EP 522- Jury Selection Part One

Episode Notes

Transcript

Announcer:

Welcome to The. Jury. is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm Tim Cronin personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth.

Erich Vieth:

Welcome to another episode of The Jury is Out. I’m Erich Vieth and I’m here with Pat McPhail, who is a trial attorney with the Simon Law Firm. Welcome Pat.

Pat McPhail:

Thank you for having me.

Erich Vieth:

We’re here to talk about jury selection and you’ve given a lot of thought to that and we thought it’d be good to share your viewpoints with our listeners. Oh, why don’t we start with the essential goal of jury selection? What is it?

Pat McPhail:

Yeah, from our point of view, especially as plaintiffs, you got to find the folks that you’re never going to be able to convince that you’re right. We use the bad word bias, but biased jurors are just a fact of life. You find the right way to talk to people about issues in your case that you think are going to be those big problem issues for you, and that’s what we mean by bias. We don’t mean bad people or anything like that, just biased jurors. What the whole point is to find those bias jurors

Erich Vieth:

So you don’t tell those jurors that you’re bad people and we’re going to get rid of you.

Pat McPhail:

I try not to. That usually doesn’t endear you to the jury very well.

Erich Vieth:

So maybe that’d be a good point to, if I’m a juror, I’m going to think, oh, they’re trying to find people to kick off and for some reason or another, how do you explain it to the juror? Maybe just give us a little bit of how you say it so that they don’t think maybe wrongly, that it’s a threatening thing for them or they’re being judged in an unfair way or whatever.

Pat McPhail:

Well, you always try to use myself as an example and really easy example is the St. Louis Rams, right? So I am from St. Louis, been in this area, I’ve been a sports fan my whole life, and the Rams left us, and so if I was in the juror’s positions across theBar from me and it’s a case involving the Rams, it’s just one that’s not going to be right for me because there’s no way that I’m going to be able to give the Rams a fair fight. I just can’t get that out of my head. They left us and doesn’t make me a bad person, just makes me not right for that particular case. That’s a good example of what we try to do in actual jury selection is just to humanize it, make people realize that we’re not trying to pick on anybody. We don’t think that someone’s a bad person. They just have a point of view just like everybody else and certain points of view aren’t good for every case.

Erich Vieth:

So the easy way someone might think to do that is just to have everybody raise their hand if they’re not fair. Raise your hand if you’re not able to be fair. And what’s wrong with that?

Pat McPhail:

What’s wrong with that is, well, nobody wants to say they’re not fair number one, but also these are people that just, they got brought in, they have to do this jury selection, jury service. We call it service for a reason. It’s not something that people generally want to be called in for, so they’re not going to just volunteer anything upfront, especially not something that nobody wants to volunteer. I’m biased, I’m not fair. I can’t be fair in this case. That’s not something that normally you want to want to volunteer to people. Think about it like a regular conversation. You meet somebody out on the street somewhere, how easy is it going to be to be like, oh, hey, you want to tell me you’re biased about something? It’s even harder in jury selection so you don’t go straight to hey, who’s not fair.

Erich Vieth:

Maybe I should have started with a little bit of your background. Do you want to give us a thumbnail of who you are and how long you’ve been at this Simon, Law Firm?

Pat McPhail:

Sure. I mean, I don’t know Country boy, I grew up in Jefferson County, so whenever I say I’m from St. Louis, it’s the St. Louis area. So the where’d you go to high school question doesn’t necessarily apply to me as hard, but it’s kind of a good answer because I went to four different high schools as a kid, kind of grew up bouncing around, but all generally in the same area in here, like I said, south of here in Jeffco went to law school. I was kind of at a point in my life where I didn’t really know what I wanted to do. So the typical stuff, why’d you go to law school? Oh, to be an advocate, always thought of myself as a litigator. That doesn’t really apply to me, just kind of found my way. A different way to put it is, well, I wasn’t ready for the real world yet, so I decided to go to law school, but that’s my background up to school and lucked into where I’m at now. Really started out with John as a LawClerk here, knowing that that’s not really a path to employment after school, but that it’s really good experience as a LawClerk and just happened to be that John needed an attorney on staff at the time I was clerking and I’d done a good enough job that he felt it was a good idea to hire me and rest is kind of history.

Erich Vieth:

Maybe it bears noting that for those who might not know much about the Simon, Law, Firm and I worked here for 10 years before you arrived, everybody here is a trial lawyer. That’s true. So how many lawyers do you have right now?

Pat McPhail:

Oh man, what are we up to? 14. We kind of hover around that level and we’ve built a real good foundation of more experienced attorneys teaching the next sort of generation and everybody gets experience. I started out trying cases my first week out of getting my license and have been trying cases ever since. It’s really the way that John does things is sink or swim. So if you can’t be in front of a jury and hack it, it’s not going to be the right place for you, but you got to get the experience sometime and it’s no better place than here.

Erich Vieth:

And there’s a lot of firms that will have a lot of attorneys who don’t do much or any trial work and they might have the trial department, the trial law department here. It’s everybody. And so your experience over your time here is been only with trial lawyers and I know how it is that every time you see someone in a hall, you’re talking essentially trial law. So this is a good place to be for learning that kind of thing.

Pat McPhail:

Yeah, it’s a crucible, right? I mean we’re in competition with each other in a certain sense. You get to be very close with all of your coworkers and all of your litigators, but everybody goes to put up the next big number to prove that you’re the best or that’s our mentality is I guess as a firm is we are all working towards the same goal, but we push each other.

Erich Vieth:

I’m going to throw some real basic stuff at you about how bad is it if you don’t do a thorough dire, what does that do to the entire process?

Pat McPhail:

Well, you’re rolling the dice essentially. You’re just hoping that everything’s going to work out and that’s not a recipe for success. When you have the burden of proof, our side in particular, it is so important to find, it’s not a jury that is going to be bias in your favor. That’s not something that you’re able to find. Typically as a plaintiff, you are looking to find people that are just at least open to the possibility of listening to you and having a verdict for you at the end. And that takes actual work during jury selection to make sure that your panel debt gets whittled down to people that have an open mind. If you don’t, you’re rolling the dice and the odds are not in your favor. Just generally, people are not inclined to give plaintiffs money to give strangers money. That’s not something that people are inclined to do. And so there’s a whole process that you have to go through and as a lawyer who’s going to be asking them for money at the end of the case, developing the rapport during jury selection is really the best time that you can do it. That’s the only time in the case you actually get to have a conversation with people, including the people that are going to be on the jury at the end. And if you miss that opportunity, you’ve missed your best opportunity to develop your own credibility, which is just essential from ourselves.

Erich Vieth:

So the people won’t raise their hand and say that they’re fair or unfair. So let’s get into the weeds. How do you identify the people that are not good fits on a particular case?

Pat McPhail:

Yeah, so there’s kind of a few ways to do it, but there’s no right way to do it. The best way to explain it is you hear people say all the time, be yourself. Well, that’s not really helpful advice, especially to younger attorneys and I learned that the way everybody else learns things the hard way, you go and do your first jury selection and you cannot wait to sit down and you’re not comfortable up there. That being yourself thing, it goes right out of your head. You have no idea what that even means until you’ve done this several times. So whenever you hear be yourself, the idea is just to be genuine, not necessarily put on any sort of show or to try to play to your strengths. Just be genuine and that’s harder than it sounds. A lot of people struggle to be genuine in everyday life, so being genuine with other people is the most important thing because that’s what you are asking the people to do.

So that’s the first step is to just be genuine. If people are quiet, you got to do the hardest thing and that is call ’em out. Juror number seven, I haven’t heard from you today. You’ve been hearing all this stuff about the law, about some issues in the case. What are your thoughts? Put ’em on the spot a little bit. I do it in a way that I think is not too intrusive. People that are quiet don’t really like being called out anyway, so it’s delicate, but you got to get in there. The worst thing that you can do is have somebody that’s sitting on the panel hasn’t talked. Those people show up and they’re the only ones that end up being on the jury because they haven’t talked and they haven’t been kicked off for cause or for a peremptory strike because somebody didn’t like ’em. So getting people talking, sometimes you just have to ask ’em questions. So an individual question in my experience is to try to ask them something that’s easy. Give ’em a softball that warms ’em up. Tell me about your job. What do you do on a day-to-day basis. That is something where they know the answer already, it’s not

Erich Vieth:

Quiz. Hopefully they know that.

Pat McPhail:

Yeah, I mean they’re going to be nervous if they’re so nervous that they haven’t even volunteered by show of hands or something and just give ’em a softball, get ’em kind of loosened up. You learned a lot about people by just getting a description from themselves. One other thing that I think is important to do, and it’s really funny, I picked this up from Tim Cronin, he will like this, he probably picked it up from John. That’s a lot of our vo dire and most of what we do has happened. It’s kind of getting molded over time, but we pick it up from others. But Tim likes to ask people right off of the beginning to just raise hands. Number one, who’s done this before? Okay, show of hands, everybody that’s done this before, half the panel raises their hand. Number two, who hasn’t done this before? This is their first time in jury selection. Other half raises their hands and then third, who didn’t raise their hand to either question. It’s a good icebreaker. It gets people giggling at the beginning and it gives you an example to show what the most important thing is in the case and that is or in the jury selection and then that is participation. Getting people to actually participate is the most important part and it’s a icebreaker that’s nice to be able to

Erich Vieth:

Use. So what’s your gut feeling on the extent to which people are willing to be forthcoming? Not to necessarily tell you what they think you want to hear, but actually tell you what they’re really thinking about the questions you might ask about the case or the process.

Pat McPhail:

I think if you are doing a good enough job to be, like I said, genuine in your own examination, your questions, I certainly tend to think people will tell you and they do their best. And so sometimes you think you’ve got somebody that really is going to lean against you on either an issue or in general in the case and they struggle to give you the words, the magic words that you need. This case might not be right for me or this one side’s starting out a little bit ahead, however you might phrase it. But I do think that a lot of times they’re struggling with giving you what exactly you’re asking for because they don’t know themselves. And so it’s not that they’re trying to hide things or they’re not wanting to be upfront with you about their bias, it’s just that they don’t really know.

And so I do think that overall you can get people to tell you how they really feel about things. You just have to make them feel comfortable in doing it and it’s an uncomfortable situation, a whole room of strangers and you got to raise your hand and tell people how you really feel about some issue that you never even really thought about before. But getting them to realize, well, I’m really lean towards this side on it. It’s tough. I really think that the best thing you can do is just make people feel comfortable, whether it’s like I said, that icebreakers something that works good for you, tell ’em the truth about yourself is one thing I like to do right at the beginning is John always asks people for their permission to speak to ’em and I tend put a little bit of a different twist on it as far as their permission because whenever I ask that, I ask, okay, well public speaking is what we’re going to be asking you to do here and that is a nightmare sentence to hear for most people, the public opinion polling shows the number one fear even ahead of death is public speaking.

And I just tell people straight up, I don’t like public speaking myself. That’s not me personally. I’m kind of a introvert and not really somebody who you would think necessarily is great at public speaking. I’m not. And I just tell people that right up front and I don’t do it for people’s sympathy. I do it so that people understand that I’m not any really different than anybody else.

Erich Vieth:

I’ve got the same thing. John refers to himself as an introvert also, it’s interesting, a lot of introverts get up and talk and a lot of actors are introverts. They claim they’re very introverted or are stage fright is crushing for a lot of well-polished performers who backstage, they’re nauseated until they get out there. I know this might be a little bit of a detour, but I find that once you get past the first couple of sentences, those jitters kind of go away. Now you’re in it and I’m guessing I think it’s an advantage to have gone through that. I still sometimes go through that and I sometimes think, well, I want to kind of write out the first sentence just to get me into the thing. But I think it’s an advantage to have this, have gone through this where public speaking is not natural and you have to rev yourself up and there’s a movie all that jazz where the character gets in the mirror and goes showtime beginning of every day just to go, I’m going to get out there and do stuff if we experience it. I think it really helps to understand there’s people there who might look. I mean, what does silence mean? What does it mean when someone’s not talking? Someone might think, well, they don’t like my case, they don’t like me. They might just be afraid to talk. They’re just not comfortable in this case.

Pat McPhail:

Couldn’t agree more. And that’s my style, that’s my personality. I think some people, there’s no doubt there are extroverted lawyers that they want to get up there and they’re going to tell you what their side of the case is and not really worry about what other people think as much as us introverted people that don’t want to be, don’t want to be public speaking in the first place. But I think you’re right about there being advantages to the introverted personality because you are a little bit more, you’re just more thoughtful about what other people want to hear. And in a way, we are putting on a show where people want, people want to have this show whenever they think about trial because they’ve seen it on TV and all that good stuff. But if you’re not a natural performer, you have to think about it a little bit more. What are people going to want to hear? How is this going to be presented the best way? And that’s really what we do as trial lawyers.

Erich Vieth:

Let’s talk about the time, the duration of verre. You’ve been around for seven years here. Yes. And you’ve seen a lot of cases, and these are not your typical case for a lot of lawyers. They’re very high damage, dramatic, catastrophic type injuries or deaths. So these are sometimes involving lots of defendants, sometimes very complex issues about products liability. So I just want to just paint that general picture. But overall in these seven years, is it three hours? Is it a day, is it two days? What have you typically seen in the kinds of cases where you’ve been participating in VOD with this firm?

Pat McPhail:

Yeah, I think it depends a little bit on the case, but the week long case is a pretty standard sort of case that we have a week or two weeks and you can’t really spend more than a day in jury selection overall. And that would be not only your side, all the defendants get to go, you go through picking the jury, which takes time itself and judges are not, they don’t like anybody wasting time in their Courtroom and we should listen to ’em a little bit more as lawyers. I think that brevity is certainly important. I certainly think that, I like to try to limit myself to two to three hours is a typical, I guess jury selection for me. And it’s more than enough time if you’re using it right, as long as you’re not getting caught up in certain issues or getting caught up trying to introduce yourself.

If you’ve been sitting there talking for five minutes straight and you haven’t heard from the jury, that’s five minutes that you’ve lost information because the whole point of jury selection, like I said, is we’re figuring out who’s the biased jurors. You can’t figure that out if you’re the one talking. So two, three hours, I think that’s more than sufficient. And I think most jurors and most judges will be happy that you sit down after the two or three hours and actually wish it might’ve been a little bit shorter. Anybody that wants to go longer than that’s usually just shooting themselves in the foot.

Erich Vieth:

I’m always nervous that whoever’s up there keeping everybody there is probably the person they’re holding it against if it goes too long.

Pat McPhail:

Yeah, there’s ways to kind of prepare people for that though. As the plaintiff, we go first and we have to prepare the jury for what they’re going to cure, not just the jury selection, but throughout the case. Part of what we’re doing is getting people used to terminology and used to just the way things are going to work, the logistics of it. And what I tell people right up front, one of the things where you ask by hand show of hands, who’s going to be holding something against your client or holding something against yourself and that’s taking up the time. So I always tell everybody at the beginning, listen as the plaintiff, we’re the ones with the burden of proof and that means that we have to go first and we’re going to use up more than our fair share of your time today because by the time I sit down, a lot of the questions that maybe the defense lawyers have for you, they have already been asked and gone over so they’re not going to have to go over those questions.

And that being said, I’m going to take up more of your day today and just kind of prepare ’em. And when they’re prepared, I think that they’re not going to hold it against you as much. But also you just ask ’em, is anybody going to feel like I’m going to start off on the wrong foot for you just because of that or you’re going to hold it against me? Or more importantly, my client, everybody’s going to say it’s all fine, but just getting it in their head that, listen, it’s a day long process. I also like to tell ’em, sneak in there. At the end of the day, most of you guys are going to get to go home back to your family. And that also helps just get the idea that this is a one day thing and not a all week thing for most people. And that does help I think just loosen the mood near the beginning.

Erich Vieth:

In my early years I would try cases, jury trials on my own. I’d be the only attorney there and with var dire and I don’t have the greatest memory for that kind of thing, it is like for those who haven’t done this process of picking a jury, it’s like drinking out of a fire hydrant. There is so much going on in that room and a lot of it’s not verbal. And so in the old days, I’ve got a pen and paper and I’m, I drew out the little chart to try to keep track of where everybody was sitting and did my best, but it is really difficult. But I’m wondering, fast forward, you guys probably have a system much more sophisticated and you probably have people helping you out. Tell me what you do Dy, who’s your team and what is everybody doing?

Pat McPhail:

Well, I’ll tell you two things. I have been in that position as well where I’m the only attorney trying cases on my own front to back with no other attorney and it’s manageable except for voir dire. It is really manageable to do a case. I mean, if you’re trying a case on we’re talking three or four days, it’s not going to be multi-week cases, we’re going to pull somebody in to help us. But trying it on your own vore is very important and I think it’s very valuable to have another lawyer there with you. So at the very least, we try to get somebody that’ll help just come in, help take your notes. I don’t take notes up there because it’s so important that you listen and you pay attention to people and their mannerisms and you have a conversation and you’re not sitting there writing down what people are saying.

You don’t have enough time to do that as the person conducting vo dire. And so you have to have somebody that’s sitting there if you’re a sole practitioner and all you got is you and your client at the table, get your client taking notes, get somebody taking notes that can be useful to you after jury selection is done because that’s whenever lawyering kicks back into gear and you have to argue strikes with a judge without having notes. It’s kind of hard to, it’s really hard to do. I go, well, what did juror number seven say on this issue? So my process is pretty simple. I give everybody my outline for dire on my team. So the other lawyer are paralegal, whoever, have them take notes as they see people. It depends on who, if you have enough room in the Courtroom, because sometimes you’re going to be packed in there, you can’t bring in extra people.

So at the very least have the other lawyer has my outline. They’re taking notes. They know what to expect, especially on those questions where you’re asking people to raise hands, that’s so important to have somebody because they’re there writing down the silent, the silent people, jurors number 14, 15, 16, those people are raising hands that has to be written down somewhere. And I’m not the one that’s writing it. I have to have somebody else do that. That’s my system. I work with other people, but usually I’m the one at this point in my career, I’m the one that’s doing the vo ear and I’m having somebody else write notes. Even if I’m working with someone that’s older that I just feel more comfortable conducting the VO ear. And it’s helpful to have the other person taking and arguing the strikes. So usually as a firm, my experience with us is whoever is not taking the VO is not asking the questions.

That’s the person that’s in charge of or arguing strikes. So it’s really helpful I think for younger attorneys to have that experience too, because you start off with watching somebody else do it, watching somebody else try to get people to get to the end goal on, yeah, I’m not right for this jury. And then you have to go and argue it to the judge and if the judge doesn’t agree with you, you remember that and you go on next time and you’re like, okay, well maybe this is something else we could have done to get the judge to be in our favor. What else can you get from that juror? And that goes to learning your judges too, because there’s a great deal of discretion in our line of work and you got to know what the judges need

Erich Vieth:

From you. It’s amazing how much we can keep track of, but also what we can’t. And Voirdire is one of those things where it just gushes and then you’ve got like you’ve already alluded to all the nonverbal stuff, someone frowns at something and you want to note that. Well, how hard is it to actually notice that person when there’s 50 people there?

Pat McPhail:

You might not notice it. You might not be looking at the other side of the gallery. You might not be looking that direction. It’s funny because you learn a lot of information like that from your team, and the good thing about starting first is that you’re always going to have at least your midmorning break something to huddle up and get that information, get that feedback from your folks and try to act on it in enough time to act on it where we’re at a disadvantage because the other side’s going to sit there all day and see all of those cues they’re going to get. The other lawyer gets to look at everybody and get their reactions and get what their testimony is under oath because that is what this is. This is testimony from the jurors and try to work with that. Try to, number one, rehabilitate people, but number two, just figure out more information and follow up on things that maybe you didn’t see

Erich Vieth:

And you got and that frown. You think, well, they didn’t like what I just asked. It may be indigestion, it might be something totally other than what you might think. And so you got to go in there and find out. Let me ask you one more thing about that preparing. I assume that when you’re in a personal injury case, that’s a serious injury. There’s a lot of overlap between other voirdire you did and this one that you’re about to do. Could you talk about to the extent to which you borrow from previous voirdire and tweak it or how do you normally prepare?

Pat McPhail:

Sure. That’s the number one thing. I mean, vo voir dire is very much, it’s a personal thing. It’s you work to what you’re used to and what works for you and you have a skeleton outline. You go through these topics and you generally are going to find that they repeat a lot. If you’ve got a product liability case, you’ve done a product liability, jury selection before, a lot of the things are going to be the same. So you start off with that. I mean, we’ve been working off of material that we’ve had in the past 20 years at the firm and you just build off of it, you build off it, you make your own little tweaks, but I didn’t start my first voir dire with a blank page and just start trying to figure it out like that. You work off somebody else’s work.

I like to use the term you stand on the shoulders of giants. There’s no more of a place that’s more true than here. We all learned to do most of the things that we learned from John, or by way of others, don’t reinvent the wheel, but you do have to put more focus into it than just, well, this is my blank outline. This is what I always do for voir dire, so I’ll just stick to it. Every case it is different and they have those issues. Those are those case specific facts that the can’t get over facts that you have to go through that is very key. You can’t just go through and do the same exact things every time because you’re going to miss the jurors that you need to get off a calls.

Erich Vieth:

Pat, thanks for joining us so far. We’re going to take a pause on this topic and thank you for agreeing to join us for our second episode on Voir Dire.

Pat McPhail:

Thanks. I’m looking forward to it.

Erich Vieth:

Alright, this has been an episode of The Jury is Out. I’M Erich Vieth. We’ll see you next time.

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