By Jocelyn Cinquino
Special to the Legal
Your options and opportunities for learning about prospective jurors in jury selection may seem limited—you only get so much information on jurors from the court, you don’t get to ask every question you would like and people may be reluctant to speak up in open court. Those reasons make it even more important to take advantage of chances to use the information you do have to start laying the groundwork on your case. You can do this by asking certain questions of jurors who on the surface seem destined to be sent right back to the jury room to serve in someone else’s trial rather than be a potential juror for yours.
Sometimes you just know certain people will get kicked off for cause or they will be the number one target of someone’s strike list—they are the doctors in a medical malpractice venire or the business attorney sitting in the pool on a contract case. But you can try to use their responses to your advantage anyway with the kinds of questions you ask them in court.
Most cases have some element of information that needs to be taught to and learned by the jurors who will serve and there’s no better time to start doing that than in voir dire. This is where you can spend a few minutes talking with that doctor about the basic medical issue in the case through your perspective and getting other jurors to listen. Saying, for example, “Based on your background you would agree, or you understand, that this particular condition/situation can be caused by a number of different things…” or, “From your practice, you understand that parties in a contract…”gets everyone else to hear that well before your openings and witnesses take the stand.
To do this well, you need to keep a couple of factors in mind. First, keep it basic—now is not the time to try out a theory that has varied levels of expert support or is going to take a week’s worth of testimony to properly explain (which in itself can be a problem anyway). The more you can keep the takeaway jurors get to a bullet-point, widely accepted concept, the better. Second, evaluate the kind of juror this is likely to be before you ask them the questions. If they seem difficult, disinterested or combative for some reason, they won’t make a good enough impression on others to make them and their understandings seem credible in the first place. And, lastly, know where to set the limit. One carefully crafted question is often enough. You are not putting your case on through this prospective juror, so you need to know when to pull back and how to avoid overstepping the boundaries that can lead your adversary to start challenging your questions and jurors to start tuning out.
Recognizing voir dire is as valuable a part of trial for advocacy as any other can help make the ways you use that opportunity to your advantage more apparent. Every juror has something to offer to the litigation process. Taking this viewpoint, that can be whether they end up serving or not.
Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and an M.A. in forensic psychology from John Jay College of Criminal Justice. For more than 10 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Cinquino at firstname.lastname@example.org or call 917-733-0770.