How Lawyers Judge the Jury

Debbie Salamone - Orlando Sentinel - April 7, 2008 Back to News

Sooner or later, you'll probably head to the courthouse with a jury summons in hand.

Expect a barrage of questions: What do you read? Should a defendant have to testify? Is life fair?

Will you make the cut as a perfect juror?

It depends on the case. But the search for a jury is an exercise in psychology. Lawyers want to know what makes you tick, and they typically have only a few hours to figure it out.

Think of it as speed dating for justice.

"I like anyone who thinks logically," says Bob Mansbach, a lawyer with Zimmerman, Kiser & Sutcliffe, P.A., who specializes in premises and products liability, legal and medical malpractice. He has chosen about 50 juries during 25 years of practice. "I like anyone who can process an argument."

In most cases, lawyers look for the basics: people who are smart, can understand what's going on in court and can make decisions. They have their eye out for people who will be able to control things when deliberations start. After that, it's often a free-for-all, and many lawyers have their own preferences.

"I love mailmen. I don't know what it is. They are all nice, friendly, talkative souls. They just seem to be happy, warm human beings," says Keith Mitnik, of Morgan & Morgan, P.A., who has selected some 100 juries in his career. He has received multiple verdicts over $1 million and teaches the art of jury selection.

Engineers? Teachers? Military? Young? Old? Men? Women?

"I like engineers," Mansbach said. "They tend to think logically and won't be swayed by emotion."

Some lawyers see teachers as more liberal and lenient because they deal with children. Military folks are sometimes favored because they know how to follow instructions and the law. Young people might be easily swayed by older jurors. Older people may be more conservative. Men might be good for a female client, but in general older men may be grouchier than younger men. Women may be good for clients suffering from breast cancer but may be tougher on a female rape victim who may appear to them to have acted inappropriately.

Then there are the visual cues.

Nicely dressed jurors have a leg up because that shows respect for the legal process. And jurors who sit with arms crossed and don't make eye contact typically aren't favorites.

Does all this really work?

"As years go on, you learn you can't use black and white factors," said Bill Vose, Chief Assistant for the Orange-Osceola State Attorney's Office, which selects about 1,000 juries a year. He said stereotypes aren't reliable, and he prefers to find people who are intelligent, decisive and have life experience. Some lawyers agree that stereotypes get them only so far, but being aware of them is important. Others simply have time for little else. Jury selection is rushed, and they are grabbing for any easily available clues.

"Almost every one of our stereotypes are wrong," said Professor Linda Foley, interim chair of the University of North Florida's psychology department, who has conducted jury research. "The way lawyers sometimes fail is they say: 'I don't want women on this case.' But not all women have the same opinion."

She advocates a system similar to what Mitnik teaches: getting to the core of people's bias through probing questions.

Mitnik says people don't even realize their own bias or how it may emerge during a case. So he ferrets out the information by telling a story about barbecue sauce. Mitnik tells jurors he loves mustard-based sauce rather than tomato-based sauce. If he's a judge in a contest that comes down to mustard versus tomato bases, he asks jurors if contestants would want to know he's a mustard fan. Yes, they answer.

Then he relates that example to the case at hand. He asks, for example: How many have feelings about medical malpractice cases? And is there a chance we might be starting out with a strike against us?

Lance Harris, who served as a juror in an Orange County felony battery case in March, said he thought lawyers did a good job in getting to the root of issues in the case, such as whether jurors believed the defendant should testify, even though that's not required.

During questioning, "I could pick up things about people's feelings," said Harris, the director for orthopedic research at Florida Hospital, who was only asked a couple of questions. "They didn't get a lot of information from me. I didn't think I stood out as a good or bad juror."

And that's one of the reasons Harris probably was selected.

In an ideal world, a neutral person makes the perfect juror.