I never quite finished going through Mark Bennett‘s jury selection rules, so I feel it is necessary to include the rest he subsequently posted, all of which can be found here.
We left off at Improv Rule I, which refers to improvisational theater. The rule is, “no scripts.” If you follow your outline of questions, you are going to get outlined answers. Voir dire should have the flow of a conversation – a real one.
And then there is Improv Rule II, which also derives it’s name from improvisational theater. He’s says that the rule is to “not block,” which means that if your partner at the improv, i.e., a prospective juror, brings up a topic to discuss, don’t ignore that topic or switch to another which is more comfortable for you. This is how a conversation, and also voir dire, should work.
Rule 8 is the Shrink Rule. Rather than just confirming by silence that the prospective jurors agree with the points of view, legalities, or issues as you/the court see them, ask the jurors openly, how they feel about any particular issue or idea, and let them answer.
Rule 9 is the Beer Pong Rule. “The ball is always in play. If the ball hits the floor, ceiling, wall or even leaves the room it can still be, and should be, hit back in the direction of the table.” Comments, issues and questions, should be forwarded from one prospective juror to another, i.e., “who disagrees with Mr. Jones.
Rule 10 is the Marathon Rule: save something for the end. This is something that should be utilized also in cross examinations. In cross examinations, you always want to have one final question – one completely unobjectionable (you never want to end a cross by sitting down on a sustained objection), hard-hitting, no-way-out, glance-at-the-jury -as-you-are-sitting-down-triumphantly-question. That way, no matter how the cross examination goes, you end on a high note, and it is never awkward. The cross may have been a disaster, but if you end with your ace-in-the-hole question, you leave off on a high-note. It’s a great idea to also have one of those for voir dire. Bennett suggests something like, “raise your hand if you promise to give [client] a fair shake,” or “can we all agree to wait till all the evidence is in before deciding this case?”
Rule 11 is the Playing Doctor Rule: I’ll show you mine if you show me yours. If you want the jury to discuss something deep, such as prejudices (which he rightly states that we all have – including lawyers and jurors) we have to be willing to discuss our own, such as our first thoughts when we saw our client’s tattoos – or something of that nature.
Rule 12 is the Field Trip Rule. This is about paying attention to the group dynamics that develop between these strangers who are forced together, such as on a field trip. And also it is about becoming a part of the group, and allowing these dynamics to steer the conversation of voir dire.
Rule 13 is the Undertow Rule. It’s not possible for one person to keep up with all of the prospective jurors, whether there are 30 of them or 60 of them. You have to have an assistant, or another lawyer, to help you keep track of what is going on. It literally is impossible to do this yourself, and is foolish. Of course, as Bennett notes, your client can help you, and indeed should have a say in the process, but that is questionable help given the circumstances. Once the process starts, it goes quickly in my experience. And it takes at least one person full-time to mark down names and particular answers which need to be followed up on during individual voir dire – if the jurisdiction allows. It also helps to know the exact layout in which jurors will be seated, in order to develop some type of diagram to aid your assistant, and yourself when it comes time to make the tough decisions. It can be different from judge to judge.
Rule 14 is the Atticus Finch Rule: be the lawyer they want to stand up for. This refers to the scene in To Kill a Mockingbird where the African Americans stand up for lawyer Atticus Finch as he walks out of the courtroom – not because he won, but because he was a good man. I have said this before. There are a lot of jerk lawyers out there. Jurors pick up on these things, and they naturally, I believe, will lean towards those who they respect. And they don’t respect the jerks.
Rule 15 is the Bat Rule: ping, then listen, or fail. I other words, ask questions and then listen to the answers. Obviously this is the foundation of being a trial lawyer. But it can be easy to rattle off questions without really listening to what is being said. It takes conscious effort at listening and absorbing the answers to lead the conversation, rather than just your questions.
And lastly, the Herd Rule. A jury pool is like a herd of animals. This can always be taken into account when asking questions. People don’t want to separate from the rest of the group. They are more likely to raise their hand or speak up if you ask “how many of you agree with [prospective juror] about [issue]?” and are less likely to respond to “do any of you believe [issue].” Always remember the Herd.
Thanks again to Mark Bennett for coming up with these great rules. He reminds me of the bar exam instructors, who teach things in terms of little stories and songs so that you can remember them during the test. It certainly is helpful to be able to quickly review these before voir dire.
– John H. Bryan, West Virginia Attorney.