by Elliott Wilcox
In jury selection, one of the things a trial lawyer fears most is the “outspoken juror.” Your entire body can seize up when one of these outspoken jurors starts talking during jury selection, telling you how they hate your case, hate your client, and hate you, the trial lawyer. But an outspoken juror, even one who hates your case, can actually be your best friend during jury selection. Learn how to get the most from outspoken jurors during voir dire with these simple jury selection tips.
Have you ever had juror responses like these?
Ouch! Not exactly the answer you were hoping for, was it?
Sometimes answers like these are a juror’s honest feelings about your case. Others times, the responses are calculated to get them kicked out of jury duty. Regardless of the reason why they’re saying it, one thing is certain:
You want this potential juror GONE.
You do NOT want them sitting in judgment of your client. They hate you, your client, or your case, and you don’t want them on your jury. In fact, once they give you two or three of those “Get me the hell out of here” statements, you may start feeling like they’re going out of their way to poison your entire jury panel. At this point, you certainly don’t want to hear anything else they say, because you know that you’re going to kick them off the panel. It may be for cause, or you may need to use a peremptory strike, but either way, they are outta here. Since you’re definitely going to get rid of them, you probably shouldn’t ask them any more questions, right?
Well… Maybe not.
Wait a moment before you summarily dismiss them. That awful juror who you KNOW you’re going to excuse or that your opponent is going to excuse… they’re still valuable.
Here’s an example. In one trial that I watched, a potential juror in the front row was going out of her way to get excused. She did NOT want to be there. Her bias was so obvious to all of the lawyers that when she started responding to a question the lawyer had posed to the entire panel, he actually interjected and said, “Don’t worry, ma’am, you’re going to be excused.” (Translation: “The plaintiff doesn’t want you here, the defense doesn’t want you here, even your fellow jurors probably don’t want you here.”)
But then, he let her answer the question.
Sure enough, her answer wasn’t very favorable. She started talking about how she was upset that money was used as the root of all solutions to jury trials… She was offended that everyone came into the courtroom with their hand out, looking to recoup money… This was similar to a premises liability case, so the actual perpetrator wasn’t on trial, so she was offended that he wasn’t there, that only the civil defendant was on trial because they had deep pockets…
No question about it, she had strong opinions, and she felt that everyone in the room was entitled to them. (Later, I heard a fellow courtroom observer comment, “What a miserable human being!”)
Let me ask you a question. When a juror like that steps up on their soapbox, what should you do? Your mom probably taught you that you should look at whoever is talking to you. Good manners indicates that if you ask this juror a question, you should look at her while she responds, right?
Nope. Looking at her while she answers would be a lousy idea. She’s gone. She’s going to be kicked out for cause. She is definitely going to be excused.
So don’t waste your time listening to her. Instead, watch what the other jurors are doing. You already know what this person thinks. This is your opportunity to learn what the rest of the panel thinks. Look for body language clues that can tell you who agrees (or disagrees) with her. Who is nodding (no matter how slightly) in agreement? Who crosses their arms? Who leans forward? Who leans back? Who turns their head toward her to pay closer attention? Who turns away in rejection?
Just because you hate a potential juror, it doesn’t mean you shouldn’t ask him any questions. There’s almost nothing a potential juror can say that will actually poison the panel. Just because a juror shares his or her deeply held views, that doesn’t mean he’s going to evangelically “convert” everyone else to his point of view. Your goal is to find out who else shares that viewpoint, but isn’t as outspoken. Don’t hate these negative jurors. Love ‘em instead, because they’re giving you valuable insights into the rest of your panel.