Teaching Jury Selection

 Posted on August 30, 2007 in Uncategorized

Scott Greenfield has been having a discussion with his multiple personalities, all of whom are named "Steve", about what to do with 3Ls (presumably when they're not on law review, tormenting law profs). Scott and the Steves propose actually teaching law students how to be lawyers.

I've been giving a lot of thought lately to the woeful preparation law school provides us for practicing law. It could well be the subject of a class action suit, except that most law school graduates don't know enough to sue until all applicable statutes of limitations have expired.

For a few years I helped teach a criminal trial advocacy class at my alma mater, the University of Houston Law Center. It was fun spending three hours every Wednesday evening teaching future lawyers, and several of my students are now in practice on either side of the bar. The students trying cases are doing well, and I feel like I contributed something to their education.

In my experience, the most difficult part of a trial to teach is jury selection. (Cross-examination is easier to teach but more difficult to execute.) I'm not talking about teaching "accept jurors in this racial / occupational / social / religious group, and reject jurors in that one" - any idiot can teach that, and many do. I'm talking, rather about the art of getting potential jurors to reveal to the group the private thoughts that will affect how they decide your client's case.

Lots of people are afraid of public speaking. These people might think they need to get over their fear of public speaking to select a jury. To the contrary, they need to get over their idea of voir dire as public speaking. Voir dire is not about speaking but about public listening. As a rule of thumb, the less the lawyer speaks during voir dire, the better.

(In Texas, jury selection is usually done en masse. In states with individual voir dire, the skills required are a little different.)

The only way to learn how to listen to a jury panel is to do it. The experience of picking a real jury can be very roughly approximated for a student by having the student's fellows role-play jurors (having law students or lawyers play themselves doesn't work because they are already a much more homogeneous group than a real panel would be). If everyone has a clear idea of the roles they are playing, and if they all take the acting seriously, then this works okay. The problem is that the role players usually don't present themselves as subtly as real people do.

A better approximation of the real experience could be created by bringing in a group of ordinary people to be themselves in a mock jury selection.

There are companies that provide ordinary people for focus groups and mock juries; why not use one to gather a mock jury panel? By my math, a panel of 24 people for a day would cost $3,000. Add in room rent, refreshments, and a pro bono faculty of talented lawyers, and a day of jury selection school could be produced for less than $4,000.

If you took 12 lawyers at a time as students, the cost per student would be less than $350 per day. In an eight-hour day, each student would get a half hour or more before the panel, receive suggestions and critiques from the faculty, and learn from her fellow students' performances and critiques. I would be inclined to incorporate related disciplines by including some acting exercises and improv training in the program as well.

The question is: would a dozen Houston lawyers be willing to pay $300+ apiece for one long day dedicated to better voir dire?