Verdict - Summer 2011 - (Page 10)
Let the Jurors
BY JOE GUASTAFERRO
n courtrooms across the country, the culture of jury selection is frustrating to jurors, less than helpful to attorneys and barely tolerated by judges. Preparation for jury selection is often last-minute and the attitude that generally pervades lawyer-thinking is, “I’ll know a good juror when I see one.” The process can be improved through communication, collaboration and compromise. This article starts with a look at jury selection from the juror’s perception of the process. With that perspective in mind, suggestions are made for how judges and lawyers might collaborate to improve the environment in which jury selection occurs. Finally, there are suggestions for how lawyers might improve their technique to best utilize the improvements that might be achieved.
The Juror’s Perspective
When a citizen receives a jury summons, it is always a surprise that disrupts the routine of their daily lives and they are thrown by it. They have numerous work and family logistics to resolve. At the courthouse, jurors walk into an atmosphere that anticipates their lack of cooperation and projects an attitude of, “I know you do not want to be here but you have to be.” Their identity becomes a number. When they move from the assembly room to their assigned courtroom, the deputies give a list of “dos” and “don’ts” that is mostly “don’ts.” Systems, procedures and protocols are at work, but invisible to them. Perhaps the most detrimental aspect of these ﬁrst moments the prospective juror is in the courtroom is the atmosphere of tension between the courtroom principals that pervades. Judges and lawyers are in a tense relationship that borders on animosity veiled by a thin veneer of professionalism. The lawyers engage in a level of contentiousness that is palpable. Jurors respond to this environment and become guarded as they try to ﬁgure out what is expected. The desired goal of jury selection, candor and openness, is obliterated by their un-verbalized but visibly expressed concern. Jurors are given information that is curiously paradoxical. They are told “there are no right or wrong answers” and that “all we want is your complete and honest response.” Then, when they candidly respond to a question in a way the lawyers do not like,
10 Georgia Trial Lawyers Association
their answer is challenged, the tone of the questioning becomes more like cross-examination and the juror is pounded on verbally. Even the casual observer can see the juror start to shut down, offer one word responses, and desperately try to get out of the eye of the storm. As the juror shrinks, the judge intervenes as if to save the day and says something like, “I’ll make this simple. What we want to know is if you can set those views aside, listen to the evidence, and apply the law as I instruct you. Can you do that?” The juror, verbally beaten into a submissive posture, of course responds “Yes,” the judge instructs the lawyer to move on, and the obstacle is passed; except that it is not. From that moment on, the juror will endeavor to ﬁgure out the answer implied in the question rather than responding candidly. To shift the paradigm from jury selection that is mired in the past and improve both the process and the outcome, we need to consider: 1. Ways to stop thinking about “juries” and to start thinking about “jurors.” 2. Abandoning the notion that if a juror is silent during general questioning, that he/she is qualiﬁed to serve. 3. Judges and lawyers collaborating to create and environment that allows the jurors to speak candidly. The entire paradigm shift to more effective voir dire can occur with a few adjustments that will not upset the apple cart.
Include the Courthouse Staff
As we begin to discuss some very practical changes that will make for better voir dire, let’s be clear that what we do and say in voir dire is at the discretion of the judge. Any changes we want to suggest must come through collaboration with the approval of the judge. We cannot show up on the ﬁrst day of jury selection with a proposal to change the Court’s procedure and protocol for jury selection and expect to have it well-received. People resist change, but institutions resist change even more. People in charge of systems and institutions resist mightily because of the anticipated impact the changes will have as they ﬂow down through the institution or system. To suggest a larger jury pool because of the nature of the case, the use of questionnaires, or to request individual voir dire on even a limited issue, we need to start explaining the reasons we need the change early in the pretrial process.
Table of Contents for the Digital Edition of Verdict - Summer 2011
Let the Jurors Be Heard
A Rule Needing Limits: The “Right For Any Reason” Rule
Speaking Out of Turn: Ex Parte Interviews With Plaintiff’s Treating Physicians
GTLA 2011 President’s Gala: In Pictures
Legislative Relationships: The Key to Legislative Results
Welcome to the Federal Rules of Evidence: Georgia’s New Evidence Code
Judicial Spotlight: Reflections from the Bench
Book Review: The Fall of the House of Zeus
How I Obtained Justice for My Client: Cranford v. Ernest Homes
Technology Update: Securing Justice for Victims of Negligence? There’s an App for That!
Lessons from the Listserver: Is Defendant Driver History Permissible
Recent Updates in Workers’ Compensation
Welcome New GTLA Members!
Verdict - Summer 2011