Mark Bennett’s “Nike Rule” for jury selection (and 15 others) [updated 8/24/09]

When Mark Bennett announced a week or so ago that he had 16 simple rules for jury selection, the first of which began with “The Nike Rule,” I anxiously awaited the specifics which were to arrive subsequently.  Well, he did post the details on “The Nike Rule,” which essentially is this:

You have to “just do it,” rather than planning out your questions or taking an overly logistical or tactical approach to it.

Don’t worry, don’t think about it, don’t plan your next question. Forget your script, forget the prosecutor, forget the judge, and talk with the people. The time for worrying and thinking and planning, for scripts and prosecutors and judges, is past. There is nothing more that you can do to be prepared for this moment.

I have found that I perform best in a criminal jury trial when I do this throughout the trial.  Rather than be overly logistical, I like to listen, and then when it is my turn to question a witness, or to give a closing argument, I just get up and let the words flow.  I think it is the most sincere and passionate way to advocate.  And sincerity and passion breeds results – at least in my opinion.  But of course, you can only do this when you are intimately knowledgeable about the facts of the case.

Certainly I agree that this approach is the best way to conduct the voir dire process.  When trying a jury trial, credibility is king, and if from the beginning you have to get the jurors to, not necessarily like you, but to respect what you say.  You have to build and maintain your credibility with them.  The best way to do that is to start the trial off by talking to them for just about as long as the judge will let you, and educating them about the process and the ultimate importance of their immediate responsibilities.  And if you can make them laugh a couple of times it doesn’t hurt.  This is especially effective in those situations where the prosecutor stands up and says, “no questions, judge,” and let’s the defense do all the talking, which for some reason I have encountered several times.  This has always baffled me.  Why wouldn’t you want to at least build a rapport with the jury?

Hopefully the outcome is that you get to know them better, and they get to know you.  Then you have something to go off of when it comes down to the choice between juror no. 5 and juror no. 9, which may seem arbitrary, but which also may mean the difference between liberty and imprisonment for your client.

I look forward to hearing what Mark’s second rule, “The Blind Date Rule,” is.

UPDATE: “The Blind Date Rule” has now been posted.

Essentially the advice is to treat jury selection like a blind date with 60 people (or unfortunately, in West Virginia, more like 38 to 40 people).  Bennett explains his thinking:

Someone, thinking they might be a match, has put two parties in a room together. One party—the lawyer—has some desire to be there. The lawyer has some idea of a desired outcome (I know, I know: I’m a hopeless romantic). Neither party knows much about the other. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likable, and thus a suitable match as well.

It’s always extremely interesting to get advice from another criminal defense attorney who actually tries cases and wins – at least some of the time (no real criminal defense lawyer wins all the time).  There is a right way (or rather many different right ways) and a wrong way to try a criminal case.  Many would argue that jury selection is the most important part of the case.  It’s also the most unpredictable part, and the most likely part to absolutely blow up in your face.  But it works the other way as well, and you can really achieve a lot for your client.

It seems to me that the trick always is creating some sort of connection between yourself and the jury, and actually getting the point where you can have a conversation with them.  During most of the trial, the conversation is mostly indirect and one-way.  But during jury selection, you can have a two-way conversation, and it makes sense that it is just like any conversation you have outside the courtroom.

I like the way of looking at it like a blind date.  Not that I have ever been on a blind date, but I assume that you walk a fine line between cutting the tension and breeding contempt.  I also suppose that some lawyers, like many in the blind-dating world, no matter how hard they try, are just always going to be awful at this….  Again, I love it when people share advice on how they have won criminal jury trials in the past.

UPDATE – 8/24/09:

The Shrek rule for jury selection, now explained, makes sense.  Though it befuddles me to imagine how he thought of this, other than if it was on his mind as he was watching Shrek…  I think that one of the by-products of being a trial lawyer, is that your mind never stops analyzing issues related to pending cases – for better or worse – usually worse.  I know that I would pay any amount of money for a switch that turned off lawyer-related thoughts from passing through my brain the moment I stepped out of my office for the day  But it will never happen.  Nevertheless, the gist of the rule comes from this scene in Shrek:

[They are walking through the forest and Shrek belches….]




What?  It’s a compliment.  Better out than in, I always say. (laughs)


Well, It’s now way to behave in front of a princess.

[Then, Fiona belches.]

Bennett notes that:

The Shrek Rule dictates that the lawyer should, rather than trying to shut up (or, God forbid, not listen to) the people who have views that would be unhelpful in jurors, draw those people out and encourage them to share and expand upon their views.

How? Listen attentively (and actively, Dr. SunWolf), thank them, and ask how many others agree. The more people agree with him, the better: better out than in.

It’s always an odd moment in jury selection when one prospective juror says, “yeah I know the defendant, and he’s a no good piece of garbage like the rest of his family, and I fear for my children unless he’s locked away for good.”  You could probably write a book on the proper reaction to that happening.  But better during voir dire than in the jury room.  I have experienced a case where almost that exact phrase was said for the first time during jury deliberations, and only after the verdict did the defense lawyers find out about it.  Of course, when this particular juror was asked by the judge whether he knew the defendant, he never spoke up.  But that is another issue itself.  At least when you get that out of him during jury selection, you have the opportunity to (1) get the guy excused for cause; and (2) rehabilitate your client by exposing the source of the guy’s animosity as incredible and irrelevant.  And, as a bonus, you may get others to agree with him and get them off as well.

The 4th Rule is the 90/10 Rule, which basically means listen 90% of the time and talk only 10%.  This is probably the easiest rule to remember, yet the most difficult to accomplish.  In my experience, it can get surprisingly difficult to get people talking – especially when things turn personal.

Bennett has now also posted his 5th Rule, the MacCarthy Rule, named after a Chicago public defender who said “talk in a courtroom like you would talk in a bar room.”  In short, don’t use “lawyerly” words and don’t condescend to the jury panel.  Or else, they get to burn you in the end.  This seems to be a corollary to the “be a nice person” rule, which I would add to the list.  We all know people who are nice people, and we all know jerks – whether they realize we know or not.  I believe that being a sincerely nice and friendly person will help the jurors like and trust you, while, like the rest of us, they will see through a facade of friendliness put before them by a world class jerk.  And we usually like to help those we like, and we generally don’t mind sticking it to those we think are jerks.

– John H. Bryan, West Virginia Attorney.

1 thought on “Mark Bennett’s “Nike Rule” for jury selection (and 15 others) [updated 8/24/09]

  1. Pingback: Bennett’s jury selection rules (cont’d) « West Virginia Criminal Law Blog

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