Friday, July 25, 2014

Does Silence at Trial Scare You?

Announcing a change:
Please enjoy this post, then checkout my new location -YoungonTrials.com  Thank you, Steve

Imagine you are sitting at counsel table, facing your first venire panel. You are going to pick your first jury. The judge says, "Counsel you may inquire."
You collect your papers and notes. Your prepared questions are just out of reach so half standing you push your chair back and bend over to pick up the errant sheet. Now you stand erect, sliding your chair with the backs of your knees. You sweat inside your clothes and clear your throat as you walk to the podium near the jury. A pit forms in your stomach. The hair on your arms stands on end. You are in fight or flight mode.
 
You arrange your papers on the podium, then rearrange them. You look at the jury box. All the potential jurors are watching you. You clear your throat. "Ladies and Gentlemen." You are really nervous. You have researched this. Anyone who would listen has heard about your upcoming trial. Everyone gave you advice on how to "voir dire" the jury. How's this working for you now?
 
"In this case my client is a small business person. The Defendant is a competitor who . . ."
 
"Counsel, this is not opening statement," the judge interrupts.
 
"Sorry your honor." You pick up your list of questions. Again you clear your throat and begin, "Has anyone had an experience where someone did not play by the rules?" No one says anything. You look right, look left. Still no one responds. "Nobody. Okay. My next question is, ‘Do any of you have a professional license?’"
 
WHAT HAS JUST HAPPENED?
 
A jury selection is like a cocktail party. You are talking to people you don’t know. As attorneys, we expect to ask a series of questions of complete strangers, and because the judge has put them under oath, they should answer every question honestly and forthrightly. It isn’t going to happen.
 
The first problem with our attorney in the example is that he acted like an anxious teenage boy on a prom date. He wants to get right to the good stuff without investing any time in the lead up. The attorney did not give the jurors time to feel comfortable with him. The attorney certainly did not share anything of himself with the jurors. He feels like the jury is cold because his questions supposedly fell on deaf ears.
 
The question, "Has anyone experienced someone who did not play by the rules?" is a fabulous question for a case where someone has done something anti-competitive, or injured someone by negligence, or any number of cases. If the question is a good question, why didn’t the jurors respond?
 
A FEW SECONDS ISN’T ENOUGH TIME FOR JURORS TO RESPOND TO THOUGHT-PROVOKING QUESTIONS.
 
Jurors need time to ponder deep questions - and your questions should be deep questions so you must give them time with every question. A few seconds isn’t enough time for jurors to respond to thought-provoking questions. The deeper your question, the longer jurors will need to process it and respond.
 
If you ask a question that seeks only information, such as, "What do your adult children do for a living?" the jurors’ answers will come quick. We recall, process, and respond.
 
On the other if you ask deep questions that the jurors must ponder, you must give them time. For example, "Name three people who have had the greatest influence on you." Could you answer that question without taking time to ponder? Of course not. It takes time to think over your life, consider the turning points in your life, and analyze the reason for those turning points. Then you have to think back over all the important books you’ve read, and all your teachers and religious leaders, and finally get back to your parents. After that quick analysis, you have to process all your choices to whittle the list to only three. It is not a quick process.
 
Effective jury selection is a series of deep "processing" questions rather than informational questions. The power of the questions however is lost if you are impatient.
 
WHEN THE JURORS JUST STARE AT YOU – DOES THAT MEAN "NO?"
 
When you ask jurors thought-provoking questions, there may be a long silence. Don’t interpret the silence as a "No." Jurors really want to answer your question because we are honored by people who ask deep questions of us. Remember the cocktail party. "Fluff" questions rarely make an impression. You will be remembered after the party if you ask a deep question related to a tidbit shared by someone in your conversation. The same is true of jury selection.
 
GIVE YOUR JURORS TIME TO THINK ABOUT YOUR GREAT QUESTION(S).

 
Unfortunately, silence is an oppressive weight pressing down on us. Attorneys feel "the jurors must talk to me or I am a failure." When jurors greet our questions with silence, we feel the urge to quickly advance to another topic, hopefully one that will generate a better response. That’s probably what our young attorney felt. When he saw that the jurors weren’t responding (aloud) to his question, he jumped to his next topic. But if he’d simply given the juror more time to answer, he would have received a response, and would have been able to learn more about the jurors.
 
 Here is a process for posing deep questions.

  1. Ask the question(and tell them how they should respond): "By show of hands, has anyone here ever had an experience where someone did not play by the rules?" 
  2. Show them how to respond: While asking the question, raise your hand in the air. (Telling them how to respond and then showing them how to respond triggers mirror neurons in their brains making their brains feel they are raising their hands and answering the question.)
  3. Pause. Don’t rush. Let your jurors process your great question. The longer it takes the better your question was.
  4. Look at your jurors. While you’re pausing, scan the jurors. They will be encouraged to talk by this simple step. You will see someone who will want to talk. I can’t explain how, but you will know.
  5. If no one raises a hand. Pick someone and ask, "Mrs. Jones, what was your experience with someone who did not play by the rules?" By asking her directly, you will get a great response. 
  6. Ask the juror to tell of the experience. Mrs. Jones will have an answer because everyone has met people who did not play by the rules. Ask, "Tell me what happened." She will share. Allow her the time.
  7. Follow up. After Mrs. Jones’ answer, you will be off and running. Ask other jurors about their experiences. "Anyone else? Mr. Gomez, what about you?" Then go deeper: "Why do you think rules matter?" "Is our society built on the idea that everyone breaks the rules?" etc.
THE FINAL LESSON IS EASY – GIVE THE JURORS TIME FOR YOU TO LISTEN TO THEM.
 
If the attorney asks a question, then moves on without asking the jurors to answer, he sends the message that what the jurors think and feel doesn’t matter. The jurors feel that the attorney has a check list of questions to get through and they are just there as his audience. We gain power with the jurors when they feel that we honor them as persons worthy of listening to and caring about.
 
JOIN MY JURY SELECTION WEBINAR SERIES
 
I am developing a webinar series on a unique method I have developed for conducting jury selection that facilitates the interchange between jurors. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire.
Please send me an email at bestlawyer@aol.com
and I will add you to email list. Also, you can be invaluable in developing the program. Send me questions you have or experiences you’ve had picking juries. 


Announcing a change:
Please enjoy this post, then checkout my new location -YoungonTrials.com  Thank you, Steve



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