JURY SELECTION JEFFREY B. THOMPSON Attorney at Law P.O. Box 1201 Alto, New Mexico 88312-1201 (505) 336-7788 STATE BAR COLLEGE ‘SUMMER SCHOOL’ Sun, Surf & CLE July 26 - 28, 2001 Galveston, Texas CHAPTER 5 JEFFREY B. THOMPSON Attorney – Mediator P.O. Box 1201 Alto, New Mexico 88312-1201 505-336-7788 [email protected] EDUCATION: B.S., United States Military Academy, 1969 J.D. with Honors, The University of Texas Law School, 1974 PROFESSIONAL ACTIVITIES: Solo Practitioner Mediator – Texas and New Mexico COMPUTER CONSULTANT – COMPUTERS IN TRIAL SETTINGS – DEMONSTRATIVE EVIDENCE Frequent lecturer on computer technology and its uses in a trial practice Consultant to Texas Law Firms regarding computer solutions for presentation of demonstrative evidence LAW RELATED PUBLICATIONS AND HONORS Texas Chapter, Order of the Coif, 1974 University of Texas School of Law Adjunct Faculty Member 1994, Texas Civil Procedure I Trial Advocacy Faculty Member 1989-1994 Intensive Trial Advocacy Program Author/speaker 1989-1992, 1995 Annual DTPA Conference on Preserving Error in the Charge Conference Author/speaker 1992 Trial Tactics Seminar on Videotape Depositions and Discovery Author/speaker 1993-1995 Annual DTPA Conference on How to Submit a DTPA/Insurance Code Case Author/speaker1996, 1998 and 1999 Annual DTPA Conference on Jury Selection from the Plaintiffs Perspective Author/speaker1997 Annual DTPA Conference on Champagne Visuals on a Beer Budget Author/speaker 2000 5th Ann. Evid.& Procedure Symposium on Champagne Visuals on a Beer Budget University of Texas School of Law - Mock Trial Participant, All-Star Mock Trial Demonstration, The University of Texas Law School, 1992 Coach, Various Mock Trial Teams – 1992, 1993, 1995, 1996 State Bar of Texas Author/speaker1990 Advanced DTPA-Consumer Law Course on Preserving Error in the Charge Conference Author/speaker 1992 on the Practical Effects of FDP/Delanney on DTPA Claims Author/speaker 1993 Advanced DTPA Ins. Consumer Law Course on Tactical Use of Video Depositions Author/speaker 1994 Advanced DTPA Insurance Consumer Law Course on The Charge: Procedural Aspects and Preservation of Error and Submission of DTPA and Insurance Code Violations Author/speaker 1995 and 1996 Advanced DTPA Insurance Consumer Law Course on Jury Selection from the Plaintiff's Perspective South Texas College of Law Author/speaker Adv. Civ. Trial Sem. on Texas Deceptive Trade Practices Act - What is Left - 1996 & 1997 Jury Selection Chapter 5 Table of Contents I. INTRODUCTION ........................................................... 1 II. TOP TEN LIST .............................................................. 1 NUMBER TEN: Never Say "What The Lawyers Say Is Not Evidence." ............... 1 NUMBER NINE: Surrender Control ............................................. 1 NUMBER EIGHT: "Thank You." ............................................... 1 NUMBER SEVEN: Use Jurors for Community Values .............................. 1 NUMBER SIX: Cheap Credibility ............................................... 2 NUMBER FIVE: Enable the Juror to Respond and Still Be a "Good Guy" ............. 2 NUMBER FOUR: Get Your Warts Out .......................................... 2 NUMBER THREE: Theme and Story ............................................ 2 NUMBER TWO: Learn to Say Goodby ........................................... 3 NUMBER ONE: No Legalese ................................................... 3 III. USE OF THE MCDONALDS - HOT COFFEE CASE FOR TORT REFORM VOIR DIRE - AN EXAMPLE ................................. 3 IV. STATE OF THE ART QUESTIONING TECHNIQUES .......................... 3 A. The Attitude Survey Question ................................................ 3 B. "How Do You Feel Question" ................................................ 4 C. The Model ................................................................ 5 D. What Else Do You Want To Know? ........................................... 5 E. Use The Panel as Witnesses .................................................. 5 F. How To Develop a Strike for Cause ........................................... 5 V. THE ENTHYMEME .......................................................... 7 A. Definition ................................................................. 7 B. Example .................................................................. 7 C. Deceptive Trade Practices Act Major Premises .................................. 8 D. Implications for Voir Dire ................................................... 9 E. Needs and Attitudes ........................................................ 9 Jury Selection Chapter 5 VI. PRINCIPLES OF COMMUNICATION AND PERSUASION ..................... 9 A. Communication Model ...................................................... 9 B. Persuasion ............................................................... 10 C. Five Phases of Persuasion ................................................... 10 D. Communication Styles ..................................................... 10 VII. THE ART AND SCIENCE OF JURY SELECTION ............................. 11 A. Scope and Overview ....................................................... 11 B. Non-verbal Cues .......................................................... 13 C. Stereotypes ............................................................... 15 ACKNOWLEDGMENT The bulk of this paper is taken, with permission, from a presentation given many times by Mark Perlmutter of Austin. Many thanks to him. The Top Ten List is mine. Jury Selection Chapter 5 I. INTRODUCTION Lawyers know to use leading questions to In order to prevail at trial, lawyers must select maintain control of witnesses. The opposite is the jurors who accept the underlying values embodied in desire in voir dire. You must surrender control to the applicable cause of action or defensive theory. the potential jurors in order to encourage the This paper discusses the theory and tactics of the exchange of information you desire. twin aims of voir dire: Use case specific, open ended questions to surrender control of the information process to the a. identification and elimination of potentially jury. unfavorable jurors; and b. persuasion of those jurors who will ultimately decide the case. NUMBER EIGHT: “Thank You” II. THOMPSON’S TOP TEN LIST Never argue with a juror. When a juror guts you NUMBER TEN: Never Say with an answer, you may explore that juror's feelings "What The Lawyers Say Is more to see if you can develop a challenge for cause for bias against a party. Once the exploration has Not Evidence." been done, your only response should be "Thank You!" Resist the temptation to ignore or avoid the juror Let the jurors believe what you say should be who is obviously upset with you or the system. You taken seriously. This is not to say you should tell must deal with this juror. You may do so directly by them what you say is evidence. However, you gain asking: "Have I done or said anything that angered nothing from telling them what you say is not or upset you? evidence. When your opponent reminds the jury that what you have said is not evidence, she may appear to be NUMBER SEVEN: defensive and will create additional emphasis on what you have just said. Use Jurors for Community Values NUMBER NINE: Remove Barriers and If a potential juror gives a response favorable to your case, use that juror's response as a community Surrender Control value. Ask, "Does anyone agree with Ms. Jones? Tell us why you agree with Ms. Jones. How do you feel about what Ms. Jones has said." The values Many aspects of trials contribute to creation of that come from the jury panel seem more barriers between the lawyer and the jury panel. All trustworthy than values which you try to plant in the reasonable efforts should be used to eliminate the panel. Potential jurors may be reluctant to agree or barriers. disagree with you since you are the authority figure. The podium is a definite barrier. You will elicit They will more readily agree or disagree with other fewer responses from your "authoritarian" position "mere mortals" on the jury panel. behind the podium than from any other position in the Do not avoid the unfavorable response. You courtroom. need to know who agrees with that unfavorable Your dress may create a barrier. The more response. Once you have identified and spoken with casual your dress during voir dire, the more each of those unfavorable responders, you may then responses you will receive. Save your "power ask if anyone disagrees with Mr. Smith. Follow up dressing" for later in the trial. with those jurors who disagree as to why Mr. Smith 1 Jury Selection Chapter 5 is dead wrong. If the other jurors call him an idiot, it will be OK. If you call him an idiot, you will NUMBER FOUR: offend even those jurors who agree with you that he Get Your Warts Out is an idiot. No cases go to trial without significant matters about the plaintiff's case which the trial lawyer NUMBER SIX: wishes would go away. I refer to those matters as Cheap Credibility the "warts" of the case. It is critical that the jury hear each of the warts of your case from you. Don't let the defense lawyer Potential jurors come to court scared, angry, say there are a few things the plaintiff's lawyer bored or some combination of these feelings. Most forgot to tell you. of this discomfort simply comes from unfamiliarity Some warts only appear to be warts. With with the rules of the game and the uncertainty of adequate explanation, the apparent warts aren't bad whether or not their individual comfort