McElhaney on Litigation

Listen, Don't Talk

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Illustration by John Schmelzer

Angus and I got to the office yesterday at 7:45 a.m. waiting at the door was Maria Archuleta, one of the town’s brightest young lawyers. Besides her briefcase, she was carrying a jug of dark mountain roast coffee and a bag of walnut bear claws.

“Good morning,” she said. “I need help. I’ve got a troublesome civil case in county court, and Judge Standwell at the federal court suggested I talk with you about it.”

Angus smiled. “Did the good judge tell you to stop at the Donut Hole first?” he said.

Maria laughed. “He even told me what to get. And when I gave them my order, the clerk asked me if I was on my way to see you.”

“Jimmy and I have no earth-shattering emergencies that I know about,” said Angus. “So let’s go in the library and talk while the coffee’s still hot.”

“I’ve tried a number of cases in state and federal court,” said Maria, passing out the bear claws. “So far, they’ve all been bench trials. But this time the defendant demanded a jury.”

“Probably to see if he could rattle your cage a little,” said Angus. “Who are you up against?”

“Dick Mudger,” said Maria. “The insurance defense lawyer. I figured with the economy the way it is, justice delayed by a long wait on the jury docket is just fine with him and his client.”

Angus smiled again. “You’ve got Mudger’s number,” he said.

“And I need to get educated on how to pick a jury,” said Maria. “So I watched the voir dires of three different cases in state court, done by six of the supposedly best trial lawyers in town.”

“How did they do?” said Angus.

“I was not impressed,” said Maria. “Every one of them talked too much—as if they were paid by the word. They gave long, confusing lectures about what they called ‘the litigation process.’ They delivered tangled explanations about who had to prove what. And every one tried to get the jurors to make commitments about how they would approach the case.

“The lawyers did all of the talking,” said Maria. “It didn’t seem like the way to learn anything about who was going to be deciding the case.”


“I agree,” said Angus. “What most lawyers do on voir dire is the twisted product of a litigation system that approaches jury trials backward.”

“What do you mean ‘backward’?” said Maria.

“It makes much more sense to start a jury trial with opening statements—to the entire panel—and do jury selection second,” Angus said. “That way, the questions we ask jurors make more sense to them, and their answers tell us more about them.

“But only a relative handful of judges in the entire country—like Federal District Judge Tom Marten of Wichita, Kan.—do jury selection that way.

“More judges give helpful thumbnail sketches of the case to the panel before having the lawyers start voir dire. If they don’t, it’s up to us to give five- or six-minute snapshots of our cases before starting to pick a jury. But that doesn’t mean you should argue the case during voir dire.”

“I wouldn’t,” said Maria, “but why not?”

“Because it will draw an objection from your opponent that will be sustained and throw you off your stride before the case even starts,” said Angus.

“So do a short coherent sketch of the facts. Make it clear, simple and nonargumentative. But tell the story so it awakens the panel’s sense of injustice.”

“Their ‘sense of injustice’?” said Maria.

“The heart of persuasion is in righting—or preventing—a wrong,” said Angus. “That’s what The Sense of Injustice, Edmond Nathaniel Cahn’s brilliant book from 1949, is all about. It’s worth looking for on the Internet. We may not be able to define justice, but everyone knows what is unjust. Even a dog knows the difference between being stumbled over and being kicked.

“Persuasion means showing—not telling—what is unfair.”

“But how do you do that without making an argument?” said Maria.

“The secret to showing instead of telling is to let verbs and nouns do the work instead of adjectives and adverbs,” said Angus. “With nouns and verbs, listeners make what you say their own idea, not what you told them to think.”

“I want to let that sink in for a minute,” said Maria.

“When it does, you’ll be ready to start talking with—not to—the jurors,” said Angus. “Getting them to tell you how they feel about your case. It should be a two-way conversation where they do most of the talking.

“The late Jim Jeans, who taught at the National Institute for Trial Advocacy, said there are three secrets to picking a jury:

“Ask, don’t tell.

“Listen, don’t talk.

“Feel, don’t think.

“Your first job during jury selection is to learn as much as you can about how the different members of the panel react to the moral imperative in your case.

“Then when you and your client decide who to keep and who to excuse, make your decisions more on your emotional response to them and their reactions to your case rather than overstudied notions based on the ‘objective logic’ that deals with their backgrounds, educations and ZIP codes.”


“Here’s an example,” said Angus. “Randi Mcginn, a partner at Mcginn, Carpenter, Montoya & Love in Albuquerque, N.M., was representing a 56-year-old widow—let’s call her Helen Garcia—who was charged with shaking a little 6-month-old girl to death while baby-sitting her.

“It was clear that the little girl had been literally shaken to death because of the traumatic damage to her vertebrae and spinal cord between her head and shoulders, as well as the massive bruises on her neck, head and shoulders.

“The only question was, ‘Who did it?’ The sitter swore that little Linda was fine when the parents returned, and when she left with the father to get a ride home.

“The prosecutor spent most of his time in voir dire getting every member of the jury panel to say the word guilty one by one.

“He said, ‘If the state proves to you beyond a reasonable doubt that the defendant is the one who so violently shook 6-month-old Linda Reynolds to death, what will your verdict be?’

“When it was the defendant’s turn, Randi McGinn stood up, put her hand on her client’s shoulder and said, ‘I’m here on behalf of Mrs. Helen Garcia.

“ ‘You’ve already heard her answer the prosecutor’s claim when Judge Marcas asked her, “How do you plead?” And Helen Garcia said, “Not guilty, your honor.” She was saying she is being blamed for something she didn’t do. This was a crime committed by someone else.’

“Then Randi raised her own hand and said, ‘I just wonder whether there is anyone on this panel who was ever blamed for something you didn’t do?’

“It was a brilliant question. Getting blamed for something you didn’t do is a universal experience. It has happened to everyone.

“But at first no hands went up. Randi went on. ‘Maybe it was something that happened when you were a child or in school. Anybody?’ she said, keeping her hand up.

“And then a 67-year-old woman in the second row raised her hand and said, ‘When I was 8 years old, I was coming home from school one day. And when I was skipping across the street, I saw something sparkling in the dirt and gravel next to the curb. I picked it up and brushed it off. It looked like a lady’s ring. It had a bright, shiny stone in it.

“ ‘I ran home and showed it to my mother. “Momma!” I said. “Look what I found in the street!”

“ ‘She said, “That’s a diamond ring! You never found that in the street. Where’d you steal that ring?”

“ ‘I took her to where I found the ring and showed her where I dug it out of the dirt, but she still didn’t believe me. You know, until the day she died, that woman thought her daughter was a thief. You have no idea how that hurt me.’

“Randi could see how the others were reacting to the story—some with understanding nods, others with looks of doubt. Then she asked if anyone else had been blamed for something they didn’t do.

“One by one, more than half the panel contributed their own experiences, and all of them commented on what was the heart of the case.

“Everything they said gave Randi and Mrs. Garcia more opportunities to see how each panelist reacted to the moral imperative in their case.

“At the end of the trial, the jury that Randi and Mrs. Garcia had agreed on said, ‘We find Helen not guilty!’ ”

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.

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