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Jury Selection

Bull or No Bull

It's a civic duty many people dread: jury duty. But it's a duty that's integral to our justice system – and one that most people take quite seriously once selected for a jury, says Michael McDivitt, founder of McDivitt Law Firm, a family-owned, personal injury law firm.

“There are people many times who don’t even want to be there,” McDivitt says. “But by the end, they are buying into the justice system; they feel really good about service.”

For attorneys, the art of jury selection is critical.

“Your job is to try to find those people who are going to be attentive and alert,” McDivitt says. “You don’t want people who appear to be blasé about it and just wish they weren’t there. You want people who are open-minded, who come across as unbiased.”

The trick is to ferret out those biases, since people aren’t likely to reveal them, says criminal defense attorney Timothy Bussey.

“Very few people want to be identified as someone who can’t remain fair,” he says. “Just about everybody’s going to say they can be fair. There’s where you have to ask additional questions and try to get the person to open up, to explore what’s going on inside them.”

Body language can be one clue to what that prospective juror is really thinking, Bussey says. “You’re looking to see if the person is open and interacting with you, or closed and not forthcoming with information. That can be a red flag.”

In questioning prospective jurors, “I like to talk to them about what kind of bumper stickers they have on their car, the kinds of books they like to read,” McDivitt says. “I like to get to know them a little bit. In the process, what you’re doing is also educating the jurors about the theme of your case.”

Time restraints are a challenge, though, Bussey says. “You’re not given a lot of time to connect with people. Sometimes you’re given as little as 15 minutes. I have referred to it in the past as legal speed dating.”

Attorneys try to figure out who might lead the jury. “It’s important to identify someone who you believe will be the foreman,” Bussey says, “because they’re going to be a strong influence on which way the deliberations are going to go. But it’s certainly not an exact science. Sometimes it’s the least likely person you’ve identified through jury selection.”

Bussey sometimes uses trial consulting firms as a tool. Jury consultants don’t question prospective jurors, he says, but can help set up jury questionnaires and may sit at the table with the attorney, providing another set of eyes on the jury.

“What they do is help you to assess the jury,” he says. “It’s always important to have somebody else watching the jury.”

McDivitt also uses jury consultants from time to time, but not like the high-tech, high-power consulting firm portrayed on the CBS series “Bull.”

“They come across as having a goal of selecting people who are preconceived to your side of the case,” he says. “That’s just so unrealistic.”