[sws_yellow_box box_size="550"]By Steve Young, a trial lawyer in Costa Mesa, CA, and a blogger at Young on Trials. [/sws_yellow_box]
No one will admit, “I am prejudiced.” A few will say, “I can’t be fair,” but don’t stake your case on that happening.
You Can’t Get Them Out of the Jury Box With Dynamite.
A potential juror is an animal of strange mien. Upon receiving a jury summons, they may have called friends asking, "How can I get out of jury service?" When they arrive on the fateful day and sit in the jury assembly room, they pray they are not called to the courtroom.
When their name is read and they are sent to a courtroom, they calculate the odds of escaping the 12 seats in the box, because the last thing they want is to be put on a jury, until . . . they are put in the box. Then a strange phenomenon occurs. You as an attorney, facing these people who are so resistant to being on a jury, can’t get them out of the jury box with dynamite.
No one will admit, "I am prejudiced."
I have seen it over and over again. I finally figured that the reason someone who wanted more than anything to not get on the jury, is suddenly in love with the jury box is because no one wants to be rejected. No one wants to be told, "You aren’t good enough for our jury." They rue the walk out of the jury box with all eyes in the courtroom focused on them as they pick up their book, their coat, their bag and are told to return to the assembly room – "We don’t want you on our jury."
With this dynamic in mind, I had no idea what I was going to do during jury selection on a very big case. Both sides had exercised all their peremptory challenges (because there were horrible people for both sides in that venire panel). The clerk seated four additional prospective jurors. I felt I was in trouble when I arose to ask my questions and prospective juror number 11 crossed his arms and glared at me.
Most attorneys I have encountered do not know how to establish the foundation to dismiss a juror for cause. No one will admit, "I am prejudiced." A few will say, "I can’t be fair," but don’t stake your case on that happening.
“Your principles are very important to you aren’t they?”
I posed opening questions to Juror number 11. His answers scared the hell out of me. I had to stand there like the bull fighter who stares into the charging bull’s eyes no matter the fear in his heart. I had to absorb his abuse knowing I had no peremptory challenges left.
It’s not easy having your client attacked in front of the other jurors. It’s not easy remaining calm when you’re attacked. I worried, would this affect the other jurors? Were his answers ruining any chance at a fair trial?
My matador’s cape suddenly seemed very small as the beast charged my case.
I don’t know where it came from, but I responded with an observation, "Sir, you seem to me to be a person who is highly principled."
He acted like he did not know how to respond to this after his attacks. "Well, I yes I think I am."
"Your principles are very important to you aren't they?"
"Are you concerned that if you sit on this jury that you will be asked to set aside your principles by the attorneys or the judge or the law?"
"Now that you mention it, I guess that you’re right."
"Let me ask you this. What if during this trial someone tells you that you must do something that you think is contrary to your principles?"
"What if the judge instructs you and the other jurors that if you find certain things, you have to give an award that is against what you think is right? That would be asking you to give up your principles wouldn’t it?"
"Yes, I guess."
"Would you give up your principles that you hold dear?"
"I don’t think I would like that."
"None of us would like that, but what I am asking is: would you set aside your principles to rule in this case?"
"I don’t think I would."
"I think principles are what make us who we are. A man without principles is not much of a man in my view."
"Exactly. You have summarized what you feel in that one sentence haven’t you? If you relinquish your principles, you relinquish yourself."
"Yes that’s right."
"And that’s true whether it is me asking you to do it, or the defense attorney, right."
"What if the judge is instructing you on the law and you think the law is contrary to your principles. You wouldn’t follow the instruction would you?"
"Because you won’t do something that is against your principles, even if it’s the judge telling you to do it, right?"
"Thank you for your honesty, sir. It takes a brave man to tell a judge that your principles are more important to you than what the judge might instruct you to do."
When time came to challenge the potential jurors for cause, I succeeded over my adversaries arguments to get the principled man excused because he told the judge that he would not follow the instructions if they conflicted with his principles. Less than this and the court will probably not strike for cause and you better have a peremptory in your bag.
Would You Please Help Me?
I am in the process of developing a free webinar series on a unique method I have developed for conducting jury selection. This method facilitates juror interaction and the development of relationships in the jury. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire. You can help me develop these programs and assure that I cover every important issue. Please send an email to Bestlawyer@aol.com with your questions about jury selection. If you are interested in getting a notice when I'm ready to launch the webinars, send me an email with your name and request a notice.
Steve Young is a trial lawyer in Costa Mesa, CA, and a blogger at Young on Trials. He has conducted almost 200 civil jury trials during 34 years as a lawyer. His firm specializes in “last minute trials.” He handles handle trials in all areas including complex business and real estate, labor and employment, personal injury, and fraud.