McElhaney on Litigation
Rejiggering Jury Selection
Angus argues for giving opening statements before conducting voir dire
Posted Apr 1, 2008 3:01 PM CST
By Jim McElhaney
Friday is blue corn-cheese enchilada day at Zapata’s Chili House, and a heated discussion was going on at the back corner table. But there was a sudden hush when Horatio Standwell, the federal district judge, walked up and said, “Mind if I join this august group? It’s a little too stuffy for me over at the Peacock Club. By the way, I hope I’m not interrupting anything.”
Angus smiled. “Don’t worry,” he said. “We weren’t talking about judges.”
“For a change,” said Flash Magruder, and everyone laughed.
“Actually, we’re having a serious discussion about the lack of litigation skills among trial lawyers,” said Sandy Garcia.
“I would have thought that the National Institute for Trial Advocacy, the Inns of Court and other organizations have done a lot to help those problems,” said Judge Standwell.
“They’ve helped,” said Angus. “But like plain speaking and clear thinking, simple excellence is still in short supply.”
“What are the big problems?” said Judge Standwell.
“Opening statements, final arguments and everything in between,” said Beth Golden.
“Take direct examination,” said Flash Magruder. “I recently hired a bright young man to help out with some of my smaller plaintiffs’ cases. Great law school record. He got his first job with Windstrom & Crusher, who sent him to one of those two-week trial advocacy courses, and he worked for a while under the wing of ‘Tricky’ Strickland.
“They liked him at Windstrom, but he didn’t like their ethics—a great plus as far as I was concerned. And on top of that, my friend ‘the Mole’—who tells me what’s going on inside ‘the Crush’—said they were shocked when he said goodbye one morning and just walked away.”
“I had him second-chair with me on five easy cases, taking one simple direct exam in each trial. He practiced and I critiqued in preparation for every case. He’s intelligent and articulate, but once in trial, I had to take over his direct exam in every case. He covers all the points, but he just doesn’t have any idea how to put a coherent story together.”
Judge Standwell nodded in agreement. “I sometimes wonder about contemporary law school education,” he said. “I’ve seen a number of young lawyers who seem to think that if you just put everything in a bag, shake it up and then pour it out in front of the judge and jury, they’ll put it together for you.”
“Maybe it’s because no one’s really reading or writing these days,” said Angus. “Young people don’t read books; they don’t read papers. And when they ‘write,’ they use computers to cobble together little snippets of information, have a spell-checker proof it, and even let the computer put in paragraph breaks.”
REASON FOR APPLAUSE
“If you think direct examination is going downhill these days, cross is even worse,” said Sandy Garcia. “Too many young lawyers seem to think the point of cross-exam is to contest everything the witness said on direct, rather than score with a handful of powerful points that leave the witness shaken and damaged.”
“Exactly,” said Judge Standwell. “If I see one good cross-examination a month, I feel lucky.”
“And that leaves final argument,” said Dick Mudger. “Lawyers don’t tell the story of the case anymore. They tell the story of the trial: ‘First you heard Marvin Gardner say this, and then you heard Joselin Reynolds say that. Finally you heard Mike Caldwell say the other. And on the basis of this, that and the other, we ask you to return a verdict in favor of the plaintiff.’ ”
“Which is not even argument,” said Judge Standwell. “It’s summation, which is always a poor substitute for real argument.”
The judge was surprised when everybody clapped, but he was even more surprised when Angus said, “Judge, before you go, there’s one more topic we need to talk about: jury selection.”
“I know,” said Standwell. “When I started on the bench I was determined not to be like all the other federal district judges. I was going to let the lawyers conduct jury voir dire in both civil and criminal cases.
“At first, I had a standing order that lawyers would be permitted a ‘reasonable time’—generally two to four hours a side—to question jurors about their reactions to what was involved in the case.
“It didn’t work. Whether in civil or criminal cases, both sides would try to get away with as much argument as they could before the panel knew anything about the case.
“Prosecutors would ask hypothetical questions that would require each panelist to say the word guilty, as if they were programming the jury to reach a verdict before the case even began.
“Plaintiffs lawyers would try to get jurors to agree that a verdict of $50-$100 million would be an appropriate award whenever there were serious injuries.
“Defense lawyers in civil cases would try to get jurors to agree that making a defendant pay for anything would be a serious miscarriage of justice.”
“But not every lawyer conducts voir dire that way,” said Angus. “Like the late Jim Jeans, who taught trial practice for many years at the University of Missouri-Kansas City, used to say, most lawyers do it backward. First, they try to tell jurors how to think about the case instead of asking how they feel about what’s involved. Second, they tend to dominate the conversation by preaching to the jury, asking very long questions and getting only short answers that give them no real information. Third, they tend to focus on ‘objective’ information instead of trying to learn what the jurors really care about—which is far more important in predicting how they will actually decide the case.
“So for Jeans, the heart of a good voir dire was in three simple rules: Ask, don’t tell. Listen, don’t talk. Feel, don’t think.”
“That’s the heart of what Randi McGinn, a partner at McGinn, Carpenter, Montoya & Love in Albuquerque, does,” said Dick Mudger. “She spends hours thinking of the question she puts to the panel in civil or criminal cases, finding the moral imperative that will make the jury look at the case from her client’s point of view. Like, ‘This case is all about getting blamed for something you didn’t do. And I just want to know, is there anyone on this panel who has ever been blamed for something you didn’t do?’
“Of course, everyone has. It’s a universal experience. And how the panel members react to that question has everything to do with whether they think this defendant might actually be not guilty.”
A NEW ORDER
“Right now, I only permit lawyers to question the panel in criminal cases and nationally publicized civil cases,” said Judge Standwell. “Just like most other federal judges. But if there were some way to get lawyers to conduct jury selection like that, I’d change my rule tomorrow.”
Angus smiled. “Get out your pen,” he said.
“What do you mean?” said Judge Standwell.
“All you have to do is stop running your trials backward,” said Angus.
“Backward?” said Standwell.
“Exactly,” said Angus. “Why do you think lawyers work so hard in voir dire to persuade the jury?”
“They’re trying to sell their cases.” said Standwell.
“Bingo!” said Angus. “And when is the proper time to sell their cases?”
“Right again,” said Angus. “So how do you make the problem go away? Have the lawyers give their opening statements first—before jury selection. Then there’s no need to use voir dire to persuade—the lawyers can concentrate on who they want to excuse.”
“But can you have their opening statements come first?” said Standwell.
“There’s no rule against it,” said Angus. “Federal District Judge Tom Marten of Wichita, Kan., does it all the time, and he’s not the only one.”
Without saying another word, Judge Standwell picked up his briefcase and started to leave.
“Where are you headed?” said Flash Magruder. “The Peacock Club?”
“Nope,” said the judge. “Going to buy a bottle of Champagne. I’ve got a new rule to celebrate.”
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.