A few months ago, Melissa and I were talking with one of our favorite clients, Buddy Schulz, when he commented that Melissa’s job during jury selection involved sorting out responses, and non responses, of potential jurors. He was noting that it is one thing to evaluate what someone says during jury selection (or perhaps with any interaction, including job interviews, interrogations, etc.). But, it is clearly another thing to “hear” what they don’t say, that is, what they are not telling you. As a trial lawyer, or trial consultant, during that short period when the jurors can talk, known as voir dire, or jury selection, it is critical to “listen” for things not said. If there are things in the juror profiles or in the voir dire questions that do not come out or are not addressed, it is the lawyer’s job to probe, and the trial consultant’s job to nudge or encourage the lawyer to ask, even if it is a sensitive or uncomfortable topic. In today’s world of jury selection, the added tool of computer driven background and social media searches sometimes fills in the blanks by finding details the prospective juror is not revealing. Thus, such searches supplement what is being said in court. Given that lawyers have such limited opportunities to query the venire, being mindful of what they need to know means sometimes pressing a line of questioning into the unknown or unspoken. Clearly, there are topics that people would rather not discuss, but the lawyers must inquire, even if that means utilizing supplemental questionnaires for some of the most sensitive topics.
Jury selection involves, at least for me, interpreting and de-coding the things people say and do and the things they don’t say or do. In fact, I spend just as much time observing the nuances of people’s behavior as I do in listening to the words they say. When a potential juror is being questioned by a judge or an attorney during the voir dire process, there are several factors that must be taken into consideration when I am making a recommendation to my client about whether or not to excuse this person (keeping in mind that jury selection is actually the process of de-selecting potential jurors). These factors are: (1) social desirability, which is the impact of the formal courtroom setting, the judge as authority figure, etc. on the jurors’ responses; (2) most people’s fear of public speaking, such that their answers are often terse and provided as a way to remove the attorney’s focus on the juror answering the question; (3) conformity, the process of saying and doing the same things as everyone else; (4) the approximate “match” of this juror to the statistically significant profiles of favorable and unfavorable jurors that emerged from the pre-trial research we conducted on the case; and (5) the likelihood that answers are being provided in a way the potential juror believes will result in dismissal from jury duty. There are other factors as well, but in the end, I am processing a multitude of information, quickly, with an emphasis on providing a 100% accurate assessment of each potential juror for my client. Considering everything that is happening in the courtroom, among all those who are present, is something that, for me, is part of what the clients are relying on when they retain me to help them select a jury.