Selecting the Ideal Juror
SELECTING THE IDEAL JUROR
THE TOP TEN PRACTICAL TIPS FOR
PRODUCT LIABILITY LITIGATORS:
NO-NONSENSE STRATEGIES YOU CAN USE RIGHT AWAY IN YOUR PRACTICE
PREPARED FOR NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
SPONSORED BY THE NEW JERSEY STATE BAR ASSOCIATION PRODUCT LIABILITY SECTION
Andrew J. Rossetti
ROSETTI & DEVOTO, P.C.
May 15, 2008
I DEMEANOR AND APPREARANCE
VI WEALTH AND SOCIAL STATUS
VII MARITAL STATUS
Jury selection is a complex topic that many psychologists, lawyers and jury consultants have exhaustively researched in search of the ideal juror. The purpose of this article is to educate lawyers to general juror characteristics. It is the lawyer’s job to take that information and apply it to an individual case since every case will have different ideal jurors.
There are many differing views on jury selection. Some lawyers simply say give me “the first six” and I will be fine. Other lawyers spend tens of thousands of dollars on jury consultants. My own trial experiences have led me to somewhere in the middle. The following generalities certainly help in jury selection but the attorney’s focus must be more individualized to a case-by-case basis.
Many people focus on the backgrounds of the jurors and in fact the model jury questions seek general background information. The most important principle for a lawyer to keep in mind is to delve deeper than these general questions. For instance, everyone wants to know whether a person has been involved in a prior case, but that information alone does not tell you much about that person’s life experiences. It would be more helpful to know the type of case, the extent of the injury and the perception that that experience left on that particular juror. There could be a juror who had a prior car accident claim who had a very negative experience or received a very minimal sum for a more major injury than your client.
I. DEMEANOR AND APPEARANCE
A. PLAINTIFF’S PERSPECTIVE
DEMEANOR Avoid jurors with crossed feet or arms, clenched fists, poor posture, cocked head, hands in pockets, a kicking foot, those who talk through their teeth, who stand with their hands on their hips or behind their backs, who drum with their fingers.
Build Round-faced, jovial, heavy person is more desirable for a plaintiff than a slight, underweight and delicate type. The athletic-looking juror is hard to convince, but once convinced will usually “go all the way for you.”
Posture The open and nurturing people will be sitting in open postures, i.e., with their hands on the chair arm instead of folded across their stomach. They’ll be engaged with other people, instead of keeping to themselves; they’ll look relaxed, not worried. They tend to be more on the heavy side than the light side – not fat – but full bodied. Their whole demeanor will look ‘open.’
Intelligence Persons of superior intelligence should be avoided, since it is harder to dislodge preconceived ideas of highly intelligent people, and they will influence the other jurors. People of “medium” intelligence are best.
Plaintiffs should avoid strong, dominant men and the disabled, who may be “embittered” by their misfortune and thus less likely to sympathize with the plaintiff, who is “no worse off than they are.”
Plaintiffs should avoid “meticulously dressed” jurors
A nurturing, open, receptive and generous person will be casual and comfortable with loose fitting cloths. The shoes will have plenty of room for the toes, because these people don’t want to be hemmed in. The heels will be low, because open people want to be able to move around easily. No stilettos. Sandals, sports and walking shoes are more likely to fit this person’s style than compact, tight dress shoes.
Jackets, shirts and sweaters will be open, not buttoned up. Their clothes, like their shoes, will be clean and neat, but not obsessively so.
Hair style – Their hair style will be casual and naturally flowing, rather than highly styled or gelled or plastered to the head. Indeed, the styles will be “big” rather than small. Beards and mustaches will be natural looking, rather than designed and sculpted.
An open and generous woman will probably carry a big handbag that has room for lots of things. Her accessories will fit loose on the body – no chokers, for instance or scarves tied tight around the neck. Her earrings might jingle, instead of fitting close to her face.
B. DEFENDANT’S PERSPECTIVE
DEMEANOR Demeanor The more tension in the person’s body language, the more closed that person is. Notice the different degrees of tension, therefore, between hands loosely fisted versus hands tightly fisted with white knuckles. The stronger the tension holding the body together, the more difficult it will be to get that person to open up to new ideas and persuasion.
Character As defense counsel, you want jurors who are more restrained and disciplined, both with their feelings and their pocket book. They believe everyone should take responsibility for what happens to them and not blame others or look to others to get ‘fixed up.’
You will be looking for jurors who are the opposite of the plaintiffs above, i.e., up tight, restrained and cautious. You do not want people who are expansive or ebullient; on the contrary, your ideal jurors will be closed – closed to a plaintiff’s suffering and clutching a closed purse
Posture They will sit in the courtroom in closed postures, i.e., with arms and legs folded, holding on to themselves. They will keep to themselves; perhaps they will be reading – giving minimum eye contact to others. And because it takes energy to maintain a closed posture, their body language will reflect some tension, i.e., a set mouth, a furrowed brow, hands tightly knitted together, or better yet – a tightly closed fist.
Closed, up-tight people will wear clothes that restrict their movement that is, their clothes will be tight fitting, tailored and formal. They will tend to button their jackets and shirts, instead of leaving collars open. Men might wear vests. Colors will be subdued so as not to stand out in the crowd. Their clothes will be carefully pressed.
Their shoes will be closed toes and heels; no sandals, for instance or – for women – no slings or open toe pumps. This kind of person will wear more formal shoes than casual or sporty.
A closed and restrained juror will wear a hair style that reflects that demeanor, i.e., the style will be carefully cut, and maintained. It will be neat and orderly and combed close to the head – and possibly gelled – to prevent it flying about.
Accessories will be minimal and understated. These are not flashy people who are trying to show off. Whatever accessories they wear – jewelry, scarves – will fit into the overall impression of a neatly packaged product, with no loose ends hanging about.
The so called baby boomers describe those born between 1943 and 1960. The “boomers” began with a predictable childhood and then came the Vietnam War, civil rights movements, and women’s rights movements. These events left boomers with the feeling that they could participate in changing the world.
They view losing a job as a catastrophic event.
The boomers faith in corporations was rocked by the Enron scandal and United Airlines pension debacle. Boomers direct their anger toward corporate executives because many of them believe that their pensions are written in sand rather than stone. The corporate executives however, in their eyes continue to get large retirement packages.
This group’s majority has an unfavorable view of anyone described as a “corporate defense lawyer”.
Boomers will “question authority”, they will not automatically assume that an expert or professional is right – or even tell them the truth.
Boomers report having more pain and chronic conditions than the other age groups. The early studies have shown that boomers more readily accept a claim for future medical care for millions of dollars than do the generation X or Y.
Older persons favor civil plaintiffs since they can identify with the experience of aches and pains, but tend to favor lower awards. Those over fifty-five who live on relatively fixed incomes may hesitate to award large verdicts.
Generation X makes up the Americans born between 1966 and 1976. More than 40 percent of all jury panels are made up of Generation X jurors.
Generation X people have been characterized as having trouble making decisions. They would typically rather take a hike in the mountains than climb a corporate ladder.
Generation X generally has no heroes and no style to call their own.
They crave entertainment but their attention span is very short. They live in the clicker generation where they fly through the TV channels.
A typical Generation X child has spent 22,000 hours watching television which is more than twice the number of hours spent in school. Psychologists report that those exposed to this form of communication generally exhibit passivity, inattention and lack of continuity. They expect to get their information in a painless non-challenging form using built-in techniques designed to motivate the listener to stay tuned.
They are pro business but unsympathetic to corporate executives.
Generation X jurors mistrust the corporate defense lawyer more than the personal injury lawyer, but they don’t like either one.
As jurors they want more data and the source behind it presented in a concise technological way. They obtain information visually and in short clips. They have little patience for long winded recitations and they want the “bottom line” especially on conclusions of experts.
Plaintiff’s lawyers will be happy to learn that Generation X jurors in a recent study were found to usually compensate an injured party with higher damages than any other age group. They were particularly high compensating for lost income. However, liability still stands as a huge obstacle when arguing to these jurors.
Generation Y is made up of people born between 1977 and 1994.
Generation Y came of age during an affluent time in American Society most of their life experiences include a sense of entitlement and security. They have generally been raised by extremely involved parents.
Generation Y jurors want even more evidence presented via technology than Generation X does.
Generation Y, regardless of the judge’s instructions, are very likely to Google the attorneys and witnesses and look at their web sites. This includes checking out the plaintiff’s my space site.
Generation Y jurors are most comfortable when the courtroom becomes like a classroom with the attorney educating his or her students.
They believe more than any other group that people should be held accountable for their own actions. Generation Y are reluctant to compensate for pain and suffering beyond the cost of medical treatment and/or any lifestyle changes.
The twenty-one to thirty age group has had less experience and cannot fully appreciate serious permanent injury as do the older above thirty group.
A. Plaintiff’s perspective
Artists, musicians, actors, small businessmen, salesmen, students, social workers, teachers, writers, musicians, persons on welfare, laborers, carpenters, mechanics, salespersons, and office workers are good civil plaintiff jurors.
These kinds of people are touchy-feely; they are gregarious, socially oriented and often work in the helping professions, such as social worker, teacher, therapist, sales. They do volunteer work.
Nurse Some suggest nurses are not good for plaintiffs because they are too intolerant of pain.
B. Defendants Perspective
Bankers, bank employees, accountants, engineers, members of management, low-salaried white collar workers, retired police officers, military men, school teachers, clergymen’s wives, utility company employees, insurance representatives or adjusters, farmers, accountants, engineers, professional people generally, tool and die makers, cabinet makers, corporate executives, superintendents, and former court officials. They are more ‘thinkers’ than ‘feelers’.
These kinds of people are uptight; they hold on to their preconceptions. They often fill responsible positions in those professions which require analytical thinking, such as engineers, accountants, computer programmers and managers. They are usually part of the ‘establishment,’ and are satisfied with the status quo.
Women are sympathetic and conscientious jurors.
Select male jurors when representing a female plaintiff, and female jurors when opposing a female plaintiff. Women are envious of “attractive or successful women” and should be avoided where the plaintiff or his wife is young and attractive.
If the plaintiff is male, the defense should select women.
In the more recent studies, it is suggested that suburban housewives are conservative on damages and unsympathetic to plaintiffs.
Plaintiff’s perspective Blacks, Hispanics, Irish, French, Italians, and other groups that have experienced oppression are sympathetic to plaintiffs. Jews “are enamored of the medical profession” and thus might not be good plaintiff’s jurors in medical malpractice cases.
Defendants Perspective Germans, English, Orientals and Scandinavians are considered to be best.
VII. WEALTH AND SOCIAL STATUS
Confusing data Biskind and Harrington and Dempsey argued that poor people are not used to thinking in large sums and may be better for a civil defendant. Keeton stated that white-collar types identify with businessmen and, though used to big sums, will be less likely to give large awards. Belli asserted that the upper class favors civil plaintiffs, and Adkins that the poor believe they should stick together when in trouble.
VIII. MARITAL STATUS
Married people are more experienced in life and more forgiving, and thus good for plaintiffs.
Prepare for your next jury selection by reviewing this general information and enter the courtroom with an idea of the type of juror you would like to obtain for your particular case. You will then be better able to select your ideal juror and not just react to a perceived bad juror.