Jury Selection… from a lawyer’s POV

this is a real courtroom and this is a real jury pool we are trying to find out biases if you've ever gotten a jury summons in the mail you just might recognize this 11 million individuals report for jury service every year in America with some never having seen the inside of a courtroom before let me give you the lawyer perspective on jury selection cuz I talk about a lot from the jury point of view cuz that's who you guys are but let me give it to you from my perspective while y'all are down in the first floor watching a video or hearing from a court staff member and they're telling you jury selection is really important it's the Hallmark and Foundation to our Civil Justice System we need jurors who are going to be open here's how it's going to work while they're explain that to you we get a sheet of who you are I have very very basic information about you what is your name what do you do what is your spouse to what city you live in have you ever been on a jury before that's basically all I know about you we get that list the truth is we get it usually while you're walking into the courtroom and sometimes we get it after you're already in there you come in the courtroom and we are now on stage as I get that sheet I take out a big piece of paper or I just use a manila folder and open it up really fancy I am drawing a box for each person in whatever order you're going to be sitting in and I'm drawing that out I am then trying to memorize your name that's one of the skills I don't know weird skills that I have you know some people can like burp the alphabet I'm good with names because I want to have a conversation with the jurors it's genuine like I feel like you should be respected and you should be called by you know Mr Smith as opposed to ma jur 177 but it also helps to build a connection the other members of my team they may say this person a nurse okay that's my nurse all right this person is a teacher oh that's my teacher so we kind of divide it up I'm focused on the presentation and asking the questions the other members of my team are focused on getting as much information as we possibly can now I like paper paper is my preferred method it's a choice we are a paperless office except when it comes to jury selection I don't know why that's my like old Relic so when you first walk in you'll see me my client and another lawyer from my firm and I say hi my name's Mike rafy half my family says rafy the other half says rafy I'm sorry you have to be here this stinks it's Monday morning but my goal at the end of this is that you think it doesn't stink you think that this was a meaningful opportunity that you had because my client over here has been waiting 3 years for their day in court and this is the most exciting day of their year this is their day I want to get you through this as quickly as possible but I want you know how important this is I usually tell the jurors that it's unfair that I'm asking them questions but I know this is to some degree unfair because I'm a stranger and I'm going ask you questions I say I'm going to ask you questions because I need to get to know your opinions your beliefs and your biases bias is the word that lawyers and judges and the law uses we are trying to find out biases all biases mean in this context are your personal experiences and how they may affect this case we all have biases I am biased that I think Coca-Cola is the best I live in Atlanta of course I'm biased to that at the same time though I'm biased to think that the New York Jets might one day win a Super Bowl probably not going to happen but based on where I grew up that's what I think so we all have these biases it's unfair for a stranger like me to come into a room at 9:30 in the morning and say let me ask you some personal questions about your biases but the reason I'm doing that is because client so and so over here needs to know this information and we need to know it on his behalf so we can make a good decision about whether you're the right fit for this jury now we don't pick our jurors we choose the jurors that aren't a good fit and we excuse them when I'm thinking about jury selection what questions I'm going to ask I make a list of all of the bad things in my case let's I have a case that's a truck crash you were driving down the road and you were hit by an 18-wheeler your rear ended at night and the worst thing for you is that your right brake light was out that night at least that's what the defense says is the issue we say no it was hit by the truck and that's why it wasn't working but that is one of the biggest issues in the case I say ladies and gentlemen there's a really important issue in this case about a brake light there's a rear end crash the defense says that the tail light was out we say it wasn't you're going to have to figure that out how are you going to figure that out that's my question how and they look at you like you're crazy so you have to be prepared to give them some answers would do you want to see maintenance records of the vehicle oh yeah okay somebody raised their hand and then I say to juror number seven who was nice enough to raise his hand sir why do you think that's important and he says oh you know because maybe the car just been in maintenance they knew it wasn't fixed said those are really good points appreciate you sharing that does anyone else have another idea oh I'd want to see pictures after the crash that's a very good idea why would you want to see the pictures of the crash well you know maybe it shows the break like on maybe it shows it was off anyone else have any ideas how about talking to Witnesses anybody want to talk oh yeah but that's how I'm starting with my absolute worst fact I want to do that for two reasons one in terms of time that's my most important thing so I want to ask about it because some judges limit how much time you have so I don't want to put that as my fourth topic we all get bogged down on topic number two and I've got to rush through three or not go to three at all if it's the most important thing I'm leading with it now you're probably thinking to yourself why would you lead with such a bad thing cuz it lowers expectations how low can you go can you go down low during opening statement for example I tell the jury in every case these are the best lawyers I'm pointing out the defense lawyers these are the best lawyers money can buy I look up to those defense lawyers they're phenomenal they're great I said that in my last trial and you know it wasn't totally untrue I respected the other lawyers they are much older than me I looked up to them what it does is it builds up the expectations on their side so then when push comes to shove and the defense has to show their cards show their evidence the jury's really let down when the only evidence they have is the testimony of the truck driver who rended my client who says oh yeah I think the brake light was off but we have a picture of it lit up and we have the police officer says yeah I saw it on you know and I have just destroyed the high expectations that the jurors have that I kind of gave them for the defense and that starts in jury selection so does conditioning the jurors or introducing the jurors to the idea that you're going to ask for a significant amount of money the worst reaction you can get as a lawyer during closing argument is when you say to the jury I'd like you to w x doll and they go and they look at each other like do you believe this guy so how do you try to prevent that well you have to make the jury comfortable with the the number you're going to ask I don't tell the jury in jury selection cuz it would be inappropriate exactly how much money we're going to award if I know I'm going to ask for $5 million I'm going to say to the jury if the evidence supported it would any of you not be able to award $5 million does anyone think that pain and suffering verdicts are sometimes too high the ones I hear about in the news and you'll have jurors who will raise their hand and say look I'm sorry but there's no way in hell I'm ever awarding anyone $5 million and then you're able to identify those are people that in terms of Damages probably can't be on the jury because you're going to challenge them with the judge and say judge even if the evidence supported they can't follow the law and award that money a lot of lawyers are afraid to say things that aren't helpful in their case during jury selection or at least topics that are difficult for them to overcome does anyone here think that the burden in a civil case should be that higher burden the plff should have to prove Beyond a reasonable doubt that he was hurt with the strategy that I use where I'm asking the jury what do you think what would you want to know what would you want to see it's a mini focus group my goal is that if I say to the jurors what evidence would you want to know and they say I want to know these seven things well then I know what seven things I need to present to the jury but the rub is with lawyers we might not have all seven things somebody might say I wish there was pictures right after the crash before the cars have been moved and you have to listen to that in jury selection and say that's a really good idea I appreciate you sharing that and you have to know you don't have that and you have to be okay with that and you have to plan for that so I know during the testimony of the police officer I have to say hey officer I know that most people take photos after a crash did anybody at this scene take photos of the crash that you know of and he'll go no I'll say to the defendant did you take any photos no say to my client did you take any photos no and then in closing argument if that juror's on there the one who said they want to see photos I'm going to look right at that person and I'm going to say I know some of us really wish there were photos because they wanted to see them after the crash but if you remember what the officer the defendant and my client said there are no photos if they existed you would have them and then you turn to the next person and go through their evidence so it's a mini focus group but a lot of lawyers get worried about well they're going to say they want to see photos yeah of course they are but even if they don't say it they're going to think it so you need to know what they're thinking so that way you can address it all right so you get done with all your questions of the jury then it's the defenses term so they stand up they usually give some sort of opening like I'm not going to keep you as long as the planet lawyer did so my question is going to be really short I'm going to get right to the point yeah that's because I was the first one to go if you went first you would have taken all that time all right good morning and I promise shorter it's a little lawyer jab their questions typically jump around more so they'll say hey juror number nine you said this I want to fou up with that specific thing so after the defense gets done the jury's typically excused out of the courtroom I step out the lawyers then have a conversation with the judge about any jurors that aren't a right fit are they any stries or cause we say to the judge jurors 1 19 1341 we think should be struck for cause they have reasons they shouldn't be on the jury and those reasons shouldn't count against us they're just they're not fair and impartial jurors I'm comfortable with striking for cuse what judges are worried about during this process is reversible error reverse reverse CH now y'all and what reversible error would be in this situation is that the jury isn't fair so the judge allows an unfair juror someone who is not unbiased allows them on the jury if that happens then the judge can later be overturned and there'd have to be a whole new trial is it a mistake if the judge says hey you know what you can't be on the jury because you're not right for this case but they actually are they're totally fine that is a mistake but it's not reversible error because when you exclude a fair jur you're still left with a fair jury it's only reversible error if you have an unfair juror on the jury and that's what the lawyers are playing to we're saying judge you got to get rid of Juror number nine they're fair and impartial and the judge says I don't know it's right on the line you say judge is not an error to kick them off you don't want to leave them on because if they're not we might be back here in a year take it back now doing this trial again the judge goes all right I hear you that's what you're kind of pitching to the lawyers typically are excused for something like 5 to 15 minutes and we go back in a room hopefully depending on the courthouse sometimes we find a corner and we just sit there and we all talk about the jurors so when I'm doing jury selection I'm ultimately responsible for picking the jurors that we're going to strike and we get six strikes so when I'm arguing to the judge about which jurors should be excluded from the jury I'm expecting my team to get together and try to make a cohesive plan about what they think and I'm not expecting them all to agree but I want them all to come up with their lists who they like who they don't more importantly who they don't like and talk about it with each other you know the reason we try to sit different people in different places is because Alexis sitting in the corner may see jur number nine smirk roll his eyes when you bring up pain and suffering may see juror number 42 texting the whole time and not caring and a juror who doesn't care fine with me they're not going to skew one way or another they're just there so I don't have to worry about them everybody ask me the secret of getting off the jury duty secret is that the people who don't answer jury selection questions end up magically finding their way to the jury so once we get our list of who we don't like then we have to order it the reason that we have to decide on an order is because the way the strikes work is it goes plain if defendant plff defendant plain if defendant for six times so we want to put people that the defense May strike two cuz they might want to strike one of the same jurors we want to put that way on the bottom of our order so that way hopefully they strike them and then we essentially get another challenge after we've decided on our plan we then go back in the courtroom jury files back in and jury just sits there it's kind of an awkward process I I've never understood why this happens in front of the jury the clerk will bring over a piece of paper with a list of all the jurs and if our first strike is going to be number nine I flip to number nine and I write plaintiff's one plaintiff's First Strike then I hand it back and then they walk it over to the defense and they go huh plain if's nine PL if's 9 plain if's 9 they write down plain if struck number nine and then they put D6 and then it comes back to me and I go D6 then I look and I said remember we were going to strike six I'm glad we put six last on our list cuz they just struck six great who's our seventh worst juror who's after six so you go back and forth for six times and then the judge looks at it the judge says to you I'm going to call your number if your number is called you're going to go get in the jury box 1 2 3 4 five seven six got skipped when a jury gets passed over you see them go and then you see the Walk of sadness over the jury box typically jury selection takes 2 to 3 hours I've had jury selection that has taken more than one day though in federal court I've had jury selection that's taken 40 minutes total because that's all you're allowed different states have different rules different courts have different rules for the most part as long as the judge feels that you are asking questions that seem to be meaningful and purposeful judges are going to give you leeway to continue so after the 12 13 jurors are impanel are put in the jury box and now become the jury you are given some very basic instructions don't talk to anyone about the case including each other don't deliberate before you're supposed to Del do not do that the judge will typically say the lawyers probably aren't going to speak to you outside of this room don't feel awkward if you get into an elevator you say hi cuz you're a nice person and the lawyers just go and look down that's normal usually in terms of timing either you're going to be excused for a break or judge is going to say okay are we ready with opening statements and then you start meanwhile all the other jurors have gone home or sometimes depending on how fast that jury selection went a judge May conclude that you didn't do one day of service that's the requirement One Day of Service until you go back down to wherever the meeting place was at the beginning they may put you in another courtroom that's jury selection I'm out of here y'all peace I did not plan on doing this video I just started talking about it