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This is an article I wrote as content for a lawyer's website that is based out of Las Vegas. The task was to take the information from a video transcript and turn it into an article.
Any trial lawyer will tell you that no matter how good you are as an attorney your case can live, breathe, and die depending on your jury. One wrong move in the game of selecting your jurors can completely determine the outcome and victor of that match. With so much money and people’s lives at stake you can not afford to make a wrong move. One bad juror can make you lose an unlosable case. Speaking of the unlosable case, this is how Mr. Robert Eglet became such an expert at the voir dire process. He has a video, Inside the Mind of a Jury Analyst that he live-streamed on YouTube November 25, 2014, where he talks about that case. Here we will be discussing and referring to information that was presented in that video along with a past article that we shared in August 2020 titled, Best Voir Dire Questions.
How did Mr. Eglet become such an expert in the field of voir dire? By losing the unlosable case.
The following is a brief recap of that unlosable case that proves that one bad apple can spoil the bunch. It only took one person to convince all the other panel members to change their opinion and rule in the favor of the defendant. The most important part of a jury trial is jury selection. If you don’t have a group of people who are at least open-minded to your side then you have lost the case even before your opening statement.
The case was a medical malpractice case almost 20 years ago in Las Vegas, Nevada. It was a case where an anesthesiologist was dabbling in pain management though he wasn't trained properly as a pain management doctor. He attempted an epidural block, however the procedure was done improperly. As he was trying to get into the epidural space he accidentally punctured the patient’s spine. Mr. Eglet had an MRI of her spine that was taken days before the procedure that showed that other than some age-related changes and some stenosis of her cervical spine there was nothing wrong with her spinal cord. The MRI that was taken within days after the procedure showed a black “dead” spot in her spinal cord where he had “stabbed” her. Mr. Eglet was able to get the defendant to admit, on the stand, that the way he did the procedure fell below the standard of care. The defense expert from California agreed. Everyone, even the defense lawyer, thought that the jury would be in favor of the plaintiff since the client was now a quadriplegic and yet, the jury returned with the defense verdict.
So what was is about that juror that contaminated the entire jury panel? She was an early 20- something medical assistant. She was incidentally appointed foreperson. Note, this was the time in Nevada when all the uproar was going on about medical malpractice reform and that there needed to be changes regarding medical malpractice. She took the jury back to the deliberation room and somehow convinced them that these were age-related changes they were seeing on the MRIs, and it had nothing to do with the doctor.
Mr. Eglet said, “I made a critical mistake in this case. I left a juror on that jury, a juror panel member on that jury that I shouldn't have left on because I didn't do the job I could have or should have done if I had the knowledge I now have in jury selection to discover the things that would have allowed me to get her off that jury.”
For a brief time after this defeat, Mr. Eglet took a break from practicing law but because of that case he devoted over a decade to studying and mastering the voir dire process. He would later be named National Lawyer of the Year in 2014 and the National Law Journal named his firm one of the top 50 trial firms in the country.
The process of jury selection is not as easy as one may think. It’s not just a science but an art. There are so many dimensions and factors to take into consideration as well as tools that you need to have in your cabinet to construct the panel that in the end will benefit you as opposed to your opponent. In recent years advances in technology have greatly increased the ease of the process but some old tried and true practices won’t fail you.
Here are some of the most important Dos and Don'ts:
Dos
Recognize and remove the most obvious jurors for bias or prejudice that cannot serve as fair and impartial jurors. At every stage emphasize that you are looking for fair and impartial jurors and learn the proper questions to ask to weed out the potential ones that can not be.
Use technology and social media to know your potential jurors better. Use anything you can. It could be surveys, questionnaires, focus groups and mock trials.
Let them do most of the talking. Use the 80/20 rule. They speak 80% of the time while you listen. If you’re talking, you’re not listening.
Educate them. Because of television shows people might have the wrong idea of how the trial process works and the standards in which they need to follow.
Maintain eye contact at all times with your jurors when you are speaking with them.
Make them feel that they are the most important person in the room.
Try to put them at ease and make them comfortable so that they feel free to speak. Explain to them that there is no right or wrong answer.
Always use their name when asking questions.
You will always want to have some follow-up questions like: Why do you feel that way? What makes you think that? Why do you feel that? Tell me more about that.
Always thank them.
Be authentic, be yourself.
Pay attention to group dynamics. A good leader outweighs three bad followers.
Encourage disagreement within the panel to see how they interact with each other. That is going to give you a lot of information.
Try to make a good first impression.
Create your “Playbook”. Make your voir dire outlines and practice, practice, practice.
Dont’s
Don’t try to make subtle arguments to the jury about your case during voir dire.
Be careful of your own body language. Don’t pace, fold your arms or roll your eyes.
Don’t stand to close or invade their personal space.
“Smile and be nice throughout the process but no ass-kissing.”
No inappropriate humor/jokes or self-deprecation.
Never cut off a panel member when they’re talking.
Don’t cross-examin or disagree with a panel member.
Never repeat the same question that's in a jury questionnaire or one that the judge has already asked.
Don’t let yourself be distracted. Pay very close attention to body language and how the potential jurors interact with each other as well as what they discuss amongst themselves.
There should be no advocacy during voir dire. Save the arguing and presenting your point for the trial.
Don’t try to imitate or emulate someone else. You aren’t auditioning for an Academy Award.
“By employing the best voir dire questions, you reward yourself and your client with the most advantageous jury possible. The more advantageous the jury is, the better your chances of winning larger awards will be. That’s why jury selection is so critical and why many highly respected trial attorneys swear their cases are won or lost in the voir dire stage.” Rory Delaney