to thought-provoking questions. The deeper your question, the longer jurors will need to process it and respond.
If you ask a question that seeks only information, such as, "What do your adult children do for a living?" the jurors' answers will come quick. We recall, process, and respond.
On the other if you ask deep questions that the jurors must ponder, you must give them time. For example, "Name three people who have had the greatest influence on you." Could you answer that question without taking time to ponder? Of course not. It takes time to think over your life, consider the turning points in your life, and analyze the reason for those turning points. Then you have to think back over all the important books you've read, and all your teachers and religious leaders, and finally get back to your parents. After that quick analysis, you have to process all your choices to whittle the list to only three. It is not a quick process.
Effective jury selection is a series of deep "processing" questions rather than informational questions. The power of the questions however is lost if you are impatient.
When the jurors stare at you
When you ask jurors thought-provoking questions, there may be a long silence. Don't interpret the silence as a "No." Jurors really want to answer your question because we are honored by people who ask deep questions of us. Remember the cocktail party. "Fluff" questions rarely make an impression. You will be remembered after the party if you ask a deep question related to a tidbit shared by someone in your conversation. The same is true of jury selection.
Unfortunately, silence is an oppressive weight pressing down on us. Attorneys feel "the jurors must talk to me or I am a failure." When jurors greet our questions with silence, we feel the urge to quickly advance to another topic, hopefully one that will generate a better response. That's probably what our young attorney felt. When he saw that the jurors weren't responding (aloud) to his question, he jumped to his next topic. But if he'd simply given the juror more time to answer, he would have received a response, and would have been able to learn more about the jurors.
Here is a process for posing deep questions.
Give jurors time to listen
If the attorney asks a question, then moves on without asking the jurors to answer, he sends the message that what the jurors think and feel doesn't matter. The jurors feel that the attorney has a checklist of questions to get through and they are just there as his audience. We gain power with the jurors when they feel that we honor them as persons worthy of listening to and caring about.
Attorney Steven Young is based in Orange County, CA, and publishes the YoungonTrials blog. Sign up free reports and notices of new posts at YoungonTrials.com.