Teaching Jury Selection


Scott Greenfield has been having a discussion with his multiple personalities, all of whom are named “Steve”, about what to do with 3Ls (presumably when they’re not on law review, tormenting law profs). Scott and the Steves propose actually teaching law students how to be lawyers.

I’ve been giving a lot of thought lately to the woeful preparation law school provides us for practicing law. It could well be the subject of a class action suit, except that most law school graduates don’t know enough to sue until all applicable statutes of limitations have expired.

For a few years I helped teach a criminal trial advocacy class at my alma mater, the University of Houston Law Center. It was fun spending three hours every Wednesday evening teaching future lawyers, and several of my students are now in practice on either side of the bar. The students trying cases are doing well, and I feel like I contributed something to their education.

In my experience, the most difficult part of a trial to teach is jury selection. (Cross-examination is easier to teach but more difficult to execute.) I’m not talking about teaching “accept jurors in this racial / occupational / social / religious group, and reject jurors in that one” — any idiot can teach that, and many do. I’m talking, rather about the art of getting potential jurors to reveal to the group the private thoughts that will affect how they decide your client’s case.

Lots of people are afraid of public speaking. These people might think they need to get over their fear of public speaking to select a jury. To the contrary, they need to get over their idea of voir dire as public speaking. Voir dire is not about speaking but about public listening. As a rule of thumb, the less the lawyer speaks during voir dire, the better.

(In Texas, jury selection is usually done en masse. In states with individual voir dire, the skills required are a little different.)

The only way to learn how to listen to a jury panel is to do it. The experience of picking a real jury can be very roughly approximated for a student by having the student’s fellows role-play jurors (having law students or lawyers play themselves doesn’t work because they are already a much more homogeneous group than a real panel would be). If everyone has a clear idea of the roles they are playing, and if they all take the acting seriously, then this works okay. The problem is that the role players usually don’t present themselves as subtly as real people do.

A better approximation of the real experience could be created by bringing in a group of ordinary people to be themselves in a mock jury selection.

There are companies that provide ordinary people for focus groups and mock juries; why not use one to gather a mock jury panel? By my math, a panel of 24 people for a day would cost $3,000. Add in room rent, refreshments, and a pro bono faculty of talented lawyers, and a day of jury selection school could be produced for less than $4,000.

If you took 12 lawyers at a time as students, the cost per student would be less than $350 per day. In an eight-hour day, each student would get a half hour or more before the panel, receive suggestions and critiques from the faculty, and learn from her fellow students’ performances and critiques. I would be inclined to incorporate related disciplines by including some acting exercises and improv training in the program as well.

The question is: would a dozen Houston lawyers be willing to pay $300+ apiece for one long day dedicated to better voir dire?


0 responses to “Teaching Jury Selection”

  1. Although this is my first comment, I’ve been an almost-daily reader since I learned about “Defending People” from DC-area attorney Jon Katz’ “Underdog” blog.

    Thank you for your input on the “What to do about 3L’s” problem! A consensus seems to be building that the only way to get better at “lawyering” is to get out there and do it – to watch other people do it, or to simulate doing it, are the next best options. If you’ve got any further suggestions or resources for the not-yet-a-lawyer (or even the not-yet-a-law student – I fall into that category), I’d love to read them!

    I’m intrigued by this “Voir Dire Day,” and I have a few questions about it:
    – Do the mock jurors provide feedback? What parts of their feedback is most useful? What parts should students ignore (or at least, take with a grain of salt)?
    – Before participating, in what skills are students generally strongest/weakest? What areas see the most/least improvement?
    – Do instructors ever advise students in a manner contradictory to the critique of other instructors? Is there a particular item that frequently provokes disagreement?

    Thanks Mark! And keep up the great posts!

  2. Steve,

    Thanks for reading and commenting.

    I don’t know that this has ever been done before in this form (I think of it as “voir dire boot camp”), but I imagine that the feedback from mock jurors would be very important. The feedback that I would seek would be the mock jurors’ explanations of how they felt about what the lawyers did.

    I don’t have any answer to your second bulletpoint.

    I would expect instructors frequently to disagree on their critiques — this is not a science, but an art. I might even discourage critique in favor of advice — if you didn’t like something the student did, suggest a better way to do it. The instructors’ suggestions would be more helpful than critiques would because what works for one lawyer will not necessarily work for another.

  3. Funny how we all spend some time teaching. Truth be told, I think we enjoy it almost as much as trying cases. One of the underlying psychological needs of criminal defense lawyers is to contribute to others, and teaching is another outlet.

    One of your points, Mark, that is worth further discussion is your point:

    The instructors’ suggestions would be more helpful than critiques would because what works for one lawyer will not necessarily work for another.

    Law Profs like to teach right and wrong. While there is a basic right and wrong, once you get past the basics it all becomes a matter of style. We all find our own style, where we are comfortable and credible. I’ve seen guys who blow me away with their manner, but it would never work for me. It is indeed an art, and once a law student gets the basic idea, developing style takes practice and feedback.

    The only problem I foresee is that practicing lawyers like to “show” their way of doing things far too much, so that they do too much talking and urge their “style” on students as if their style is better than someone else’s.

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