Jury Selection: Simple Rule 10: The Marathon Rule


I want to make it clear that I don’t do foolish things like play beer pong or run marathons. But I draw inspiration from the foolish things that other people do. So the next Simple Rule for Better Jury Selection is The Marathon Rule, to wit:

Save something for the end.

There’s the possibility that, while the game is still afoot, the court will try to artificially limit your time. If the judge doesn’t limit your time, when you’re conducting an organic scripted jury selection, you and the jury will at some point all just run out of steam. Endings are difficult to improvise.
In the first situation, a little more than an “out” is called for. Have some lawyerly yes-or-no questions to toss into the mix in case a curmudgeonly judge starts grumbling while you’re engaging the jury with open-ended questions. “Mr. Gonzalez says that he’ll assume that Fred is guilty if Fred doesn’t testify; that reminds me: how many of you have been witnesses in criminal cases?” or “Ms. Berg has told us that she is married to a police officer. How many of you have close relationships with cops?” Those are the kinds of questions that the judge is used to hearing lawyers ask, and they might buy you a little more time to ask questions that will actually do your client some good.

Whether the judge finally decides that the jury has had enough jury selection goodness or you realize that the game is over, it’s good to have an “out”—one final unifying question to ask the entire panel, so that you can sit down on a high note.

This one question should be designed to get all of the potential jurors to agree on some fundamental proposition favorable to your case, and therefore will violate most of these rules. For example, “Can we all agree to wait till all of the evidence is in before deciding this case?” or “Raise your hand if you promise to give Fred a fair shake.”

Think of a question you like better than those, and save something for the end.

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