My general theory of jury selection is quite simple: I opt for potential jurors who seem to like me and reject those with whom I seem to have little rapport.  To a large degree, despite careful jury instructions, a trial often devolves into a personality contest.  And the winner is the lawyer who the jury likes best.

But in recent years, I have worked with jury consultants who purport to use “science” and social media research to discover the optimum jury for a defense case. And sometimes the results are helpful. Unrestricted Facebook and Twitter accounts often yield insights about juror attitudes that would never be revealed, even under close questioning.

Recently, at an insurance conference sponsored by The Federation of Defense and Corporate Counsel, I encountered a jury consultant who seemed to talk eminent good sense. The trick, the consultant said, was not to select the right jury but to “de-select” potential jurors who have an animus against insurance and corporate interests.  The way to get there, the consultant offered, was to get rid of the “Fair and Impartial” rubric (that is, “I represent an insurer and the plaintiff is a homeowner.  While you know little about the controversy, would you agree with me that we both begin in the same place – – at the starting line?” “Do I have your assurance that you will be fair and impartial and judge this case only on the evidence before you?”).  The consultant’s point was that virtually everyone, unless they want to duck jury service, will say “Yes” to questions couched in terms of fairness and impartiality.  It’s human nature.

The tell, according to the consultant, is to ask questions about life experiences. “Did anything ever happen to you, a family member, or a friend that made you angry with [an insurer] or [a corporation]?  “What angered you?”

Of course, such broad questions, pose a risk of tainting the jury pool. But often, especially in Federal Practice, such questions may be embedded in a jury questionnaire that is prepared and circulated beforehand.  But even in “free form” selection, often with the court’s cooperation, such questions may be answered in chambers or at the bench.

While fairness and impartiality are tried and trusted themes, they rarely uncover true juror bias. Think of ways, depending on the particulars of the case, to explore the life experience of potential jurors.

And that’s it for this This and That. If you have any suggestions about your theories of jury selection, please call or email Dennis.