Picking a jury is one of the great arts of the trial lawyer. The traits that make a juror valuable also can make him dangerous. Here are five such characters to consider.
1. The sheepdog: The sheepdog lives to protect the flock and confront the wolf. This juror might be older and an excellent candidate as foreperson of any jury, which makes him or her both high value and high risk.
The sheepdog tends to unite people and tends to filter or synthesize information on the group’s behalf. Strong candidates for this role include people in law enforcement or with military experience, fathers or mothers of large families, teachers and professors, and managers of companies large and small.
A sheepdog won’t necessarily answer every question during voir dire—or even very many. He or she actually may be quiet, shy and reflective. The sheepdog’s secret weapon is the ability to disseminate information to a group and explain complex topics with alacrity, which makes the sheepdog a thought leader for the group.
2. The historian: In an eight-day trial, the historian can recall each witness and individual exhibits by number because she took copious notes or has an incredible memory. I once asked jurors why they chose a particular person as forewoman. She was reserved in voir dire and gave no indication to me that she was either positive or negative for my case.
The response astounded me: “We selected ‘Jane’ because she took the best notes. Every time we couldn’t remember something from the trial, she told us exactly what happened, so we thought she should be in charge.”
The historian was going to be someone’s echo chamber in this case; she just happened to be my client’s. In a land of documents, the historian is queen. She helps jurors navigate and provides cross-references when jurors have questions.
3. The quiet extremist: This person holds extreme views that he would rather not share. Those views could range from “No one should get punitive damages” to “Everyone should get punitive damages.”
However, these views are more likely to appear when the lawyer asks scaling questions, such as: “On a scale from 1 to 10, do you find that you lean more toward the little guy or the big company, with 1 being the little guy and 10 being the big company?” In my experience, people who answer questions 1, 2, 9 or 10 on a scale are wildcards; they can hurt a case or add value to it.
The quiet extremist won’t volunteer to answer voir dire questions and, if pressed, likely will answer sheepishly. In one circumstance, in a trial involving a charity, I encountered a young man who had not volunteered to answer a single question. When faced with ranking himself as a sympathetic person on a scale of 1to10, he honestly answered “1.” I would not have found that particular quiet extremist without a scaling question.
4. The been-there, done-that: This potential juror knows something about litigation; he or she has served on a jury, worked as a lawyer or been a party to a lawsuit. Many trial lawyers are good at identifying this person, but they fail to ask a sufficient number of questions to probe that potential juror’s experience. That’s because it’s either too time-consuming or it may lead to an answer that would prejudice the jury panel.
However, the trial lawyer must question this person. Serving on a jury or being involved in a lawsuit is a stressful and, often, traumatic experience that shapes the lens through which that individual views life. Avoid the pain associated with discovering that a been-there, done-that juror retired to a jury room and said, “Now, here’s how it works in real life” and proceeded to reframe the evidence. This person acts an advocate for a way of looking at the case, which can increase or decrease the value of the case dramatically based on his or her own experiences.
5. The sleeper cell: Periodically, a trial lawyer fails to ask a juror who’s sitting in the danger zone of the first 24 seats any questions at all or elicit even a single response. The sleeper-cell juror is a complete wildcard who either wants to be on a jury or hopes that silence will allow him to go home. He might be any or none of the characters described.
The sleeper-cell juror genuinely keeps me up at night. In one voir dire, both attorneys ignored a potential juror. That person—a complete unknown—turned out to have strong beliefs and almost locked up the case single-handedly in the plaintiff’s favor, with vigorous debate in the jury room. That juror added hours to deliberation, albeit while making excellent points.
I have identified these characters through trial and error. Trial lawyers can use this as a helpful rubric to classify types of people who may affect the outcome a case. Get to know them, and learn when best to avoid them.
J. Mitchell Little is an equity partner in Scheef & Stone. Born and raised a Texan, he deals with all types of investment fraud and serves in the firm’s Collin County office.