Does Silence at Trial Scare You?

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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. 

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Jury Selection: Can You Be the Matador Facing the Charging Bull?

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

You Can’t Get Them Out of the Jury Box With Dynamite.

A potential juror is an animal of strange mien. Upon receiving a jury summons, they may have called friends asking, "How can I get out of jury service?" When they arrive on the fateful day and sit in the jury assembly room, they pray they are not called to the courtroom. When their name is read and they are sent to a courtroom, they calculate the odds of escaping the 12 seats in the box, because the last thing they want is to be put on a jury, until . . . they are put in the box. Then a strange phenomenon occurs. You as an attorney, facing these people who are so resistant to being on a jury, can’t get them out of the jury box with dynamite.


I have seen it over and over again. I finally figured that the reason someone who wanted more than anything to not get on the jury, is suddenly in love with the jury box. No one wants to be rejected. No one wants to hear, "You aren’t good enough for our jury." They rue the walk out of the jury box with all eyes in the courtroom focused on them as they pick up their book, their coat, their bag and are told to return to the assembly room – "We don’t want you on our jury,"

With this dynamic in mind, I had no idea what I was going to do during jury selection on a very big case. Both sides had exercised all their peremptory challenges (because there were horrible people for both sides in that venire panel). The clerk seated four additional prospective jurors. I felt I was in trouble when I arose to ask my questions and prospective juror number 11 crossed his arms and glared at me.

No One Will Admit, "I Am Prejudiced."

Most attorneys I have encountered do not know how to establish the foundation to dismiss a juror for cause. No one will admit, "I am prejudiced." A few will say, "I can’t be fair," but don’t stake your case on that happening.

I posed opening questions to Juror number 11. His answers scared the hell out of me. I had to stand there like the bull fighter who stares into the charging bull’s eyes no matter the fear in his heart. I had to absorb his abuse knowing I had no peremptory challenges left.

It’s not easy having your client attacked in front of the other jurors. It’s not easy remaining calm when you’re attacked. I worried, would this affect the other jurors? Were his answers ruining any chance at a fair trial?

My matador’s cape suddenly seemed very small as the beast charged my case.

I don’t know where it came from, but I responded with an observation, "Sir, you seem to me to be a person who is highly principled."

He acted like he did not know how to respond to this after his attacks. "Well, I yes I think I am."

"Your principles are very important to you aren't they?"

"Yes."

"Are you concerned that if you sit on this jury that you will be asked to set aside your principles by the attorneys or the judge or the law?"

"Now that you mention it, I guess that you’re right."

"And you don’t like that do you?"

'No."

"That really bothers you doesn’t it? Because your principles are really important to you aren’t they?"

"Yes they are."

"They are important to you because they make you who you are don’t they?"

"Yes they do."

"You wouldn’t give them up would you, not for anyone?"

"I hope I wouldn’t have to make that choice."

"No one should have to. Let me ask you this. What if during this trial someone tells you that you must do something that you think is contrary to your principles?"

"Like what?"

"What if the judge instructs you and the other jurors that if you find certain things, you have to give an award that is against what you think is right? That would be asking you to give up your principles wouldn’t it?"

"Yes, I guess."

"Would you do it?"

"Do what?"

"Give up your principles that you hold dear, would you give them up?"

"I don’t think I would like that."

"None of us would like that, but what I am asking is: would you set aside your principles to rule in this case?"

"I don’t think I would."

"Why not?"

"I think principles are what make us who we are. A man without principles is not much of a man in my view."

"Exactly. You have summarized what you feel in that one sentence haven’t you? If you relinquish your principles, you relinquish yourself."

"Yes that’s right."

"And that’s true whether it is me asking you to do it, or the defense attorney, right."

"That’s right."

"What if it’s the judge asking you to put your principles aside? What if he instructs you that are to do something and you don’t agree with it?"

"I wouldn’t do that."

"It doesn’t matter what it is he’s telling you, if you feel it’s against your principles, you’re not going to do it are you."

"No."

"What if the judge is instructing you on the law and you think the law is contrary to your principles. You wouldn’t follow the instruction would you?"

"No."

"Because you won’t do something that is against your principles, even if it’s the judge telling you to do it, right?"

"That’s right."

"Thank you for your honesty, sir. It takes a brave man to tell a judge that your principles are more important to you than what the judge might instruct you to do."

When time came to challenge the potential jurors for cause, I succeeded over my adversaries arguments to get the principled man excused because he told the judge that he would not follow the instructions if they conflicted with his principles. Less than this and the court will probably not strike for cause and you better have a peremptory in your bag.



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


Would You Please Help Me?

I am in the process of developing a free webinar series on a unique method I have developed for conducting jury selection. This method facilitates juror interaction and the development of relationships in the jury. I intend to make this a 6-session webinar and go in depth on how to become powerful at voir dire. You can help me develop these programs and assure that I cover every important issue. Please send an email to Bestlawyer@aol.com with your questions about jury selection. If you are interested in getting a notice when I'm ready to launch the webinars, send me an email with your name and request a notice.

3 Problems with Opposing Medical Experts you can Solve with the AMA's Ethical Rules.

The Code of Medical Ethics of the American Medical Association presents fertile ground for counsel to cross examine opposing medical experts. In my experience, most doctors are unaware of these rules and in all cases violate the proscription against disclosing without permission, the plaintiff’s medical information derived from a medical / legal examination. 



Problem 1: The Physician Who Demands Payment to Testify.
Invariably when I serve a trial subpoena on a treating physician concerning a client, the doctor immediately demands that I pay an exorbitant fee and threatens to either ignore the subpoena if I don’t pay, or worse threatens to scuttle my case if the judge compels him to testify. Somehow doctors have elevated themselves to paid witnesses no matter their role at trial.

I respond, citing Rule 9.07 "Medical Testimony" of the AMA Ethics Rules, which provides:

"As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights."

The ethical rules are silent as to any compensation to the doctor, and instead impose an affirmative duty on the doctor to appear and testify.


Problem 2: The Other Side’s Expert Hasn’t Treated a Patient in Years.
What do you do when you encounter the professional witness physician? You know the type; he does not treat patients but makes his living selling insurance medical examinations (IMEs) and delivering damning medical testimony. Rule 9.07 "Medical Testimony" addresses this and gives a rich source for cross examination.

"Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise."

A cross examination of a professional medical witness might sound like:

"Please tell the jury how long it has been since you treated a patient."

"Five years ago when you lasted treated a patient, what area of medicine was it in which you were treating that patient?"

"How long ago was it that you last practiced medicine in the area in which you are offering your opinion today?"

"Have you retired from the practice of medicine?"

"I mean, are you still using your medical school training and the experience you obtained caring for the sick and injured to generate income for yourself at the present time?"

"Is that income only from examinations related to court cases, like this one?"

"When you come to court to testify, you are paid as an expert witness , correct?"

"During the past five years, you sole source of income from your medical training has come from serving as a testifying expert for attorneys at trial, correct?"

"Are you a member of the AMA?"

"Please tell the jury what that is."

"Please look at Exhibit 47. For the record your honor, 47 is the American Medical Association’s Code of Ethics. Do you recognize that Doctor?"

"Tell the jury why you haven’t seen this in 30 years."

"Regardless of that, please look at Rule 9.07 "Medical Testimony" of the American Medical Association. It says, ‘Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medical expertise.’ Please tell the jury what ‘substantive experience’ means."

"Please tell the jury what ‘recent’ means in that rule."

"Please tell the jury why whether you have resigned your membership in the AMA."

"Did you resign your membership in the AMA because you did not want to be a member of an association that says that if you have not treated patients for five years that it is unethical for you to testify in that field?"

"No further questions."


Problem 3: The Opposing Medical Expert Assumes the Role of Advocate.
Who hasn’t confronted the physician at trial who assumes the role of advocate and argues not only the opponent’s case, but sets out to destroy your case, even if the testimony is not medically sound?

Rule 9.07 of the AMA Rules of Ethics tells doctors that they cannot be advocates:

"The medical witness must not become an advocate or a partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician's evaluation of the case."

"Doctor, are you here as an advocate for the defense?"

"What does it mean for a doctor to be an advocate in a case?"

"You know you cannot be an advocate, or else you violate the ethical rules of the AMA, correct?"

"You know that part of your obligation to remain neutral and not be an advocate requires you to tell my opponent not only the medical information favorable to his defense, but also the unfavorable information developed during your examination, correct?"

"Please list all the information unfavorable to the defense that you developed during your evaluation of the Plaintiff."

"Why didn’t you note that information?"

"Is safe to assume you did not share that with my opponent?"

"Is it also safe to assume that you did not intend to share that with the jury, unless perchance on cross examination, I asked you specifically about it?"

Note:  After getting the doctor to state for the jury that he is not an advocate, if the medical expert begins to slip back into the argumentative role, I bring them back by asking:  "Doctor, are you advocating again?"  When I do this, the doctor embarrassedly apologizes and affirms, "No, no please ask your question again, I try to answer it."


Check back each Friday for my posting of new installments of Young On Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at Amazon.com for only 99 cents each. One is called "You’re Fired! " and the other is called "I Quit!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.  If you have any questions, you can email me, I'll answer.

Until next Friday, thank you for reading.