THIS WEEK'S QUESTION:
What are some effective strategies for voir dire?  How can I get jurors to uphold the law and avoid the temptation to legislate from the box?

- Stephen Webster

ELLIOTT ANSWERS:
Stephen, your question resonates with me because of some mistakes I made early in my career when I selected jurors.  Here are the mistakes I made, and how you can correct them in your trials.

Mistake #1.  Thinking I could get them to change their minds.   When I started this profession, I was only 25 years old.   I thought I knew everything.  I was wrong.

One of the things I thought was that I could get people to change their minds.  For example, I was trying a D.U.I. case and asking a juror his views on D.U.I.  He said, "Unless there's a crash or somebody gets hurt, the police should just make sure he gets home safely."  When he started driving, that was exactly what the police did.  He had been around long enough to see the shift from lax enforcement to aggressive enforcement of the D.U.I. laws.  Back then, the phrase "Have one for the road" meant exactly that. 

We talked back and forth for an extended period of time about the change in D.U.I. laws, and I tried to convince him that the laws were important and needed to be enforced.  By the end of the conversation, he said that D.U.I. laws were important, and that he would follow the law.  I had won.  I had proven to him that the laws should be enforced, even if there wasn't a crash.

But, as Dale Carnegie said, "A man convinced against his will is of the same opinion still." 

When it came time for deliberations, they voted Not Guilty.  I didn't understand why.  The law was clearly on my side.  Why hadn't he upheld the law?  Well... he probably did uphold the law.  But when determining the facts, he viewed them through his worldview.  In his worldview, police shouldn't arrest drunk drivers unless there's a crash.  Starting from that viewpoint, he probably began looking for reasons why this defendant was not drunk.  Any doubts raised by the defense were magnified through his worldview.  By the time the trial was concluded, he applied the proper law, but saw the facts differently than I saw them. 

To avoid the problem, make sure you understand your jurors' worldviews.  Chances are, the jurors are upholding the law - they're just going out of their way to make the facts conform to their worldviews.

(For more comments on worldviews and how they affect perceptions, read Seth Godin's All Marketers are Liars.  For a review and some trial advocacy lessons gleaned from the book, visit www.TrialTheater.com/articles/liars.htm).

Mistake #2.  Asking them "politically correct" questions.  Another mistake I made was asking questions that demanded socially acceptable answers.  When I asked the jurors questions about their ability to follow the law, I really didn't know if they would or not.  For example, I would ask questions like this: "Even though you may disagree with the law, if the judge instructs you that you must follow it, will you be able to follow the law?" 

What a stupid question.

Of course he responded with the obligatory, "Yes."  But did I really learn anything about him?  Did I learn whether or not he would properly follow the law?  Not really - I only learned that he could be pressured into giving a socially acceptable answer.  If you really want to get the jurors to uphold the law, you should ask what concerns or reservations they have about applying the law.  Get him to open up and discuss his views and his feelings.    The more you learn about your jurors before you select them, the less concerned you'll be about whether or not they'll uphold the law.

(For some tips and techniques on getting jurors to talk, check out www.TrialTheater.com/jurors.htm).

Mistake #3.  Not teaching them about the law during closing argument.  During closing argument, you have a unique opportunity to teach the jurors about the law.  This is the only time in the trial where you can show the jurors how the law applies to the facts.  Many times, the reason they don't uphold the law is not because of willful disregard for the law.  Often, it's because they don't understand how the law should be applied.  The judge may read them the jury instructions, but it's the lawyers' job to show how those laws apply to the facts of the case. 

Unfortunately, I often squandered the opportunity.  In my closings, I would rehash the facts of the case, but not spend much time on the law.  Learn from my mistake.  Use the jury instructions as your guide for preparing your closing argument.  Make sure you discuss how the law should apply to the facts of your case. 

Unfortunately, by the time you reach closing argument, if you have concerns about their ability to follow the law, you're probably in trouble.  The best you can usually do is try to "guilt 'em" into following the law.  You risk sounding like like a mother saying, "You never write... you never call..."  Sometimes it works, and sometimes it just drives you nuts.  Nonetheless, you want to ensure that they understand how the law applies to the facts.  If they refuse to uphold the law in the jury room, let it be because they refused to uphold it (a rare occurrence), and not because they were confused about how it should be applied.