In Simple Rule 2: The Blind Date Rule, I pointed out that the 60 potential jurors, by the time they reach the courtroom, are no longer strangers to each other; they have formed a group.
When you get up to talk to them, what’s your relationship to the group? You’re an outsider. You are not someone who they are eager to follow. In the best-case scenario, your opposing counsel has gone before you and acted like Big Important Lawyer Man, and the jury is expecting more of the same from you (in the worst-case scenario, your opposing counsel has found a place in the group).
So, Jury Selection Simple Rule 12: The Field Trip Rule is:
Stay with the group!
I know you have places you want to go in voir dire—a story to tell, compelling arguments to make, information to discover. But you’ve got to go there with the group.
You will find friends on the jury panel—characters who seem simpático and bright, and understand what you’re trying to get at. You can’t go off and chat with these friends; if you do, you’re not staying with the group. Your friends are the first people the other side is going to strike, and if you’ve spent all your time chatting with the people with whom you’re most comfortable, you’ll be left with twelve jurors with whom you haven’t talked. (Again, jury selection is not about being comfortable.)
Like people, groups have personality and character. They also have rhythm. If you are talking with Mr. Jones about guns and Mr. Jones is done with the topic, it doesn’t mean that you are because the rest of the group might not be. You have some authority, because of the situation, to choose what the group talks about, but staying with the group means making sure the group is ready for you to move on to the next topic, and knowing when the group is ready for you to quit.
As you observe the group (from the moment they enter the courtroom), you’ll start to see some of the group’s internal divisions and relationships. Ms. Gonzalez and Mr. Moncriffe definitely get along, but Ms. Gonzalez does not care for Ms. Gupta. Mr. Stanley has strong definite feelings about drugs; Ms. Anderson rolls her eyes at him. And so forth. The twelve jurors that wind up in the box are going to form their own group, and its dynamics are going to be based on the dynamics of the larger group.
It’s all about the group. Stay with the group.