BY JAMES STONEThe one aspect of a jury trial that is undeniably the most important is the jury selection process. Because of this, lawyers can find themselves married to a particular method or process when selecting their juries. While some may be willing to change and adapt and incorporate new ideas for this process, others might consider their way to be the “best” way and never change their stripes. And, green lawyers who are not impervious to change may still be searching for their “right way” to select a jury.
Just with changing your practice from all-paper to paperless, these days, lawyers can do the same for their jury selection process. Most lawyers are aware of the iPad/iPhone applications that can be used to supplement, or even replace, the traditional jury selection process. What most lawyers are probably not aware of is how easy it can be to bring in that level of technological sophistication to the jury selection process, without the hassle of searching for a new program, vetting that program, and learning the ins and outs of that program before using it in a real-life setting.
One attorney has done this. Michael Ruppersburg, a lawyer at Blasingame, Burch, Garrard, & Ashley, P.C., has recently spent time researching the psychology of jury selection and really applying the science to his voir dire in order to “de-select” jurors who could have a negative impact on his cases at trial.
Michael uses Microsoft’s PowerPoint to create a slideshow of his general voir dire questions and runs his presentation in front of the selection pool. This allows him to display his questions for all the potential jurors to see. This ensures that, barring some physical limitation such as diminished eyesight or illegibility, the jurors can see the questions and may have a better chance of understanding the question in the event they may mishear the lawyer who is asking the questions.
In tallying up responses to certain questions and creating a weighted response system, Michael then turns to Microsoft’s Excel to input the response data to “score” his panel. By using Excel, Michael is able to keep the data of this panel in a neat and clean way. Plus, because it is a digital file, he is able to save this data with the case file, giving him the ability to store this data with his digital file forever.
Michael has used this process in a handful of trials and now has a large enough sample size of results to fully evaluate the effectiveness and ineffectiveness of using PowerPoint in the jury selection process.
I recently sat down with Michael and discussed this concept and how he incorporates simple technology into the stressful process of jury selection.
JS: How did the idea of incorporating PowerPoint and other technology to help in the jury selection process come about?
MR: Two things. First, I wanted to win more cases and get better verdicts. I wasn’t happy with the results I got in my first several trials and felt that jury selection was a big part of that. I would ask questions and get crickets in response. I wasn’t getting jurors talking like I wanted to and wasn’t getting jurors struck for cause that I thought should be.
Second, jury selection is the most chaotic and unscripted part of a trial to me and the part of trial where I struggle most. I wanted to develop a way to “script” out jury selection better and that would also help me do a better job of getting jurors talking, identifying problem jurors and getting strikes for cause.
JS: What are the pros and cons of shifting to this format versus a more traditional/conventional method?
MR: Pros: The general questions go quicker. By asking “agree” or “disagree” questions and questions where a juror must answer on a scale of 1 to 10, you are guaranteed to get responses from all jurors in your jury pool, even the shy ones.
Cons: This process can seem more formal and less organic because of the way you are conducting voir dire. It can also add additional case costs if you are using a courtroom technology company.
JS: How receptive are judges and defense counsel to you using your PowerPoint slides in the jury selection process?
MR: Judges have been very receptive. Several were initially concerned that it would make jury selection take too long, but when I have told the court that I could ask all my general questions in an hour, they’ve agreed. I haven’t gotten pushback from defense counsel on using technology in jury selection, but I usually draw objections to several of the questions/slides. One of the great things about PowerPoint is that if the judge sustains an objection you can edit the slide on the fly to remove the objectionable material.
JS: How do you make sure you are building a legal record for strikes for cause and for appeal?
MR: For a question like, “If the evidence supports it, would you have any concerns over returning a verdict for a very significant amount of compensation?,” I ask jurors to raise their hands if they have concerns. Then I state the juror numbers of each juror that raised their hand.
For the scaled questions, I ask each juror where they fall on the 1 to 10 scale. Then I make sure the record reflects their answer by saying “Juror 12 is a 2.”
JS: What advice can you give to those who are interested in revamping their jury selection process to include more technology?
MR: Most importantly, the scaled questions that are presented on screen to the jury pool are designed to identify problematic jurors I need to follow up with in individual voir dire. Individual voir dire is far more important to identify jurors’ views and striking them for cause. That’s a skill I’m still working on. Other than that, create a spreadsheet to track the jurors’ answers to each question (email me for an example). Make sure you have someone with you to take down the jurors’ answers. Hire a legal presentation company to set up the courtroom technology or have someone on your staff who’s responsible for it. ●
James Stone is an associate with The Stone Law Group in their Atlanta office. He is a 2017 graduate of the GTLA Leadership Education and Advanced Direction (LEAD) class and currently serves on the Verdict Editorial Board.