Sadly, there is no strategy that can ensure selection of the best possible jury for a client. Because so many uncertainties exist, some attorneys may be tempted to accept the first 12 jurors without exercising a single peremptory challenge. On the other hand, other attorneys might exercise peremptory challenges based on intuition or a “hunch.” Here are ten suggestions to help you navigate the tricky area of exercising peremptory challenges.
- Pay attention to what prospective jurors say and do. In addition to how they answer questions on voir dire, discover clues to a prospective juror’s personality and attitudes by observing his or her clothing, manner of walking to the jury box, reading material, and speaking style. You may sense an attitude of sympathy or hostility toward the case, one of the parties, or attorneys.
- Be cautious before accepting an aggressive, opinionated juror. Such a person may dominate the others, so that a verdict of 12 (or fewer) is not actually obtained. He or she may also antagonize fellow jurors or distract attention from proper deliberation.
- Be cautious of a juror with leadership personality or quality. Such people may unduly influence the other jurors. Of course, if the person with leadership qualities appears to be sympathetic to your side, this may be a very helpful juror!
- Be cautious of a juror with expertise. If a juror has some expertise by virtue of his or her particular knowledge, training, or background in a matter that may be of some importance in the trial (e.g., a chemical engineer in an explosion case, a nurse in a malpractice case, an attorney in any type of case), it may influence his or her decision or may influence those of other jurors.
- Consider whether the juror has interests in common with litigants, key witnesses, or counsel. A juror with common interests should be carefully considered, because it can cut both ways. If a prospective juror identifies with the litigant, witness, or attorney, he or she may be more likely to sympathize with that person. On the other hand, that same juror may believe that he or she has a greater understanding of the facts given the common interest and may substitute that understanding for the evidence.
- Decide whether to use a jury book. Usually the book consists of a separate piece of paper for each prospective juror, which contains information such as the juror’s name, date of birth, address, marital status, a list of all petitions he or she has signed, and a succinct summary of each case the prospective juror has deliberated and how he or she voted. By checking the data, you may conclude that, as compared with the other prospective jurors, a prospective juror is pro-plaintiff or pro-defendant or is inclined toward unusually low or high awards.
- Consider how many challenges are exercised by opposing counsel. When one side exercises few or no challenges, the other side may be strongly tempted to do likewise, even if it is not altogether happy with the panel. Some attorneys believe that a side exercising few or no peremptory challenges may be perceived as having a strong case; whereas the other side, if it continues to exercise peremptory challenges, may be perceived as having to select carefully the right jurors because it is worried about its case. Despite this risk, exercise warranted challenges even if the other side passes.
- Confer with your client. If the opportunity exists, consider conferring with your client away from the jury (e.g., during a recess) to determine whether the client has any strong feelings about any of the prospective jurors. Clients’ reactions are often very useful in deciding whether to exercise a peremptory challenge.
- Consider using a behavioral consultant. You can hire a psychologist, sociologist, or similar expert to evaluate prospective jurors to give you their insight into human behavior to help obtain a favorable jury verdict. Jury consultants are quite expensive, however, and so are generally used only in large civil trials and high-profile, well-financed criminal trials.
- If opposing counsel objects to your challenge of a juror, state your reasons for the challenge. This is important to do regardless of whether the objection is overruled or sustained. Otherwise, the appellate court has no record of why you challenged a certain juror.
For more helpful tips for selecting the best possible jury, go to California Trial Practice: Civil Procedure During Trial, chap 8 (3d ed Cal CEB 1995) and Effective Direct & Cross-Examination, chap 10 (Cal CEB 1986).
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