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L A W A N D B U S I N E S S

Process of

Elimin ation

By Judith M. Wilson

The woman was out to get the Roman Catholic Church,

and when she was called for jury duty, she thought she’d

found her chance. She made it through the selection

process without being excused and made the cut to

become a member of a jury empaneled to hear a lawsuit against

a Catholic church that had made an error on a gravesite, so

that when a man died, his family couldn’t bury him in the plot

he’d purchased next to the final resting place of his wife, who’d

predeceased him.

“Halfway through the trial, some old guy is trying to get the

judge’s attention,” says Jon Rankin, an attorney whose Tiburon

practice has an emphasis on criminal defense and civil litigation.

“Basically, the judge told him to sit down and shut up.” When

a break came, however, the man took the opportunity to reveal

that his wife, the aforementioned juror, had been involved in a

similar case and was hostile to the Catholic Church. The judge

dismissed her and assigned an alternate juror to take her place.

Lawyers and consultants

develop strategies

to optimize jury selection.

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Elimin ation

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It’s an incident demonstrating the challenges that face attorneys when they’re dealing with jury pools, often with little more to go on than basic demographic information. Rankin calls the woman “a stealth juror” and says it’s difficult to spot people like her. He always asks potential jurors if they’ve experienced a similar situation or have any feelings, negative or positive, toward his client and, in this case, “She seemed fine,” he says. “We only find the ones that we find.

“The ones who get away with it, we don’t know about. I kind of have to take them at face value until we can show otherwise,” he adds, recalling Darrell Hunter’s conviction for killing Ronnie Small in Marin City in 1997. That case was overturned after it came to light that a juror had lied about his contacts in Marin City and was biased. Hunter was retried, and a new jury acquitted him in 2008.

“I’ve done dozens of jury trials,” says Rankin, more than he can remember, and he always questions candidates himself. “I use some common sense things,” he says. Among his strategies, he looks at facial expressions and observes whether a potential juror is looking at a client, perhaps making eye contact; he’s also found that women are harder on women than men are. His preference is to have men on the jury if a client is a woman, “especially if she’s not half-bad looking.”

While Rankin prefers to do his own interrogation during voir dire, the process in which attorneys question prospective jurors and weed out those they find undesirable, many other attorneys, often those involved in high-stakes, multi-million dollar lawsuits, retain the services of trial consultants, who specialize in assisting the legal team in its quest for juries that will be fair to their clients.

Tara Trask, of Tara Trask and Associates, a firm based in San Francisco and Dallas that takes cases throughout the United States, has been in the trial consulting business for 20 years and says, “Trial consultants used to be a lot more controversial than they are now.” She has a degree in psychology, and her training ground was Courtroom Sciences, Inc., a large trial consulting firm in Texas, which Dr. Phillip McGraw—Dr. Phil—owned.

“Phil was a very successful trial consultant for many years,” she says, adding that he was her mentor. Her firm provides lawyers with assistance in litigation strategy, jury research and trial consulting, and she works with legal teams on complex commercial litigation, such as intellectual property cases, antitrust cases, securities cases and breach of contract disputes; her firm also handles products liability cases, insurance cases and oil and gas cases for plaintiffs and defendants. Among her successes is a high-profile case in which the Texas Beef Group sued Oprah Winfrey for defamation of its product after comments about Mad Cow disease and its relationship to beef aired on her television show.

Voir dire vettingTrask sat through seven trials last year, which, she observes, is more courtroom time than some lawyers log over several years. On jury selection, she says, “It’s not selection; it’s deselection,” explaining that rather than choosing people, lawyers eliminate the ones who have negative opinions that could affect the outcome of a case. In fact, she gives very little consideration to the jurors she wants. In the kind of cases she handles, both sides have very skilled lawyers and consultants and, as a result, “My favorite jurors are probably going to be struck by the other side,” she says. Her focus, therefore, is

on eliminating the ones whose opinions might be detrimental to her client.

When she sees a panel coming into the courtroom, her observation skills come into play. She sees clothes, the way people carry themselves and what they’re holding in their hands. “I’m just taking in the whole picture,” she says, and she also notes details—how they walk, stand and talk. She adds, however, that just reading body language can steer one the wrong way.

Other than demographic information, the legal team usually knows very little about jurors ahead of time. On rare occasions, Trask gets to distribute questionnaires to the jury pool as much as six weeks beforehand, but that’s rare. “The norm is, we don’t have anything other than the basic information on a jury card,” she says. Thus, the best opportunity for the legal team to learn about jurors is during voir dire. “It’s a time to ask questions,” she says, explaining that the legal team needs to find out about the jurors and their view of the world. She observes, however, that it goes against the grain for lawyers, because they’ve learned not to ask questions if they don’t know the answers, so it’s a process that is often counterintuitive for them. Well-crafted questions are essential, however, because the responses reveal things about an individual. “They tell me a lot about who

John Rankin with his son, Jaden Philip, age 8, and the Great White Whale, John’s 1958 Cadillac

[Duncan Garrett Photography]

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somebody is,” she says.Voir dire can also work to an attorney’s advantage in other

ways, and Trask gives the example of Robert Eglet, a Las Vegas attorney particularly adept at getting jurors on his side. “He really listens to them. He maintains constant, attentive eye contact when a juror is talking to him. People appreciate that,” she says. In addition, if a potential juror demonstrates a bias that favors his client, he’ll point out that it’s not fair to the other side, so the panel knows he wants an impartial jury and is inclined to view him favorably.

In the shadowsTo prepare for a trial, Trask finds that what’s most important is doing homework to get a sense of what people think about a case, and one of the strategies she employs is a pretrial research in the form of focus groups and mock trials. During trial, Trask also uses shadow juries, for which she and her team recruit four to six mock jurors. “They actually sit in the courtroom during a trial,” she says. They’re matched demographically to the actual jurors and, at the end of each day, the consultant interviews them and gives a report to the lawyers. “A lot of lawyers think they can be a distraction,” she says, but she believes they can provide useful information. “Of all the tools we use, it’s one of my favorites,” she says. They don’t deliberate, because it’s not possible to replicate the chemistry and personalities of the real jury, but sometimes the mock jurors give their opinions or individually fill out a verdict form. “I’ve never had a shadow jury go 180 degrees from a real jury,” she says.

In doing pretrial research, Trask sometimes conducts a mock trial as well. She explains that it helps to understand the strengths and liabilities of a case, because demographics and attitudes come into play, and she finds out whom the mock jurors like and dislike, providing guidance for the attorneys. “Any information helps,” she says, pointing out that consultants provide a service for lawyers and help them do their

jobs better. “It’s an art and science combined,” she says. “I don’t think we make the playing field unlevel. We’re just part of the legal team.”

Despite extensive preparation and research, the outcome is sometimes surprising. Trask describes a medical malpractice case against a hospital and a doctor, who had crushed a baby’s skull with

Inexplicable

Juries can be unpredictable. Jon Rankin once had a

domestic violence case in Santa Rosa, in which the

defendant was charged with spousal abuse and

pulling the phone line out of the wall so the victim couldn’t

call the police, which is illegal. The victim didn’t show up in

court, and the jury acquitted the man of spousal abuse. ”The

jury also dismissed the second charge because they decided

the phone line was on the pole outside and the cord inside

the apartment didn’t count. There’s nothing you can do

about that. Once they’ve decided, that’s that—even if there’s

jury misconduct,” says Rankin.

In another surprise outcome, “I had a shooting case,

where my client shot a guy with a .22 rifle. They acquitted

my guy of shooting him,” he says. Curious, after the trial,

he followed some of the jurors, including the foreman, into

the elevator and asked if they had anything to say, but they

declined. “We never knew why they did that,” he says. He

suspects, however, that they broke the rules and did some

research on the Internet, discovering that the defendant

would go to prison for 15 years if convicted. He describes

the victim as “a jerk” and speculates the jury thought the

punishment was too harsh under the circumstances. The

judge, on the other hand, thought Rankin had presented a

great defense. Rankin says he told the judge, “I’ll go with

your explanation.”

In one of Rankin’s most memorable cases, he represented

a Latina woman who was arrested for driving under the

influence of alcohol while wearing a cowgirl suit after

a Halloween party in Corte Madera. “We do the trial;

everything’s wonderful,” he recalls. After the jurors had been

deliberating for some time, they sent out some notes asking

questions, which is normal. But then they reported they were

deadlocked and asked more questions. While the attorneys

were figuring out how to respond, the jury sent word that

they’d reached a decision.

The foreman, whom Rankin describes as “a righteous

dude,” handed the signed jury forms to the bailiff, but one

was missing, and he claimed he’d signed the wrong form,

and it was scrunched up in his pocket. The bailiff insisted

that he turn it over anyway. The verdict was not guilty, but it

was the prosecutor’s first trial, and when the judge asked if

he’d like to have the jury polled, he answered affirmatively.

“They started saying, ‘No, we were deadlocked,’” says

Rankin, and the judge sent them out of the room. He says

the jurors were involved in a really healthy dissension, but

adds, “To say there’s a verdict, when there’s not, that’s never

happened.”

The judge let it go, and his client got a dismissal, but

the situation was unprecedented. “That is my weirdest jury

story,” says Rankin.Trial consultant Tara Trask

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forceps during delivery, killing the baby. The shadow jury suggested a modest plaintiff outcome, but her client, the child’s mother, lost. “It was weird,” says Trask, adding that instinct told her something was wrong. Later, someone reported hearing a juror pontificating about how he’d steamrollered everyone else on the jury, revealing a clear case of juror misconduct. The verdict was set aside, and rather than go through another trial, the defendants settled out of court.

Most of the time, jurors are honest. Rankin gives the example of a “witness juror,” who was hearing a case against three men accused of assaulting another man with a baseball bat, causing injuries that sent him to the hospital. The defendants were on trial together, with one jury, and the jurors claimed they didn’t know the men. Once the trial began, however, a juror who was a member of the hospital medical staff realized that he’d seen the victim at the hospital and reported the conflict so an alternate could replace him. He was later called as a witness at the trial.

After a trial, it’s up to the judge to decide whether or not the jurors can speak to a consultant and, “Sometimes we talk to them and have an idea of what happened in the jury room,” Trask says. She finds that jurors usually work hard and take their responsibility very seriously. “I’m a great believer in the jury system. The jurors get it right most of the time,” she says.

It’s a reassuring thought. A neutral, independent jury is a time-honored element of the legal system in a democratic society, occupying a place between government and the accused to ensure a fair outcome. With diligence, integrity and respect for the truth as part of the mix, it’s likely to continue. u

Jury JargonAlternates Alternates are individuals from the jury pool who aren’t

official jurors, but sit in the courtroom and listen to testimony.

If a juror has to withdraw–in the case of illness, for example–

an alternate will step in to fill the vacancy.

Challenge for cause argument A lawyer who believes a potential juror is biased can ask the

judge to dismiss the juror for cause. Circumstances justifying

such an action might be a personal relationship with a

defendant in a criminal trial or a connection with a company

involved in a civil case. Whether or not to dismiss an individual

is at the discretion of the judge.

JuryA jury is composed of 12 citizens who hear testimony in a trial

and deliberate to determine the outcome. A judge delivers

a pre-jury admonishment that instructs potential jurors to

abide by the rules pertaining to them and answer questions

truthfully. Once they become members of a jury, they must

keep open minds and refrain from conducting their own

investigation or discussing the case with anyone relating to it.

Jury deliberation After a trial, jurors deliberate to reach a verdict. In a criminal

case, the decision must be unanimous. In a civil trial, the

judge will tell the jurors how many of them must agree to

reach a verdict.

Jury selectionThe period at the beginning of a trial in which attorneys

question potential jurors and dismiss those they believe are

unsuitable. It’s a misnomer, because lawyers eliminate the

jurors they don’t want, rather than choose the ones they do.

Peremptory challengesEach lawyer has a certain number of peremptory challenges,

which let him or her dismiss jurors without cause or having to

give a reason.

Venire The entire jury pool or group of citizens called to appear for

jury duty is called the venire. Court officials compile lists of

prospective jurors from drivers’ licenses, state identification

records and voters’ registration lists.

Voir direDerived from old French, this means to tell the truth and

refers to the process in which attorneys pose oral questions

to potential jurors to gain information and evaluate their

responses as they seek to seat a fair and impartial jury.

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