Jury Selection - Time Constraints and Weaknesses in Cases

New York Personal Injury Trials, Jury Selection: Time Constraints and Weaknesses in Cases

New York Law Journal, Wednesday, August 29, 2007 Ben B. Rubinowitz and Evan Torgan

To properly prepare for and conduct jury selection, a trial lawyer must know how to deal with two important issues: time constraints and weaknesses in his case. Although these issues might seem to be separate and distinct, in reality, they go hand in hand. Since courts have decided to limit the amount of time allotted to each attorney for jury selection, careful thought must be given as to how to best make use of the time allowed.

On the day you first met your client and heard his story, you probably made an initial determination regarding the strengths and weaknesses of the case. Your initial 'gut' reaction to the case is crucial to your preparation for jury selection. It was at that moment in time that you were closest to seeing the case the way the jury might see it. At that point in time, you were less of an advocate than you are at the moment you step into the courtroom. Clearly, after forming that initial impression or 'gut' reaction, you have spent countless hours focusing on the strengths of your case and dealing with its weaknesses. You probably have already argued about the merits of the case during settlement discussions.

The problem, as it relates to jury selection, is that you are an advocate and your tunnel vision might prevent you from dealing with those dicey issues that will be at the forefront of the jurors minds.

Identify the Problem Areas

One of the best ways to deal with difficult issues is to make a written list of the potential problem areas which you perceive at the time you first get the case. Go back to that list -- back to your initial 'gut' reaction and see if it still applies.

Rather than asking lawyers in your office what they think, speak with the types of people who might be on the jury panel. Speak with everyone you can from lawyers outside your firm to teachers, kids and people in the community in which you are about to try the case. [FN1] Lay out the facts as objectively as possible. Ask purely open-ended questions designed to get them to talk. Leading questions, or questions that suggest the answer or limit the universe of potential answers, do little to help you in this regard.

Consider the following questions, asked in leading form:

Q: You don't think that's such a bad problem, do you? or

Q: Don't you agree I can overcome that problem?

Obviously, the 'yes' or 'no' response you receive to these questions does little to assist your jury selection.

The better approach is to ask questions like these:

Q: What do you think of the case?

Q: What do you see as the weakness in the case?

Q: Why do you think I might lose this case?

The answers to these questions may provide valuable insight and should be used by you to reaffirm your initial 'gut' reaction and devise ways to address these problems with the jury.

Once you have your list of weaknesses, you must be mindful of the time constraints imposed by the court. Here, you must prioritize your weaknesses and deal with those that you can in the limited amount of time permitted by the court. You must decide how you want the jurors to perceive the weaknesses. If possible, try to turn a weakness into a strength. If that is not possible, you still must address the issue both to maintain your credibility and begin to desensitize the jury to this particular problem.

The worst thing you can do, however, is to ignore the problem and hope it goes away. It will not. This do-nothing tactic will permit your adversary to destroy your credibility by making a short, simple statement at a strategic point in time:

What counsel failed to tell you is that his client is and has been a drug addict for the last 20 years.

Needless to say, you might never recover from the irreparable harm done by your failure to address the difficult issue.

The Technique

The 'confessional approach' [FN2] to jury selection allows you to meet the tough issues head-on. At times, it even allows you to turn a perceived weakness into a strength. To successfully master this technique, you must be willing to bring out the 'bad' facts as soon as possible, thereby confessing your weakness.

Imagine the scenario in which your client in a medical negligence case was a drug addict for the last 20 years before his death. Your position, however, is that his death was caused by certain failures on the part of the treating physician in administering medications, not by the use of illicit drugs.

Here, the appropriate trial technique, based on the confessional approach, might be to make a statement followed by a series of both leading and open-ended questions. It is important that you address your weakness first, presenting your side of the issue, before allowing your adversary to bring it up in the fashion which he chooses:

Ladies and Gentlemen, I'll tell you right now: Mr. Smith used and abused drugs for more than 15 years. In fact, he used and abused drugs for close to 20 years. We want you to know that fact right away because we know that you might have a strong reaction to that issue. But we also want you to know that there were no secrets about his drug use. He fully informed his doctors. They knew this. Our position is that he never should have been given certain medications by his doctor in light of his known drug use. Our position is that the doctor was careless and negligent in administering this medication and that this departure from accepted practice resulted in his death.

Now, address the tough issue head on and find out the jurors' true feelings. Explore your fears and concerns based on your own 'gut' reactions to the case. Use both leading and open-ended questions to flesh out the issue.

Q: Are you willing to listen to a case like this knowing it involves a person who used and abused drugs?

Q: How do you feel about that?

Q: Are you open to the possibility that a person who used and abused drugs might not be responsible for his own death?

Q: Why is that?

Even if you cannot put a positive spin on a bad fact, you still must address the issue. Rather than calling a bad fact a 'weakness,' suggesting you have a weak case, refer to it as a concern of yours. This way you maintain your credibility by letting jurors know that you are not holding back and can be trusted as a forthright, honest advocate:

Ladies and Gentlemen, I'll tell you right now our client is an alcoholic.

He was drunk at the time of the accident. Our position is that he did not cause the accident and was injured through no fault of his own. We want you to know that fact before we do anything else in this trial.

Q: Are you the kind of person who is going to say: I'm not interested in anything else you have to say -- I've made up my mind -- or are you the kind of person who wants to know more?

If the juror has already made up his mind, you might be able to have the juror excused for cause, or at worst, excuse him by use of a peremptory challenge. On the other hand, if the juror wants to know more, follow up the last question with one that can be used on summation. As the next question try:

Q: Why do you want to know more? or

Q: Tell us exactly why you need more information.

Often, a weakness might not jump out at you like the illustrations above. At times, the weakness in the case might present as a much more delicate and sensitive issue. Consider, for example, a subtle yet potentially powerful issue involving racial prejudice. While your case might be strong on both liability and damage issues if viewed in a prejudice-free vacuum, the world does not work that way. Your initial 'gut' reaction involving racial concerns might be something you need to address during selection.

Assume, for example, you represent an African-American. You know the makeup of the jury pool in the county in which the case will be tried is anything but African-American. Your fear is that the jury will award less of a damage award based solely on race.

Here, you do not want to address the issue head-on for fear of receiving a dishonest answer:

Q: Are you prejudiced against African-Americans?

Needless to say, it is a stretch to ask individual jurors to admit to bigotry in front of a large group of people. Simply put, it is not going to happen.

The better approach is to ask questions designed to alert jurors to your concerns without seeking to embarrass them in front of others:

Q: When evaluating a person's pain and suffering, would it matter to you if the injured person was rich or poor?

Q: Donald Trump or a homeless person?

Q: Would it matter to you if the injured person was a doctor or a janitor who was injured and you had to evaluate their pain and suffering?

Q: Would it matter to you if my client was black or white?

Q: Why not?

Another, more straight-forward approach might be:

Q: Do you feel that race should be considered when placing a value on a person's injuries?

Q: How do you feel about that?

Often, a summary-type question can deal with the issue effectively:

Q: Do you believe that a person should be entitled to a fair shake, regardless of race, religion, creed or color?

Q: Why?

While you may never know if a potential juror has a hidden agenda or truly is a racist by forcing a juror to answer the 'why' question in his own words, you will be afforded the opportunity to evaluate the honesty of the answer based on your own common sense and good judgment. The juror's demeanor, ability to maintain eye contact and content of the response might speak volumes on this issue.


Since courts have severely limited our ability to conduct a lengthy jury selection, care must be taken to address the most significant issues with the jurors. Often, you are better off dealing with your fears and concerns while saving your strengths for the trial in chief.

FN1. Lisa Blue & Robert B. Hirshhorn, 'Blue's Guide to Jury Selection §24 ' (2004 West).

FN2. Patrick L. McCloskey & Ronald L. Schoenberg, 'Criminal Law Deskbook §14' (1984 Matthew Bender).

Ben B. Rubinowitz, a partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, is an adjunct professor at Hofstra University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an adjunct professor at Cardozo School of Law. Richard Steigman, a partner at Gair Gair Conason, assisted in the preparation of this article.

8/29/2007 NYLJ 3, (col. 1)

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