The jury looks at the speaker, quizzically. Who is he? His voice is strange. How is he dressed? What’s he talking about? We’ve been told this is his “opening,” but we just met him. Hard to concentrate on what he’s saying. It would have helped to have known him a bit before we had to concentrate on his words. He reminds me of Uncle Pete. She reminds me of Aunt Mary. I never liked either one of them. Why is this stranger talking at us so earnestly? What kind of a system is this anyway?
Welcome, jurors, to a federal court jury selection. These are the lawyers giving an opening who will try this important case before you. They were not allowed to speak to you during your selection. A judge, who doesn’t know the case as well as these lawyers, did all the talking and questioning.
What’s that lawyer saying? The guy suing has been divorced three times but it has nothing to do with the case. Well, it has something to do with my view of his case. Should I tell you about my ex-husband? Oh, I’ll be fair to Mr. Gigolo. I’ll give him the justice he deserves. I wonder why the judge didn’t ask us about that when we were being questioned. Maybe the judge didn’t even know about the divorces or think it important, or maybe the lawyers didn’t tell him. Well, they had their chance to question me. I’m not going to volunteer now.
Normally, that kind of issue is covered by the lawyers during selection. How did we arrive at such a system where the lawyers are essentially gagged until their openings? Having spoken to many district judges over the years, I know there is little doubt among them that the federal way is the better way. They even take pride in eliminating all those lawyer attempts at brainwashing the jurors during selection.
There’s no doubt a judge asking some questions can be helpful. Jurors who have to respond with some embarrassing information to a judge’s questions about past experiences can’t blame the lawyers for their embarrassment.
There’s also no doubt that the Federal Rules have always given lawyers the right to question jurors. Federal Rule of Civil Procedure (Rule 47) and Criminal Procedure (Rule 24) both emphasize that the court may permit the attorneys to examine prospective jurors. If the court does the questioning, the court must permit the attorneys to make any further inquiry the court considers proper. Or the court itself may ask those questions.
So how did the lawyers get completely excluded from the process?
It must be admitted that over the years there has been abuse in the state system of selecting juries. This has sometimes happened, particularly in civil cases, when no judge was present and lawyers, seeking to gain advantage, asked improper questions.
Jury selection went on too long, sometimes for days, when there was no need for such a marathon. Some senior lawyers have taught young lawyers that jury selection is “where you win the case.” The only problem with that is, even if you could get away with it, your opponent would then also try to win it in jury selection. In jury selection a lawyer can, of course, plant seeds which may germinate into a strategy, but it really shouldn’t be time to win the case.
No, as tempting as it may be, the purpose of jury selection should not be to win the case but to weed out those jurors whose biases would make it difficult, if not impossible, for them to be fair jurors. And incidentally, the best advocacy may be for a lawyer to come across not as a belligerent advocate, but as a fair and reasonable person. How? By being fair and reasonable. Soon, there’ll be the opening ,a very great opportunity for advocacy without ever arguing.
Reforms have cured much abuse in state court selection. Judicial hearing officers now often preside, at least for a while. A judge can be requested if there is abuse. Time limits have helped. Counsel are more alert to abuse and quick to object and seek judicial intervention. Written questionnaires have been helpful and informative.
The advantages of lawyer participation are, of course, obvious. Clients see that their lawyer is representing them during this important process of selecting jurors. Both lawyers and jurors have a chance to detect if some unfair antagonism exists between them. Other lawyers have a chance to detect if there is an uncommon friendly bond developing between a juror and another lawyer. A true dialogue between counsel and potential jurors can explore their potential biases and preconceived ideas. This approach embraces the humanity of the jury system, otherwise selection might as well be computerized.
Many in the federal system have started their fine careers in one of the great establishment law firms or served as Assistant U.S. Attorneys. Wonderful backgrounds but perhaps causing them to see state jury selection through the narrow prism of rumors: “The lawyers just want to brainwash the jurors.”
But hope is on the way. Some are starting to see the wisdom of allowing lawyers some participation in jury selection. The federal judge or, even with the parties’ consent, a magistrate judge, or a judge’s clerk, can preside. That alone should prevent most abuse.
Eastern District Judge Frederic Block has long permitted some lawyer participation in jury selection. It is significant to note the Block tried state court cases before he went on the federal bench. It has been successful. Abuse has not occurred. The lawyers are appreciative. The quality of justice has been improved. Jurors get to know the lawyers. And both lawyers and jurors have a chance to evaluate each other. Lawyers who have lived with the case for years have a knowledge of the case that a judge, no matter how diligent, recently introduced to it, cannot possess.
The little extra time involved is worth it. Time limits can be set. People’s lives will be greatly affected by the outcome.
I believe now is the time for all to embrace this wise and helpful improvement. There is no need for a juror to first meet a stranger when the opening arguments are given. Lawyers should have an opportunity to personally root out those “killer” jurors with deep prejudices.
To the lawyers who want full participation with no judicial intervention and to the judges who want no jury participation by lawyers, I say both sides should admit there may be a better way.
I believe a desirable approach would be to have written questionnaires, then the judge asking the basic questions, followed by the lawyers who are permitted a reasonable time to examine the jurors. That way, all sides have direct access to those who will decide the matter and we will be nearer our goal of a fair trial for all.