Virginia Lawyers Weekly

Trials may be on the wane but lawyers still want to know how to choose a jury.

Lawyers trying to pick people who will decide for their client may review juror questionnaires and do Google searches, or hire a consultant to eyeball venire members during the voir dire question-and-answer.

Ultimately, there’s “a lot of luck involved, a lot of common sense,” Richmond personal injury lawyer Jay Tronfeld said at the Oct. 30 annual conference of the Virginia Association of Defense Attorneys in Richmond.

Voir dire may be the lawyer’s first chance to be “a salesperson for your client,” but the lawyer needs to “know your judge and how much latitude you can take,” said Tronfeld, a veteran plaintiff’s lawyer. Virginia courts like to keep a tight rein on voir dire, and “you don’t want to be embarrassed by having the judge shut you down” during that first contact with the jury.

Tronfeld’s maxims to maximize a lawyer’s chance of getting that “fair-minded” jury plaintiff’s lawyers dream of include:

• Never leave an expert on the panel. Tronfeld said he once left a psychiatric nurse from the Medical College of Virginia on a jury hearing a post-traumatic stress disorder case, thinking she would sympathize with his client. Hurricane Gaston blew into town, the courts shut down and, left with time on their hands, the lawyers settled the case. When Tronfeld bumped into the judge’s clerk on the street a few days later, the clerk told Tronfeld he had gotten lucky. The enterprising nurse had done her own research into the case and uncovered some information about his client’s marijuana usage.

“Obviously, I broke the rule,” Tronfeld said.

• Be very observant of every detail. Don’t just watch how the prospective jurors respond to you, watch how they interact with each other. Do they have their arms crossed? Are they dressed up? Dressed in a standard-issue conservative suit and tie, Tronfeld told the defense lawyers, “You want to pick somebody who looks like me,” while “I want the guy with 16 chains around his neck and a tattoo on his forearm.”

• Don’t ever forget Batson v. Kentucky. U.S. Supreme Court cases outlaw race and gender discrimination in jury selection. There’s also “reverse Batson, that keeps lawyers in some urban venues from striking every white juror without a satisfactory race-neutral reason. As the lawyer evaluates each juror, he has to be prepared to articulate race-neutral reasons for striking particular jurors.

“Every question you pose to the panel, you should have Batson in the back of your mind,” Tronfeld said.

• Jurors do not like to see dissension among the lawyers. The jurors will blame you if you’re the source.

• Telling jokes is a big mistake. What you think is funny may not tickle someone on the jury, and you’re all there for some serious business – to try the case.

Defense lawyer Sandra Ezell, also of Richmond, tries products liability cases for major manufacturers all over the country. Ezell respectfully disagreed with Tronfeld’s tips, including his point about leaving “experts” on the jury.

• Look for leaders, which can include “experts.” Ezell said it’s important to identify potential “leaders” on a jury, whether they emerge as leaders because of their expertise or because of personality. The lawyer really is “deselecting” by removing jurors who could “cause you the most harm.”

“We do voir dire because the stereotypes are not all that helpful” in dealing with “all our preconceptions about nurses, social workers, race and gender issues,” according to Ezell.

• Let jurors know who you are. Ezell believes revealing her own strong personality can be the best way to flush out potential juror reaction to her and to her case. She wants to find out “who has the emotional or intellectual predisposition” against her case, saying the “emotional” response is more difficult because that juror “won’t listen to our evidence.”

Don’t be afraid to be a little confrontational, if that’s your style. Asking potential jurors if they have ever heard her client, Ford Motor Company, referred to as “Found On the Road Dead,” can be a real ice-breaker and get the jurors talking.

• Look for the cheerful, optimistic person. Ezell’s questions try to get at where a potential juror falls on issues of personal responsibility versus paternalism.

“General cheerfulness is a good thing to look for in a defense juror. Someone who is angry at the world is better for the plaintiff, someone who already feels like a victim,” she said.

The judge, of course, had the last word.

Virginia Beach Circuit Judge Stephen C. Mahan described the “best voir dire I ever saw.”

“The plaintiff’s lawyer had done a fumbling job with voir dire” and clearly “was not comfortable with being there and had not endeared himself to the panel,” the judge recalled.

When the trial judge told the defense lawyer it was his turn, the lawyer stood up and said, “Your Honor, I believe we’re ready to start this trial.”

“The jurors all lit up,” and you could see this lawyer had sized up the jury and its tolerance for lawyer talk. “At that point, the lawyer had solidified” his connection to the jury, by assessing and responding to cues from the jurors.

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