Advice from a Trial Strategist: Jury Selection

Illustration by Hanna Barczyk

Part IV of our four-part series Advice from a Trial Strategist is about jury selection. We seek advice from trial consultant Denise De La Rue. If you don’t know Denise, it’s time you get to know who she is. Denise is an attorney, but she has exclusively worked as a trial consultant and strategist for almost thirty years. Denise has consulted on cases throughout the country. She has worked on some of our country’s most high-profile cases. She handles pre-trial research through facilitating focus groups and mock trials, and helps prepare witnesses from defendants in criminal cases, to clients in civil cases, to expert witnesses. She helps attorneys with trial strategy and participates with counsel in the jury selection process during trial. Our hope is that this series provides more comprehensive information about trial consultant tools and resources available to evaluate cases and during trial, aimed at helping us represent our clients more effectively. 

Jury selection is what most attorneys think of when they think of using a trial consultant. How important is using a jury consultant if you can? 

It is important to consider the parameters of your jury selection procedures to determine if you need to use a jury consultant or to what extent you need to use a jury consultant. I am always blown away by how many different procedures there are in the United States of America for selecting a jury. That’s true in state and federal courts. Some people think, “Oh we never get any jury selection in federal court. The judge asks all of the questions and it's over in 10 minutes.” Then you go into other federal courts and attorneys are asking questions and it's taking the better part of a day or maybe even a full day in a certain case. So, if in fact you're in a jurisdiction where the judge is doing all the work and you don't know much about the jury, and you don't have much opportunity to question them, then maybe it's not as important to have a jury consultant because what you're going to do with a consultant is very limited. But if in fact you're in a jurisdiction where attorneys get to participate more, or judges will ask meaningful questions and you're doing more than picking a jury based on what they do for a living, then I think it's probably important to consider asking a jury consultant to help you lay eyes on these individuals, evaluate them, and ask probing follow up questions—things that just aren't in the forefront of many trial attorneys’ minds when they're thinking about getting this jury in the box and how their opening is going to go.

Are there things that a jury consultant can help with even in a jurisdiction where the court conducts the voir dire? Such as preparation of jury questionnaires or presentation of questions for the judge to ask? 

Sure. If the jury consultant has been in practice 20 years and a trial lawyer has been in practice 20 years, chances are that the jury consultant is going to have picked more juries because they go from case to case quicker than trial lawyers can possibly do. If lawyers are willing to litigate the jury selection procedure to try to get additional questions, a questionnaire, some attorney-conducted voir dire, or attorney-conducted follow up, then a jury consultant can be helpful for crafting attorney questions or questionnaires and fleshing out issues about the procedure in general. In this respect, consultants can be helpful in litigating pre-trial procedures if that's something that the trial attorney is interested in. I'm working on a case now that involves allegations of child pornography, and we need to ask some questions that are uncomfortable for jurors to answer and uncomfortable for judges to ask. In this case, I'm hopeful that by drafting the questions that we really need answers to, in the way we need to ask them, the judge might see the wisdom in using a short one or two-page juror questionnaire only as to those sensitive issues, so that she doesn't have to pose those questions herself and ask the jurors to answer them publicly. This case is in a jurisdiction where I'm told, “The judge does all the work, and we never get anything extra.” By really showing what is necessary to conduct an effective voir dire, sometimes judges come around and see that in fact they do need to go outside the template in a particular case. So, yes, I think that a consultant, even in the most restricted conditions, can help lawyers think outside the box and push the envelope to try to get more and better information from potential jurors.

Let's talk about the cases where the lawyers do play an active role in questioning the jury venire? What do you think a consultant brings to the process? Can even the most seasoned trial lawyer have blind spots when conducting voir dire? 

Not unlike the things we've talked about in prior discussions, it is always helpful to work with somebody coming at it from a different perspective. I'll frequently get calls from lawyers who I've met at a CLE or have worked with before saying, “I'm about to try a rape case. Can you send me questions?” It's almost offensive to me to be approached this way because maybe there are some questions that we are going to ask in every rape case or bank robbery case or whatever it is, but we really need to know our theory of the case when we draft our questions. This should guide what kind of questions to ask. Somebody coming at it from that point of view can help draft questions for the lawyer's approval. I really prefer if I can take a stab at drafting the questions first and sending them to the lawyer rather than the other way around. I find a lot of lawyers are asking questions about legal principles, such as burden of proof and presumption of innocence, which in most cases is barely helpful. Bottom line: The different perspective can help with drafting questions or a questionnaire, even if it’s a short one. 

When in court, a consultant can observe and listen when the attorney is on her feet asking questions, because it's very hard to be in that moment and be listening and formulating any follow up questions while taking copious notes. So, having somebody there just to help evaluate the jurors and take notes on their answers is always helpful. Not only is it another set of eyes and ears, but it's someone with a specialized set of eyes and ears, who has done that a lot of times and been in those dynamics a lot of times, and is therefore looking at it all with that wealth of experience.

Another thing that I always do, and I'm sure most consultants do, is observe the interactions between the jurors who are likely to be left on the panel. There may be three people that we just can't stand, but because we don't have enough peremptory challenges and there aren't challenges for cause or we've lost them, we're only going to be able to strike two of them. So, I'm thinking about which one we can live with the most based on some of the other jurors that I'm pretty sure are going to make it onto the panel. Most lawyers just don't have the bandwidth at that point to be thinking like that even if it is their inclination. I think those are some of the key things that a consultant can bring to the table.

Reminds me of sewing together a quilt and trying to envision the squares in place rather than each square independently?  

That’s a perfect example. It's exactly what we're doing, and we typically know some people that we're gonna kick off and we know some people that the other side is gonna kick off and from there we can figure out who's in play. We can lay those squares down and examine if we need a solid color here or can we live with the paisley print? And sometimes our worst-case scenario is not hanging the jury, in fact that may be our best-case scenario so we may put some people on the jury that we think are going to be polarizing even if we don't love them. Obviously, your first inclination is to hope for your favorites, but sometimes somebody who's not our favorite may serve us better, depending on our case.

Describe your role and process in the courtroom. What does it look like when you are consulting with counsel in the courtroom during jury selection? 

By the time I am in the courtroom, we have already worked out the questions that the attorney is going to ask. If I am working for the defense, then we are listening through the judge asking questions, and then the prosecution asking questions. We would have made whatever chart we have time to make and we're all listening carefully to the judge’s and the government's questions and trying to note answers to those. So, then I would be there with an attorney knowing what questions he or she is going to ask the panel and ready with my shorthand to take notes as to what the jurors say. Depending on the process, sometimes you ask general questions first and then you go back and follow up on those. Other times, you ask questions and follow up once people raise their hands. A good bit of this depends on what the process is, but I'm there taking notes to the extent possible and handing the attorneys Post-It Notes with follow up questions if possible. I'm certainly saying we need to go back and ask this again or something like that if the attorney can confer with me before they pass the juror on.

And then ranking our jurors on whatever system we've agreed to, whether it's one to five, one to ten, one to seven, or whatever our system is. We've got a uniform agreement as to how we're going to rank them so that we can discuss them, even if it's only in the 15 minutes we have to decide our challenges, and then I'm there to advise. Certainly, sometimes I will advocate if I think we have a challenge for cause. I also give my opinion on peremptory challenges. You know, I'm mindful that I'm not the attorney. I'm the consultant. If my advice is not taken, my feelings are not hurt and I don't pout. But I will go to the mat to get a lawyer to try to get off a juror that I don't like. On the other hand, if I'm okay with a juror and then the attorney says to me, “I don't have a good feeling or I don't think I can speak with that juror,” I'm not going to try to get them to take that juror if they don't think that's somebody that they can talk to. At the end of selection, once the jurors are in the box, I usually will send the attorneys my notes of the jurors that are selected, so that they know who they are, or are mindful of who they are. A lot of times, after attorneys have jurors in the box, they just go try that case the way they were going to try it, no matter who the jury is. But there really is a way to tailor your arguments and what questions you might ask certain witnesses based on who's in the box or by using words they've used in voir dire or some experiences that they've shared. I try to send my notes on who the jurors are so the attorneys can be mindful of that as they try the case if I walk out the door after the jury is picked and I'm not back anymore.

Do you consider the goal of jury selection a selection process or a deselection process?

The description “jury selection” is truly a misnomer because it is 100% a deselection process.  The only decision we get to make is who we kick off. We don't get to pick our kickball team like in elementary school. I guess I'm dating myself, maybe nobody plays kickball anymore, but we are kicking folks off. That's the only thing we can ever do and so that is one thing that I think is hard for a lot of trial attorneys. Most of us weren't taught to go about it that way. I am always or almost always writing questions that will elicit responses and illuminate bad jurors from my side. I love it when a juror shows me that he is horrible for my side. That's my favorite juror in voir dire because I know exactly what to do with that juror. If we write questions that elicit good jurors or reveal good jurors for us, we are doing the work for the government because they know who then to strike. We are just uncovering strikes for them. I'm not keen on doing the government's job for them. Let them do that work. We're trying to surface bad jurors so we know who to get rid of. Regarding bad jurors, although I am not a fan of jury profiles to any great extent, the only thing that's truly helpful, besides spending half an hour in dream land, is to profile a bad juror. What's the profile of the juror I can't live with? Attorney’s love talking about the dream juror, but I am pretty sure if we ever see that person, the government is going to strike them. Maybe it’s fun but it's not very useful.

When you say profile a juror, you mean when lawyers sit around and opine on who would be ideal jurors on the jury?  

Yes. Women versus men, old versus young, or who do we ideally want. They will pick the most superficial qualities or attributes of people. To say that we can make judgments based on gender, age, marital status, or education history is absurd. God bless us all for wanting life to be that simple, but it's just not and people are complex. All women over a certain age or under a certain age clearly do not think the same way. Marjorie Taylor Greene and Liz Cheney are two blonde, white Republican women, and they don't agree on much. It really does not help us to look at people that simplistically, unless we are in that courtroom where the judge asks questions for 10 minutes and then we have to strike and then maybe I'm not going to pick an accountant and I am going to pick the social worker, but that's if I have nothing else to go on.

Can you give us your advice on how to handle a voir dire with little time? You might have been able to identify your bad jurors, but you have anywhere from 10-20 people you know nothing about. What would be your strategy?  

That's hard and so what you try to do is get something out of the ones you know nothing about.  Once you've identified the bad jurors, ask, if you are allowed, “Juror number 13, can you tell me what you were thinking about what this bad juror just said? What was your reaction to that?” That way we get something out of them to go on. Otherwise, we are doing what I was talking about and just striking based on our stereotypes or profiles. I mean, if that's all you can do, that's all you can do.

In this limited time do you focus on those that you think will be realistically at play based on your predictions of peremptory challenges and cause challenges or do you just try to get as many talking as possible? 

It’s so different in different courtrooms. Sometimes judges will shuffle jurors, believe it or not. There are many different ways to strike a jury, but if you can tell where the playing field is and if we're in federal court, the magic number is 28 -- the government gets 6 peremptory challenges, we get 10, and there are 12 jurors to be selected; so, the first jurors are going to come out of the first 28 qualified jurors (if that's the way you're doing it). In that case, you're crazy to spend time on number 42 because you are never going to see that juror on the panel. I don't care if people get their feelings hurt or what they think because I'm never going to see them again. You know, God bless them, but I don't need to waste my time on them. So, absolutely spend time on the jurors in play and not those that you love that you think the other side is going to strike or those that you know you're going to strike. You've got to go for the ones that you have questions about and, more importantly, the ones that will kill you if you are wrong. There are honestly sometimes that we may strike jurors who could have been good for us, but it's too lethal if we're wrong; for example, a juror who's a lawyer. I'm not saying I've never allowed lawyers to sit on the jury, but you are usually in real trouble if you're wrong about that lawyer. It could also be somebody who knows too much about whatever the subject is. The most dangerous juror is somebody who's going to be an expert in the jury room, and they will do that. They won't pay attention to the instructions. Those are jurors that can be the most lethal. The neutral jurors you know nothing about in the panel are with whom you should spend your time.

Explain more what you mean about lawyers focusing on legal principles during voir dire versus their theory of defense? 

Legal principles make us feel great, right? Mr. Jones is sitting here cloaked in the presumption of innocence and they have asked something like, “Is there anyone here who cannot give Mr. Jones the presumption of innocence?” Generally, nobody raises their hand and then, you know, they feel great because they're all going to give Mr. Jones the presumption of innocence. But really they're not; they just don't want to raise their hand and flag themselves for that unless they are trying to get off the jury. Or maybe they do raise their hand and they're honest because this is the kind of case where they are so offended that they can't give Mr. Jones the presumption of innocence, but that to me is just not a great use of time. I wouldn't spend a lot of time there, but I would spend time talking about issues that have more to do with the case, for example, “Can you separate ethics from the law?” Some people say if the defendant did something that they think it's highly unethical, they're not able to look further to the next step and see if it violates the law before making their decision as to culpability.  You know, “Who thinks they might be that kind of person for whom ethics is so important that…?” Those are the kinds of things I'm talking about that would really impact your case as opposed to reasonable doubt.

You mean, for example, if you are representing a lawyer and you are going to acknowledge that he or she violated a bar rule but argue that this is not the same as committing a crime. Then you want to vet out how the individual jurors would react to this argument?  

That's exactly right. There are lot of times when these types of distinctions come up – for example, where somebody who could be civilly liable for something but not have committed a crime, or a doctor who may have had their license to practice medicine taken away but it may not mean that they're guilty of whatever they're charged with in this criminal case, or somebody paid a campaign contribution that may be a violation of a campaign finance law but that's not a crime. Those are the kinds of things that we often tend to be teasing out in white collar cases. And I'm going to go there every time, as opposed to asking about some legal principle.

I have heard of lawyers who retain either consultants or research firms to do internet searches, social media searches about the pool of jurors – What are your thoughts about this? 

If you’ve got the time and the resources to do it, it's critical these days. Now, a lot of times people's social media are locked down and so you can't get much. It's obviously much easier if it's the kind of case, usually a high-profile case, where you have a questionnaire in advance and you have some time to do that work and you can identify the jurors.  Sometimes it's a trick to find out if you have the right Mary Smith obviously, but if the conditions are such that it's feasible for you to do and you have the resources to do it, it's absolutely something you should pursue. I worked on a case where we did not have the jury list in time, and we maybe had half a day to pick the jury. In that scenario, we had people performing searches in real time to see if there was anything useful to get back to us in the courtroom quickly. It's a little bit like looking for a needle in a haystack. You may not find anything, but then you may find something that's absolutely pay dirt that tells you everything you want to know. You may also find something that reveals that a specific juror has not been honest. It's a good idea to do this work even once the jurors are chosen (if you haven't been able to do it in advance) because you may find something about the juror that means they did not answer a question honestly in voir dire and cases are getting appealed on some of these issues. If you look at the Tsarnaev opinion (Boston Marathon bomber case), one of the issues there on the reversal of that sentence concerned some social media found about the jurors between when they were questioned and when the jury was selected, and the judge did not let us follow up on it.

What are some of the complications or issues that come up in high profile cases? 

People do come that are seeking to get on the jury, the stealth juror. I've seen this in many high-profile cases. There are people who want to be on the jury because they have an agenda. They not only know what type of case it is, they know a lot about the case, and they either have an agenda to get on the jury to see that their sense of justice is served, or they're looking for their 15 minutes of fame. I was a jury consultant to the defense in the U.S. v. Theodore Kazinski, known as the Unabomber case, and we asked the jurors in a questionnaire, “What did you think or feel when you got your jury summons, and you realized it was for this case?” And one juror wrote, “Larry King, here I come.” You know, that was back in the day when Larry King had a show on TV. Thank goodness he was honest enough, at that juncture, to tell us what he was thinking. By the time he got into court, he said he was just kidding. But, you know, that's the truth. A lot of jurors are looking at it as their 15 minutes. The biggest complication in a high-profile case is truly the hidden agendas and that people already know enough about the case to have them. And then, you know, everybody's heard of it and it's hard to get people to tell you their opinions (when most of them have them, no matter how deeply held or not deeply held). They don't like to sound like their mind's already made up, or they're unfair in any way. It’s about trying to give jurors the permission to talk to you and let you know what they think and feel. And this is hard when they know the media is watching what they are doing, and their verdict is going to be reported on. Is their decision popular or unpopular? Who's going to go along with the crowd, just because they don't want to be the one known as the one who acquitted this villain? Those complications exist for sure.

I know we talked about your work in helping to develop a trial strategy in the past. When you are consulting on jury selection, do you inherently get involved in discussing trial strategy when working on juror questions?  

Yes. It obviously depends on what I'm asked to do, but it would really be impossible to effectively assist in a jury selection and help write the questions for jury selection if you don't have any idea what the strategy is. So, in talking through the strategy, even if that's not what I've been hired to do, it's not uncommon that we might tweak it a little bit. But I certainly need to understand it, even if it's not one I would have maybe crafted myself. If it's already set, I'm not there to tell the attorney, go back and rethink that. But, to help them pick the jury based on their strategy, I ask questions regarding the case, and maybe the questions I ask could lead an attorney to rethink a certain thing or refine it. Each phase of trial preparation that I am asked to consult with counsel on, whether development of a trial strategy, witness or client prep, focus groups and mock trials, or jury selection have distinct and independent qualities. But there is also a lot of overlap obviously.

What research is there in this area and what, if anything, does it show?

The research I find the most credible asks the question “When do jurors first lean?” Maybe you have heard the statistic, which is not supported, that 85 percent of jurors make up their minds in opening statement. That's just a myth that got codified and passed on through the years. In fact, the most credible research out there asked, “When do jurors first lean one way or the other?” The reality is they lean back and forth, or they move, you know, throughout the whole trial. And we know that because we wouldn't be doing our killer crosses and our brilliant closings if we thought we'd already won the case. But the research also shows that the biggest bulk of jurors lean in voir dire. Now that's not going to mean that they can't lean the other way, and that they don't lean the other way, but if you get them leaning your way earlier, you have less work to do to pull them around later. You're priming them.  

Is there anything else you think that we should be talking about as it relates to jury “deselection” that we've not talked about?

The one goal of voir dire, overpowering everything else, has got to be to flag the bad jurors and get them off. We want to show our theory so that we can see who won't buy it. And if doing so means that we're indoctrinating some jurors who are going to be on the jury to lean our way early, great. But the main point is to find out who won't buy what we're selling so we can get them off because that's the only time we get to make that decision. That's where our mindset must be. Deselection is the Number 1, Number 2, and Number 3 thing we're doing during jury selection. 

After this, one of your other goals is to establish your own credibility with the jurors and you do that through a great voir dire anyway. You talk to them in real people terms and listen actively to what they say and follow up on it in a non-cookie cutter way. Doing all that not only makes for an effective voir dire, but it is also establishing your credibility and rapport with the jurors. There are certainly other goals that come along, but the deselection piece must be at the forefront of what we're doing. You know, people say they won the case in jury selection. In almost 30 years of doing this, I can think of one case, one, that I say, “We won that case in jury selection.” In that case we were not going to lose no matter what we did, once that jury was in the box. In all the others, we're picking a jury with whom we can win. So, you can sure as hell lose the case in jury selection. And the rest of the time, we're picking a jury with whom we can win, and that needs to be our goal.