Voir Dire, the Art of Jury Selection
I have picked a handful of juries over the years and I must tell you that it can be one of the hardest parts of a trial for a lawyer. First off, we really do not pick the jury. The court sends out random notices to citizens that they have been selected for jury duty and tells them where and when to show up or what number to call to find out about having to show up. Then, they all go to a room and watch a video, and some get randomly called by a clerk to go to a particular court room. Perhaps more than one trial is going on in the court house. Then those random folks sit in a court room and the clerk randomly selects (in most cases) twelve of the group to get in the jury box. Frequently the judge will ask several questions and he may excuse some of those folks only to have the clerk randomly select replacements. Then, finally, the lawyers in some jurisdictions get to ask questions and strike some of those potential jurors only to have them randomly replaced by others in the room. In our question asking process we are trying to learn enough about each juror to determine if he or she has any natural biases that would negatively impact our client or benefit the other side. Since both sides of the case participate in the process, in the end we should have in theory a fairly neutral jury. Let me give you some examples of the biases we often deal with when picking a jury. I try a good many motorcycle injury related cases. Some folks think motorcyclists get what they deserve (translation= you ride you are partly at fault) when they have been injured by another motorist because motorcycles are inherently more dangerous than a car. Perhaps some of the potential jurors have had experiences not seeing motorcycles on the road and identify with the defendant and hesitate to hold the negligent driver accountable. Some folks think all motorcyclist are bad people (translation= they deserve it), like these believers have watched way to many TV shows. The same type of concern happens to the defense when you represent someone who has been injured by a large commercial truck. The fear they have is that the jurors will have a natural bias against big commercial trucks (because it makes them nervous on the road) and the bigger truck can cause serious harm (translation= they are dangerous) and it is a corporation (translation= they can afford to pay for their mistakes). It is not easy to get potential jurors to open up to you about their beliefs, particularly those beliefs that may be biases. Too, they just met you, you are a stranger, they are in front of other strangers in a place they are uncomfortable and not accustomed to. Jury selection is an art, some lawyers are naturally better communicators than others but like all things, preparation, practice and experience makes us all better. When I talk to jurors about bias, I talk about the bias I have for a sausage biscuit over a ham biscuit. I would want to be fair if I was randomly selected to decide the winner of a breakfast biscuit contest, but if one was sausage and one was ham, as fair as I might want to be, my bias/favoritism means the sausage biscuit is going to win, and the contestants need to know of that bias. I would be a better judge or juror for a different kind of biscuit/trial. Often if we can put our legal questions in everyday scenarios, we can learn a lot about our juries and perhaps win our clients trial.