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The Advantage Blog

  • Theodore O. Prosise Ph.D.


Updated: Jul 14, 2023

As college football enters the grueling month of November and the professionals advance in their campaign for division championships, I have been watching as many games as I can between stints of in-court jury selection. Recently, I noticed a parallel: Both football games and jury selection have to do with the benefits of patience. Some of the best rushes by running backs rely on patience as they wait for the blocks to develop. Lost opportunities come when the running back speeds forward into the arms of his foes, while his fellow, often larger, teammates hoof it in his wake. These would-be blockers are left to extend an assisting arm to the running back, pulling them off the ground. I see the same type of thing in voir dire, over and over: A rush to a “conclusionary” question, resulting in a less than favorable outcome, when a calm and patient approach could result in considerably more yardage in the effort to achieve the best possible jury to hear the case.

Establishing effective cause rationale as well as effective rehabilitation advocacy depends upon a methodical and patient step-by-step process, and appropriate judgments about when to halt questioning to make a case. Here is where we return to the parallel of the grid iron and the role of patience: Let one block do its job; let one question do its job. Wait for the next block to remove another obstacle, or ask another question to further lay the foundation. Wait cautiously and observe as another assisting effort primes you to spring forward toward the first down marker, observe and ask a final question that solidifies the needed support for your cause or rehabilitation argument.

Instead, this is what I have been seeing. Attorneys rush into a cause challenge without waiting to develop the effective support that would more likely secure the critical goal. Often, a cause challenge is made without laying appropriate groundwork and foundation. This presents an opportunity. But one missed if the attorney rushes too quickly toward a “conclusionary” question of rehabilitation.

Be careful of “could you set that feeling aside” questions. Asking jurors if they can set “those feelings aside” without appropriate content risks a panel member saying, “Could I? Maybe, I don’t know.” Or “I don’t think so,” “I’m, not sure,” and “I could try.” Such conclusionary questions, if used at all, need to be framed in the context of the early methodical questionings. These final questions can be set up with leading questions directed at making the record clear that the potential juror will be motivated by the right things, and not prejudice or bias.

Consider the following:

  • “You said you would listen to the evidence and the witnesses in this court, correct?”

  • “You said you would follow the law as the judge instructs you, correct?”

  • “You said you would listen and consider the points of view of your fellow jurors in deliberation, true?”

  • “Even though you have some general feelings, they are not specific to this defendant/plaintiff, correct?”

The key is will they listen to the evidence, follow the law, and consider with open minds the perspectives of their fellow jurors. At the very least, you’re setting the potential jurors up for the most effective rehabilitator in the room – the judge.

A metaphor many attorneys like to use when attempting to establish a cause challenge is that of a race: “If this were a race, would my client be starting a little behind in your mind?” It’s a reasonable question to ask, but one that can be dealt with in rehabilitation efforts. Don’t buy into the figurative metaphor, but instead focus on the literal reality:

  • “You realize this is not a race, right?”

  • “This is a court where evidence will be presented and the law will be provided to you, right?”

  • ”Rather than thinking of it as a race, are you saying that you would dismiss evidence, not listen to witnesses for my client, ignore fellow jurors and the law?”

Go back to people in the venire armed with what you have developed through talking with other jurors. It is the art of conversation that informs when to push and when to stop. One of the most effective attorneys I’ve seen takes this patient and methodical approach, limiting opposing counsel’s ability to succeed in their cause arguments. Hearing a juror express discomfort toward the nature of a lawsuit or opposing counsel’s client, he thanks them, then moves on to another potential juror:

  • “You have negative attitudes toward these kinds of companies, but you do not know anything specifically about this one, right?”

  • “So, this is a general feeling, not a particular one about this company, right?”

  • “Thank you. Now Miss Smith [turning his attention back to the juror who seemed hesitant about the question of negative attitudes toward opposing counsel’s client], you just heard what your fellow juror said, so I want to come back to you. You expressed some concern with being fair, but isn’t it the same sort of feeling as Mrs. Taylor, that this is a general feeling, and not a specific one? So, with that in mind, let me ask the questions again, you have not heard any evidence, right?” etc.

Your rehabilitation questions are a set of blocks opening you up for a successful rehabilitation strategy. Line them up methodically in a clear and direct pattern. Often times you just need three key blockers: the evidence, the law, and the duty to deliberate. Force the opposing counsel to make difficult choices in their use of limited peremptory strikes as you march a step further toward the goal line.

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