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Jury Selection By Frank Scahill

January 21, 2016
By: Frank Scahill

2015 is in the rear view mirror and the New Year found us back in Kings County on the first day, in a jury room speaking to another panel of prospective jurors. The group at this time of the year is mostly college students who deferred their service to the winter break. The new year is a good time to focus on jury selection and the questions we ask during voir dire. Jury selection is often overlooked by veteran Trial Lawyers, with the understanding that after many years in the Courtroom, the attorney has the 'right feel who would be good for the case.'

Selecting a jury that can give your defendant a fair trial and their day in court is truly the most important part of your service as a defense attorney. Jurors already know someone injured in an accident has the right to come to court to seek redress and compensatory damages. Anyone who does not believe in the system of compensation for injured parties will be excused for cause. Likewise your perfect defense juror, who voices concerns of excessive verdicts and speaks his or her mind about abuses in the system, will be bounced by the plaintiff long before you get to say hello.

Understanding the premise that no one wants to be there for one, and two, that no one wants to voice their true opinions in a room full of strangers, is very important. You need to start off on the right foot as a defendant. The jury panel is already against you when you stand up to begin your questioning.

Above all, you need to sound credible and fair. I usually address the whole room, with an innocuous question, "Is this everyone's first day?", which normally proves a "yes" response. At least you know everyone is awake. Next, I thank them for their service, briefly, acknowledging their importance to the justice system and fairness for all. You can tell them the only thing you and your adversary can agree on is that their time is valuable and you both appreciate their service.

Next, I like to set the tone from a defendant's perspective. I ask if everyone thinks it's fair that a person injured in an accident has the right to come to Court to seek compensation for injuries and other damages. Everyone will nod yes. Then, I ask, what about the person being sued, if they are wrongfully accused. Do you think they have the right to defend themselves at trial and let a jury decide who is right and wrong? That usually allows for a springboard for your defense, the essential elements of your case, what you will show them at trial. Ask, will they give your client (use his/her name) the opportunity to present witnesses to prove to them what you are saying is true. Will they give you the opportunity to earn their trust?

I also like to use a " defense" story for illustration. Some situation you can ask them about to associate with a person wrongfully accused. Such as, "Have you ever been on a long line at a grocery store and when you get to the cashier, the clerk is giving you an attitude and not paying attention to you?" When you pay with a $20 bill the cashier gives you change back from a $10 bill instead. When you protest, you get a surly response that "You gave me a $10". You know you gave a $20, because that is the only bill you had. People behind you are rolling their eyes and shuffling and you know the clerk is wrong. What do you do? How does that make you feel? Feel free to use that one. You would be surprised how many people had the same experience and will voice back to you how angry they got feeling ripped off. Use that feeling and turn the tide as much as you can. Remember, you are not looking for six people that will like you or your case. You want at least six people who will not hurt you before the case starts. Good Luck in 2016!

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