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October 31, 2022
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Reprinted with permission from the October 28, 2022 edition of The Legal Intelligencer © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

The Judge said, in hushed tones to the attorneys huddled around the bench, “Any problems if I excuse Mr. Chapman?” It seems like these are words our potential jurors long to hear. Why is that, and how can lawyers who pick juries change the paradigm?

Recently, I chose not to get out of jury duty. What a way to celebrate my 49th birthday. A line of potential jurors waited to step through the metal detector in an alley behind the courthouse. It was a cloudy day, and an 8:15 a.m. start seemed earlier. “Put your phones, keys, wallets and umbrellas on the belt,” said the guard. We did. On the other side we gathered our things; then, we entered the big room. More than 150 strangers stood, sat, leaned, and generally looked awkward as we waited. I knew what was coming, but the rest did not. They knew their bosses wanted them at work and kids wanted them home. They wanted out because of vacations scheduled, physical problems and general unfairness they had to be here at all. Some knew it was a $9 a day job—that did not help.

You can understand their sentiments, no? Perhaps, dear lawyer, you have not been to jury duty and you do not try cases before a jury. Jury selection truly is a process:

• Wait in the big room for hours while the jury manager bustles about.
• No one tells you what type of case it could be, when we were put in a small group and assigned a number.
• Sit and wait again for your newly formed group to be called.
• Eventually, you are escorted to the courtroom.
• Enter the courtroom, in numerical order, as suited people watch you closely.
• It remains unknown what type of case this is.
• The Judge does his best within the time allotted to explain how the voir dire process works and, perhaps, gives the French origins of the words.
• Then, one of the lawyers stands up and begins to speak.

Stop for a moment and step out of the jurors’ shoes and into those of the lawyers waiting in the courtroom. By the time most civil cases make it to trial, the attorneys have lived with the case for at least two years. It is no longer just a case—they are deeply involved with a mom and dad who lost a child, a guy who could not work because his right wrist was broken, or an older woman who is wheelchair-bound after a fall. They sat at their client’s kitchen tables and met their friends. They prepared witnesses to give testimony about some of the most painful experiences of their lives. They need a jury they can trust to listen to the facts, decide only after hearing all evidence, and not allow normal human biases to affect their decision-making. And, maybe, the lawyer has not picked a jury in two years and is nervous. The tension up the back of their necks and the inability to eat breakfast reminds them of today’s gravity.

The convergence of intense lawyers and a group of 60 potential jurors, who do not know the system and just want to go home, seems perilous. Into this swirling mist of emotions, I left the big jury room and carried my “Juror #4” sign to sit down on the judge’s left. Thejudge told us it was a medical malpractice trial. One of the lawyers stood up, introduced himself, and started asking questions. Without much context we were dumped into the case the lawyers had been working on for years.

Depending on what side of the aisle you sit on, you may subscribe to voir dire theories written for trial guides or for the defense. We can avoid those here. Instead, from what I watched, beware the following:

• Projecting the process is happening to you, rather than you leading the process;
• Not facing your jurors, as if you did not know the seating in advance;
• Not being heard when the microphone is not where you stand to face the crowd;
• Asking detailed issue questions before giving the panel background;
• Using incomprehensible industry-specific terms or medical lingo;
• Scolding jurors who forget to stand, give a number, or say their name before answering.

And, consider ways to develop rapport:

• Explain who you are and your role;
• Introduce your client and point out the other lawyers and their client;
• Tell what both sides agree the case is about;
• Describe voir dire and why it matters;
• Offer context for why you need to learn more about them;
• Talk about bias and how it makes a particular person better suited to hear one type of case more than another;
• Only then, ask questions revealing the setting, who was involved, and more about what happened.

We should all go through the jury selection process—as a potential juror. We will do better for our clients if we learn to think as a juror. Help jurors understand their importance in the best judicial process in the world. With your actions, show them they are irreplaceable. Convey how valuable it is to give their time to see justice done. Help jurors be heard. Share, as soon as possible, what jurors are to do and how to reach the right conclusion for the right reasons. Give them the gift of pride walking out of the courthouse. Having granted these wishes and put on a good trial, we can presume to expect our jurors will be ambassadors to the next set of citizens who pull a summons from their mailbox.

Joseph Chapman, of counsel at McNees Wallace & Nurick, practices in the personal injury and litigation groups.