by Joel Matteson
From My First Jury Trial
LEARNED Until last year, I had second- chaired a few trials and had taken several cases to arbitration in my brief legal career. But I had never been lead counsel in a jury trial until last fall. I learned some valuable lessons.
Don’t Underestimate Voir Dire
If I had to say what the two most important factors are
in close-call jury trials, it wouldn’t be the lawyers, the
judge, the law, or the evidence. Instead, it would be the
client and the jury. (Obviously, if the evidence is stacked
a mile high against your client and you have no defenses,
personality won’t carry the day, but in that instance, you
might ask yourself what you’re doing in trial anyway.)
The key to understanding jury selection is accepting that jurors aren’t going to shed a lifetime of biases
at the courthouse door. Because jurors aren’t going to
change, your goal during voir dire is not to convince
but to identify. Ask questions that encourage bad (
biased) answers. After all, how can you eliminate problematic jurors until you know they’re problematic?
During jury selection, it’s not good enough to ask
questions that have only one right-sounding answer
because jurors are self-conscious about their
biases. They want to avoid looking unfair or
unreasonable. So your questions have to
be more sophisticated than, “Who here
doesn’t think he can be fair to my client?” Instead, phrase your questions so
that there are no obvious wrong answers.
Even better, phrase your questions so that
the wrong answer appears acceptable.
Your Client Is Everything
We all know that the likability and credibility of
your client at trial is important. However, your client
can be more crucial than the evidence, the judge, the
law or, believe it or not, your own brilliant lawyering.
Jurors aren’t steely-eyed logicians. They don’t set
aside their prejudices as much as we — or they — would
like to believe.
Instead, in deciding close cases, jurors “go with
their gut,” just as George W. Bush famously said about
his decision-making process. They view you, your
client, and the evidence through the prism of their
experiences, their biases, and their worldview. Even
if you are fortunate enough to have the winning ar-