Managing Jury Selection Effectively by 75UQmA


WEDNESDAY, OCTOBER 5, 2010 -- 10:45 A.M. – 12:15 P.M.

Part I. Improving Judge & Lawyer Collaboration During Jury Selection
[1 hour]:

Learning Objectives:
After this session, the participants will be able to:
   1. Better appreciate both the common and the differing (sometimes competing) goals
        held by judges and lawyers during jury selection.
   2. Describe common attorney techniques or practices that impede the timely and
        efficient completion of jury selection;
   3. Describe how judicial techniques or practices can stand in the way of the litigants
        obtaining essential information about prospective jurors; and
   4. Describe at least one new jury selection practice that the participant will utilize at
        least on a trial basis in the future to improve judge and lawyer cooperation during
        jury selection.

Learning Activities:
   1. Opening: Greg Mize as moderator begins by highlighting the trial experience of
      fellow panelists and explaining the goals of the role-play: (1) to appreciate the
      differing roles of judge and lawyer during jury selection, and (2) to consider the
      function of a trial judge to be not merely an umpire but also a seeker of important
      juror information and an educator of the prospective jurors. He also suggests
      some fundamental principles for impaneling a fair and impartial jury by
      referencing the already-distributed text of Principles 11 & 12 of the ABA
      Principles for Juries & Jury Trials. He focuses on these core inquiry methods: (1)
      written questionnaires, (2) “open court” questioning of the venire, (3) “open
      court” receipt of citizen answers, and (4) individualized voir dire of prospective
       He briefly invites the audience to pull out the previously distributed civil case fact
       pattern which will be used in the upcoming role-play exercise.
[5 minutes]
   2. Role-play exercise: John Rodman (major) and Greg Mize play the roles of trial
      counsel and Tina Habas is the trial judge.
      Scenario #1
          Tina is the archetype umpire judge – fair, efficient, terse – nothing more.
          Open role-play with bench conference before the venire panel comes into
             the courtroom. [Rodman for P, Mize for D.] They make joint motion to
               be able to ask open-court questions to supplement the court’s questions.
               In colloquy with court, John and Greg give the court their rationales for a
               certain line of questioning, a timeframe for it, and a sample of what they
               would ask and why. Tina denies same saying she can do it just as well if
               not better. Counsel add a request to take all juror responses at the bench
               or in jury room. All requests are denied.
              Role play switches to a courtroom setting [after Greg gives the audience
               brief stage directions] where Tina addresses the audience as if it were the
               venire panel, summarizes what the case is about, introduces counsel and
               gives them a succinct explanation of what will happen in voir dire, e.g. the
               prospective jurors to raise their hands if they have a yes answer to any
               open-court Q, give explanation when asked to do so by the judge. She
               then asks 4 sample questions.
                       1.      Do any of you recognize any of the lawyers, parties,
                               witnesses, etc.?
                       2.      Any of you have prior employment with LA FD?
                       3.      Any of you received prior emergency medical or fire
                               fighting service?
                       4.      Any of you learned anything about this case from the
              Kent is a plant in the audience and his hand is the only one recognized.
               He gives a radioactive answer (for example, he learned stuff from news
               reports about the case, has opinion about EMTs, etc.). John asks if we can
               approach the bench.
[15 minutes]

       Scenario #2 [Greg explains it as the re-trial of Pearce before another judge]
           Tina is a welcoming, educator judge as well as umpire.
           Role-play opens with another bench conference. John and Greg making
              same motions as earlier but Tina works with them and sets the ground
              rules for lawyer participation in open-court questioning and limited,
              individual voir dire follow up questioning at the bench.
           Role-play switches to the courtroom and the audience. Tina starts out the
              voir dire with a welcome and introduction that educates the venire panel
              about such things as the purpose of voir dire, the importance of jury
              service, provides a road map about what is about the occur [e.g. the
              questioning process, some prospective jurors will be stricken from further
              service, the importance of the oath to tell the truth during voir dire, maybe
              even explain the legitimate purpose of peremptory strikes]. Schmaltz it
              up!! Be a wonderful teacher.
           Tina asks the same open-court Qs as in Scenario #1. Then John and Greg
              ask one or two other their own to the audience.
           Kent responds to the same question as before but at the bench. John and
              Greg asks a couple of follow ups to learn more from him. Maybe Tina
              tries to rehabilitate him to keep him on the jury.
[20 minutes]

   3. Audience dialogue: Greg as moderator will open it up to the audience for
      comment and questions. The three of us inspire discussion about: (1) the
      paradigm of judge as passive umpire wherein the judge controls everything,
      moves with speed, and minimizes lawyer participation, and (2) the model of judge
      as interactive manager and judge/lawyer cooperation whereby they work together
      to obtain useful information about each prospective juror yet mindful of the
      judge's concern for efficiency and citizen education. New Colorado Civil Rule 47
      comes up for discussion.
[20 minutes]

Case Hypothetical

Tennie Pierce v. City of Los Angeles

Background facts: Tennie Pierce sued the City of Los Angeles after he was tricked into
eating dog food at a Westchester fire station. Pierce was the only African-American
employed at the fire station. He claims that the trick was perpetrated on him because of
his race. Pierce, a 19-year veteran of the department, alleges that Fire Department
supervisors purchased the dog food and did nothing to stop him from eating it. He
charges that the incident fit an ongoing pattern of harassment against minorities and
women. Pierce asserts that the City engaged in a cover-up of the incident and its
practices. The firefighter finally contends that for more than a year following the trick
feeding he was subjected to verbal slurs, insults and derogatory remarks including his
colleagues “barking like dogs … asking him how dog food tasted.”

The City denies all allegations of discrimination. It further asserts that the dog food
feeding was an innocent joke designed to humble the plaintiff after he proclaimed himself
“Big Dog” during a Fire Department volleyball game.

Part II. Handling Juror Twittering and Online Researching
[20 minutes]:
Learning Objectives:
Participants will be better able to prevent or to respond effectively to incidents of juror
use of hand-held devices to conduct online social networking or research.

Learning Activities:
   1. Opening: Moderator begins by highlighting the ever-growing phenomena of juror
      use of electronic devices to reach outside the courtroom during jury service.

[1 minute]
    2. Role-play exercise: John and Greg again play the roles of trial counsel and Tina
       is the trial judge. She receives a note (the one we talked about on the telephone)
       from a deliberating jury concerning a juror’s illicit use of the internet. She asks
       trial counsel for input on how to respond. John and Greg give suggestions.
[4 minutes]
   3. Audience dialogue: We collectively open it up to the audience for comment and
      suggestions. We will try to tease out stories of others who have encountered this
      type of juror behavior during trial. Toward the end, Greg shares pattern
      instructions used in various states.
[15 minutes]


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