Jury Selection: Should I listen to my gut?
In a perfect world, reason, analysis, and thoughtful discussion guide jury selection. Before jury selection begins, you have an idea of the type of juror you desire and the type who would cause you concern. Any jury research has been done and analyzed and, if allowed, juror questionnaires have been pored over and scored. A clear plan for voir dire is in place. But sometimes, in the middle of all this rationality, the trial attorney has a visceral reaction to a juror. “My gut says to trust this one,” she says. Or, “I can’t say why, but that juror gives me a bad vibe,” he says. How much of a vote does the gut get?
Our answer is: If you gut is telling you to keep a juror who indicates they are against you, then do not trust your gut. Outside of the actual jury selection, it is difficult to imagine wanting to keep a juror who expresses biases against you, but this situation arises quite frequently. Even experienced trial attorneys tend to be seduced by the following reasoning:
*I can reach him because we’re similar. Although the similarities may be real and clear to you, jurors typically see only a limited facet of your personality. As a result, those similarities are rarely obvious to them.
*I can reach her because she’s intelligent and reasonable. While intelligence and reasonableness are definitely positive attributes in a juror, they do not ensure that a juror will share or adopt your perspective. Intelligent, reasonable jurors often see the case very differently than you do – and they are likely to have a lot of sway over other jurors.
*I can reach him because he likes me. Being liked by jurors is important, but a juror’s positive feelings toward you oftentimes do not transfer to your case or client. In fact, in post-trial interviews, jurors will comment, “I really liked Mr. Trial Attorney, it’s a shame his client was liable and had to pay lots of money.”
Our rule of thumb is this: Always believe a juror who tells you they are against you. That type of honesty may make them endearing. And self-aware. And likeable. But they are still against you. And the attitudes that cause them to lean against you took a lifetime to develop; that belief system is deeply entrenched. Believing that you can alter that over the course of a few days or weeks is unrealistic and unwise.
So, is the gut always wrong? No. Guts are like Socrates’ daimonion, a sort of guiding spirit, that never told Socrates what to do, only what not to do. Most people are sensitive to cues of not being liked and we can tell if someone isn’t receptive to us. As a result, experienced trial attorneys can sense when there’s some problem in connecting with a juror. Although they may be unable to articulate exactly what the issue is – it is often described as a “bad vibe” or a feeling that they can’t reach that juror – their gut says “No.” Those cues provide valuable warnings that should be heeded. So in your next jury selection, please remember: When you’re gut says “No,” listen to it. When it says “Yes,” say “No.”
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
