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Robert Zausmer’s Article Featured on Front Cover of The NYLJ’s Litigation Supplement

Taking the ‘Bull’ Out of Jury Selection

There is no such thing as the “science” of jury selection. Any who tells you that is full of “Bull.”

By Robert N. Zausmer | February 08, 2019

One of my wife’s favorite TV shows is a weekly series on CBS called “Bull.” For the uninitiated, the premise of “Bull” is that Michael Weatherly (formerly a supporting actor on my wife’s absolute favorite TV show “NCIS”) is Dr. Jason Bull, who is described in a Google synopsis as a “charming and cocky psychologist” who owns a “trial consulting firm … which employs (besides himself) teams of experts (using) high tech data to understand jurors, lawyers, witnesses and (the litigants)” to construct “effective narratives” to help attorneys who employ his company to win cases.

The show may be entertaining, and even seem realistic, to audience members who never have been exposed to the wonderful world of litigation. However, for those of us attorneys who try cases, especially before juries, what is depicted on “Bull” is entirely disconnected from our reality and—there is no other way to say it—total bull. (Full disclosure: I have never actually watched an entire episode of “Bull.” I either drift off to sleep after watching the opening scene and a couple of minutes of what follows. Or, during the baseball season, I watch a few minutes and then go downstairs and watch my beloved San Francisco Giants on MLB Extra Innings, or some other televised sporting event.)

However, what follows are my own observations on what really matters when engaged in jury selection (consider them suggestions or helpful hints) in contrast to the fantasy world depicted on “Bull.”

Be Yourself. I have two priorities in trying cases before juries. I want the jurors to like me (as a person and lawyer) and to like my case.

During the media frenzy over the “OJ trial,” numerous attorneys were interviewed on radio and TV, giving their take on what was transpiring daily in the courtroom. One of them, Gerry Spence, a well-known trial attorney from Wyoming, was a regular on the Imus morning radio show. Spence once told a story which had a lasting impact on my approach to trying cases before a jury. He was describing his first major trial in which he believed he had a “can’t lose” case worth lots of money. As a young plaintiff’s attorney, he felt that he had to be an “attack dog,” and, therefore, mercilessly went after every participant in the trial, his adversary attorney, the adversary’s client and witnesses, and even the trial judge. At the end of the case, the jury came back with a verdict against him. Spence was totally devastated. He spoke to the jurors afterward and asked how they could find against his client when he had such a great case. One of the jurors agreed with him and then said, “Mr. Spence, we did think you had a strong case, so how come you made us hate you?”

When I interview jurors in voir dire, that profound statement always is in my mind. I consider myself to be an honest person, with integrity, a “straight down the middle guy,” and not flamboyant or flashy. That is exactly how I try to present myself to the jurors. I may not dazzle jurors with my personality, but I believe jurors have always responded well to my persona.

Conversely, I have seen many lawyers completely turn off jurors, either by being overly aggressive, obnoxious and disrespectful to their adversaries (and even to the court) either because they are inherent jerks or think jurors (or their clients) are impressed with the “macho” approach.

Trust Your Gut. I am a very strong believer in personal chemistry, especially in dealing with, and selecting, jurors. Although I do not have Dr. Bull’s psychologist credentials (he’s actually portrayed on the show more as a mentalist), I always have had a good sense of how to “read” people and how to connect with them. The problem is that in voir dire you basically have 5-6 minutes to evaluate persons, who you never met before, as suitable jurors. So, basically, I trust my instincts. If a juror’s background may not make him/her a perfect fit for the case, but I feel a good connection to the person, they make the cut. The converse also is true.

The irony of jury selection, which also makes it so interesting, is that in today’s world, where people are completely immersed in communicating electronically, voir dire is that rare opportunity for face-to-face interaction. I try to keep my questions, and interplay with jurors, low-key and friendly. I use humor when appropriate. I have one quirk (which hopefully endears me to some persons in the general pool): namely, I always use one reference to a lyric from a classic rock song in questioning one of the jurors at some point during the voir dire. Obviously, if I am using a line from Alice’s Restaurant (“there was a third possibility we hadn’t considered”), I don’t do it with a “twenty something” juror who may not know who Bruce Springsteen is, much less Arlo Guthrie.

Also, I do not pander to jurors who I have identified as having a particular interest. For example, if I spot a juror in the pool wearing a Mets cap, and he makes it into the selection group, I will make some kind of a baseball related comment to a juror sitting three seats away from him, even though the purpose is to endear myself to the Mets cap wearing potential juror three chairs to his left.

Don’t Avoid Bad News. One of the biggest mistakes I see attorneys make in voir dire is not making jurors aware of “problems” in their case. While proper protocol is that the attorneys cannot go into any great detail about the facts of the case, you are committing trial suicide if you select a jury and they first learn about a major deficiency, shortcoming or some other significant impediment to your case in the opening statement (or, even worse, from the witness stand).

Several years ago, I was representing the plaintiff in a multi-million-dollar brokerage commission case based on an oral commission agreement—an obvious problem. However, I danced around it by telling the jurors in voir dire that, under the law, brokerage agreements could be oral as well as written and “could they accept the law as the court charges even if they don’t agree with it.” My adversary, a top-notch, very experienced trial attorney, then got up and (in his own “folksy” style) completely won the jurors over by asking each of them whether they would ever buy an expensive item (such as a house or building) on a “handshake.” By the time we finished jury selection, I was totally despondent, since it was obvious that his “reality check” approach had trumped my legal rationalization concerning oral agreements. Fortunately for me, the case ended in a mistrial. I had learned my lesson. In the retrial (against a different attorney), I went into depth (even though, technically, I was not supposed to) in the voir dire to explain why my client had not been able to secure a written commission agreement.

Deal With All Controversy Outside of the Rest of the Jurors’ Presence. I always explain to jurors that if they are asked any questions that make them uncomfortable they should ask to discuss their issues outside the presence of the rest of the panel. Unfortunately, not all jurors get the message. However, it is imperative that you avoid embarrassing a juror publicly, or that the juror discusses something in front of the panel that will negatively impact how the rest of the pool will think about your case. Also, especially in civil cases where you only get three preemptory challenges, when you need to talk a juror off the panel (even when he/she doesn’t take the hint), that must be done outside the presence of the rest of the jurors. You never want to appear to be badgering a juror, or trying to persuade the juror to dismiss him/himself, in front of the rest of the prospective panel.

Explain to the Jurors Up Front How the Voir Dire Process Works. This is related to the preceding point. Several years ago I was called for jury duty and became a member of a prospective panel. It was a great educational experience. I decided not to disclose to my fellow potential jurors that I was an attorney. During the voir dire, the attorneys (who also did not know I was one of them) kept taking jurors outside. For some reason, they remained outside for extended periods. The problem was they never explained to the panel why they were interviewing individual jurors outside the presence of the rest of the group. The voir dire room was located in the same area as the courthouse cafeteria. The jurors in the room got really annoyed, and several became convinced that the attorneys were in the cafeteria having coffee while the rest of the jury was sitting around. I made sure after that experience to fully explain to my jury panels at the beginning of my presentation everything that was going to occur in the voir dire process.

These are just my own thoughts, inspired by watching “Bull,” about the real world of jury selection. I have no doubt that if 100 lawyers were asked to share their thoughts on the subject, there would be hundreds of other observations on how the process should be done. And, maybe, that’s a good thing (especially for young lawyers who are just beginning to learn their craft).

However, here’s the bottom line: There is no such thing as the “science” of jury selection. Any who tells you that is full of “Bull.”

 

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