The Changing Face of Jury Pools

 Are you aware of how many of your prospective jurors are responsible for childcare? Often you lose the benefit of such jurors as they are regularly excused for obvious reasons. That being said, Courts are increasingly aware of childcare being an issue for prospective jurors and some have begun to proactively address it.

For example, Superior Courts in Riverside and Murrieta have childcare available for jurors. They accept children three years and older and are potty trained. A quick internet search of California Superior Courts shows other locations offering pretty much the same service, among them are Redwood City, Compton and Fresno.

Although there are too few Courts offering childcare for this to impact all jury pools, it is a trend that could very well develop quickly. Courts need more willing jurors and this is an intelligent approach to the problem. After all, significant segments of the population cannot serve if hampered by childcare obligations. We’re not just talking about young moms, but also fathers who are taking over childcare for working moms, single dads and the traditional grandmothers and aunts who provide such services for family.

Jurors with young children have a different order of concerns, and often a different lifestyle (sleep deprived, exist in a child-centric universe). Depending on your case, introducing these jurors into the mix means looking at your case through these jurors’ eyes, something you may not have had to do before.

A Simple Technique to Help Jurors Discredit a Lay Witness

When you’ve had a hand in making a decision, you’re that much more likely to go along with it. Jurors are no different. Questions in cross-examination that allow jurors to arrive at the unmistakable, inescapable, conclusion you want them to, are far more effective than ramming the conclusion down their throats or risking a sympathetic answer from opposing counsel’s witness.

For example: The lawyer is cross-examining a lay witness at the scene of a bus-pedestrian accident. The lawyer represents the pedestrian.

Question: Ms. Smith, did you see the bus as it came towards the intersection of First and Main shortly before the accident?

Answer: Yes, I did.

Question:  Could you tell us what the color of the light was for the bus as it came down First?

Answer: It was green, a green light.

Question: Really? But isn’t it true that when you spoke to the police officer shortly after the accident you said the light was red?

Answer: Oh, well, I’m sorry, I was a little nervous. I’m sure the police officer report is right.

The jurors may very well believe the witness, since she’s being humble and apologetic and who wouldn’t be nervous after witnessing an accident? The lawyer meanwhile has lost the opportunity to show the jurors that the case isn’t as cut and dried as defense would have them believe.

A more effective way to approach this might be:

Question:  Could you tell us what the color the light was for the bus as it came down First?

Answer: It was green, a green light.

Question: Ms. Smith, did you talk with a police officer right there at the scene, just after the accident?

Answer: Yes, I did.

Question: And did that police officer ask you what color the light was for the bus as it came down First?

Answer: Yes, I think he did.

Rather than pounce on the witness at this point and give her the opportunity to sympathetically correct herself, the lawyer could produce the police report and show (visuals work!) the portion where Ms. Smith unequivocally said “The light was red,” and simply end his cross on that note.

The jurors can now come to their own conclusion that Ms. Smith is, for whatever reason, being less than truthful, and are now much more likely to accept the police report as stated, which was exactly what the lawyer wanted them to do.

Don’t Let Your Expert be Goaded into Defensiveness

There’s a world of difference between assertive expert testimony and defensive expert testimony, where your expert is essentially arguing with opposing counsel.

Now, your expert may believe he or she has every good reason to argue with opposing counsel, as in, opposing counsel is dead wrong. But arguing with opposing counsel is never a wise strategy, and often a road to discrediting your expert.     

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Key words – a mantra, if you will. Your expert’s job is to clarify and educate. Period.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the tests you used is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a clarifying and educating response might be (in a calm, neutral tone): "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracks opposing counsel (who was undoubtedly expecting the defensive response).

Helping your expert to see his/her way to clarifying and educating – rather than allowing themselves to be goaded into defensive responses –  inevitably paves the way to a more credible, juror-sympathetic response.

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I recently had the opportunity to write an article for California Litigation. "Out With The Old, In With The New—Try An Updated Approach To Jury Selection" appeared in the latest issue. Click here to view.