JURY SELECTION AFTERTHOUGHTS

​This is my very favorite thing to do as a lawyer.  Although I have only had the opportunity to do it a handful of times, the process is extremely exciting and fun.  At one point I attended a seminar given by a very good jury selection consultant and decided to get glasses that would enhance my vision beyond 20/20.  The reason for my decision is that I realized there is always going to be an intangible attached to the process.  The intangible is that even after accumulating as much statistically significant information as possible, we cannot predict with absolute certainty the degree of prejudice and bias a person brings with them to venire on a particular issue or sub-issue.  The enhanced vision I thought would allow me to narrow down the uncertainty even to a higher degree by allowing me to interpret micromovement all people produce when they are confronted with something that is contrary to their comfort.
For example, one would technically not need to ask someone if they are uncomfortable with the notion of something in order to learn whether they are.  One could simply make statements about the topic and observe physical reactions.  This concept goes a little beyond the usual body language observations, but really is focused on micromovement.  It may be as simple as observing a person’s facial markings and then observing how these markings were formed given their reaction to statements.
In preparing for voire dire, you must understand what you need to prove at trial.  You need to know what the burden of proof is, what a jury can employ for the purpose of making its decision, and how to express it to your pool during the inquiry.  You will then need to make lists of questions that have some kind of an impetus to what you must prove at trial.  You may want to employ repeated questions or statements that in time embed commands into the jury pool.  Thereby causing the members of the sworn pool to already have a predisposition toward accepting your presentation.
Other styles may involve saying little and observing much.  There was a trial I assisted in for jury selection in which the plaintiff’s lawyer spent at least four hours asking questions and talking.   The defense attorney was actively observing the jury pool throughout the entire time the plaintiff’s lawyer was talking.  The defense lawyer was not taking any written notes, and he did not have anyone there to assist him.  The plaintiff’s lawyer felt very confident and good about the jury pool.  Now it was the defense lawyer’s turn to address the jury.  He introduced himself, and then asked one question to one particular member of the pool.  That individual that was addressed went into a monologue that caused the plaintiff’s lawyer to motion for a mistrial that was granted.  In this instance, the defense lawyer knew that if the case moved forward there was a high likelihood the plaintiff would obtain a very high verdict and eliminating that likelihood was of paramount importance. 
The purpose of voire dire is to eliminate members of the pool who have inherent or implicit bias and prejudice against your client, your client’s case, your client’s lawyer or firm.  You must find out who is of the opinion that is contrary to your client’s interests and obtain their testimony to their negative opinions on the record so that the Judge will be obligated to dismiss them given what is called a “for cause challenge.”  In order to do this effectively, you must read the case law on jury selection. 
If you read the case law, and keep good notes during the process, you will be able to argue “for cause challenges” in a manner that would allow you to eliminate all those with bias and prejudice against your client’s interests.  The next tool is that of employing “preemptive challenges.”  You will only get a limited number for those.  Three per party so you have to know how to use them.
Once questioning of the jury pool is completed, you will then need to argue the deselection of certain individuals in the pool.  Remember, the opposition wants to have individuals remain as members of the jury who have demonstrated bias and prejudice against your client’s interests.  Make sure that you have kept good notes throughout the process so that your Judge does not consider the opposing counselor’s argument over yours simply due to not having observed you taking notes.
Before anyone begins the questioning of the jury pool, make sure you have found out the positioning of each potential juror, and marked a space in your notebook that provides for a juror number and surname.  That way you have the order in which every pool member was seated and in that way can calculate who is likely to remain once you have gone through your “for cause challenges” but before you have employed your “preemptive challenges.” 
The process of deselection begins with the Judge addressing counselors in relation to their position with respect to the first juror in the number one seat.  You will then have to address any language you elicited that would qualify as “for cause challenge” language in order to have that person eliminated.  Then on to the second, third, and so forth. 
Once you have gone through the “for cause challenges,” the Judge will begin to ask about any positions with regard to “preemptive challenges.”  If you find yourself in a situation that allows you to claim opposing counsel has sought to preemptively deselect a potential juror you really like due to nothing but what appears to be a deselection on the basis for race, or any other protected class, you must object to the preemptive move and the judge is then to begin an inquiry to determine if opposing counsel has a legitimate or reason not based on a protected class matter for preemptively deselecting a member of the pool.  Pay close attention.  If the Judge does not conduct the inquiry correctly, you may have grounds to appeal if the dismissal of that person occurs.  If there are any back strikes granted, remember both sides deserve equal treatment.  A Judge can really alter the outcome and is just another human being with his or her own set of inherent bias and prejudice so make sure to place all your concerns on the record but do so politely.
Once the deselection process has been done, the Judge will let the jury pool know who stays for the trial and who gets to go home until the next period for jury duty begins.  Those pool members that remain are then placed in their respective chairs in the jury box and sworn in to serve on the jury.  If you have objections to any of the individuals in the jury box being sworn, make sure you renew your previous motions and objections.  Once the jury is sworn, opening statements are delivered.