It goes without saying that a thoughtful and well-planned jury selection is critical to the success of your case. When jurors walk into the room for jury selection, they bring with them years of attitudes and beliefs shaped by, among other things, family, politics and the media. While a trial lawyer may have great confidence in his powers of persuasion to overcome these long held beliefs, the reality is that most jurors, although well intentioned, will evaluate the facts through their life experience. Indeed, many trial lawyers contend that a case can be won or lost during jury selection. They argue that your success in identifying and weeding out those jurors who have a prejudice against your client or his cause will determine the fate of your case. Although trial lawyers have no control over who will be called as a potential juror, the trial lawyer does have the ability and responsibility to identify and, hopefully, remove those jurors who cannot be impartial or those who start off leaning against your case.

Peremptory Challenges

From a procedural point of view, the real goal of jury selection for the trial attorney is to preserve peremptory challenges. In civil cases in New York each side is allowed only three peremptory challenges; however, each side is allowed an unlimited number of challenges for “cause.” The rationale for this is that to the extent a juror admits that he or she cannot be fair, the court is duty bound to exclude that juror. The exclusion of a juror for cause is generally left to the sound discretion of the trial court and not reversible. As the Court of Appeals has made clear, “the 'worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror'.” See People v. Johnson, 94 N.Y.2d 600 (2000). To the extent the trial lawyer can turn what would otherwise be a peremptory challenge into a challenge for “cause,” he has significantly increased the odds of getting a more favorable jury and one that will return a more favorable verdict. The techniques used in questioning the potential juror, exposing bias or prejudice, and turning a peremptory challenge into a challenge for cause is the real “art” of jury selection.

Given the time constraints in which jury selection must be conducted, jury selection must begin with a fundamental question before the attorney ever steps foot in the courthouse: What are my greatest fears? Or, put another way: Who can I not live with on my jury? While not all issues can be addressed during jury selection, those that are appropriate for inquiry should be dealt with head-on.

Questioning Jurors

Once the trial lawyer has created a list of her most troubling concerns and fears, careful consideration must be given to the manner in which those issues are dealt with during jury selection. To the extent the lawyer asks only leading questions, she will never discover the juror's true feelings. Conversely, to the extent a lawyer asks only open-ended questions, she may not be able to secure much needed assurances from the prospective juror(s). Careful use of both leading and open-ended questions can pave the way for insightful answers and, ultimately, confirm the prejudice of a juror for a “cause” challenge thereby preserving a peremptory challenge.

Consider, for example, a case in which the plaintiff, a 35-year-old married man, was injured at a construction site when he fell from a scaffold, injuring his elbow and hip. Although liability has been challenged, the real issue in the case is the nature and extent of the injuries sustained. While this might seem like a typical Labor Law §240 case, it is not. The plaintiff, Mohammed Hallan, is a Muslim immigrant from India with a heavy accent and his wife, Yolanda, is an immigrant from Mexico. Given today's highly polarized political climate with respect to immigration, the trial lawyer has a choice: He can ignore the “immigrant” issue altogether, or he can address the issue head-on during jury selection and work to determine whether any bias or prejudice exists that might affect the outcome of the case. To the extent the trial lawyer puts his head in the sand and ignores the “immigrant” issue altogether, he has left to chance an issue that cries out for discussion. He has further squandered an opportunity to learn about the jurors' attitudes on a thorny issue and potentially wasted an opportunity to turn what would be a peremptory challenge into a challenge for cause. It is the lawyer who has taken the time to prepare and create a well thought out set of questions designed to gather information, expose and confirm bias that will be in the best position to preserve peremptory challenges by turning them into challenges for “cause.”

No Easy Outs

Obviously, in the scenario outlined above, the concern and fear is that a juror may be prejudiced or biased against immigrants, Muslims or Mexicans. One of the worst approaches a trial lawyer could take when dealing with this potential problem area is to inquire about the issue and then offer an easy out for the potential juror: