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Peitho: ‘It Ain’t Necessarily So’ – Lessons in jury selection

By RICHARD H. WILLIS, Special to Lawyers Weekly



You don’t have to be a South Carolinian or a musical theater fan to appreciate George and Ira Gershwin’s famous song from “Porgy and Bess,” “It Ain’t Necessarily So.”

I mention South Carolina, not only because the musical is set in the Holy City of Charleston, but also because the true lyricist was not Ira Gershwin, but one of South Carolina’s best writers, DuBose Heyward.

 Heyward wrote the novel Porgy in 1925. His biographer called it “the first major southern novel to portray blacks without condescension.” After the book’s success, Heyward quit his job as an insurance salesman and devoted himself to writing.

He turned Porgy into a Broadway play in 1927, and collaborated with the Gershwins on the 1934 musical version, “Porgy and Bess.”

Of Heyward’s contribution, the great Broadway composer and lyricist Stephen Sondheim wrote: “DuBose Heyward has gone largely unrecognized as the author of the finest set of lyrics in the history of the American musical theater. His work is sung, but he is unsung.” 

 The song title has become a cliché for contrarian wisdom, of which it takes a heap (not to mention some luck) to select a good jury.

 Jury selection, or rather, de-selection, has been called “an exercise in prejudice.” Swift, “The Unconventional Equal Protection Jurisprudence of Jury Selection” 16 N.Ill. U. L. Rev. 295 (Spring 1996).

 Get a few cocktails into any trial lawyer and ask about their least favorite jury. They almost invariably will tell you a story about a personal prejudice that did not pan out – a juror who should have been a “fer ye” or a “don’t care,” who turned out to be an “agin’ ye” (more on this in a bit.)

How can that be? Aren’t our personal prejudices, the ones we keep buried under platitudes about all men being created equal, always right?

 Sadly, “It ain’t necessarily so.” Are all female jurors sympathetic? Are all male jurors hard-hearted? Are all African-American jurors anti corporate defendant? Are all under-30 jurors emotional decision makers? Not necessarily …

 The truth is, some are and some aren’t. As such, exercising your precious peremptory strikes based on your personal prejudices is bound to mislead. Besides, outright reliance on personal prejudice can get you in trouble. See Batson v. Kentucky, 106 S.Ct. 1712 (1986), and J.E.B. v. Alabama, 114 S.Ct. 1419 (1994), disallowing racially motivated and gender-based peremptory strikes.

Of course, trial lawyers aren’t supposed to admit this. Jury selection is all about finding an impartial panel, right? Rubbish! It is all about compiling a jury that is as predisposed to your position as humanly possible. The idea is that if both sides are after the same objective, somehow the tug of war produces a fair jury. “It ain’t necessarily so.”

OK, Willis, if I can’t rely on my personal prejudices, what can help me separate the “agin’ ye” jurors from the “fer ye’s” and the “don’t cares?”

 Well, careful voir dire questions, of course, and accurate jury information developed pre-trial, but those subjects are for another day. What “gut feel” can be reasonably relied upon in the heat of the courtroom? 

 Each veteran trial lawyer has his or her secret list – Clarence Darrow shared his in 1936: Female jurors were “puffed up with importance.” Presbyterians were “as cold as the grave.” Was Darrow always right? Ask John Scopes. (He was convicted.)

 Like all my techniques, what follows is admittedly stolen from a great trial lawyer – this time, my senior partner, Dick Bowman, the man who tried (and won, then lost, then won) Larsen v. General Motors, 391 F2d 495 (8th Cir. 1968), the first crashworthiness case in judicial history, not to mention a few hundred others since then.

 What I stole from Bowman is the concept of the “happy status quo” juror, versus the juror who is an “agent of change.”

Status quo jurors are reasonably satisfied with their lot in life. The world has treated them kindly. They have a steady job, a stable family. They are content with the way things are. In a typical civil case, these tend to be defense jurors. It takes powerful evidence to persuade them to change the status quo, to take hard-earned dollars from one party and give them to another.

 On the other hand, jurors who are unhappy with their world, who have perhaps been victims themselves, of an unfair boss, of bias, of circumstances undeserved – maybe they have lost a job or a loved one, maybe they are dealing with a family crisis, financial hardship – these tend to be agents of change, if not in their own lives, then in the lives of people they think need help. It takes a powerful appeal to higher emotion to persuade these folks to set aside their natural affinity for the wronged, the hurt. Unhappy jurors can easily become punitive jurors, if given the right reason.

 One of the advantages of this approach is that it is “Batson-proof.” But beware; even this advice “ain’t necessarily so.” How do you know? Truth is, you don’t. It is always an educated guess.

The operative word is “educated.” Do your homework. Ask the hard questions in voir dire. If you are in a court that allows lawyer-conducted voir dire, be sure to talk about the weaknesses in your case before the other side gets a chance. Use open-ended questions – what, when, where, why and how – to get prospective jurors talking. HDYFAT -“How do you feel about that?” It’s the best question you can ask in voir dire.

 Now, about the “fer ye’s,” the “agin ye’s” and the “don’t cares.” This is also stolen, from my former partner and lifetime mentor, Steve Morrison, a veteran over 250 jury trials.

According to Steve, there are only three types of jurors. Identify the “agin ye’s” and strike as many as you can. Don’t concern yourself too much with the “don’t cares.” Then pitch your case to the “fer ye’s” who are left, for they are the ones who make the most important argument in the case – the one that takes place where you can’t go – inside the jury room. Your job as an advocate is to arm the “fer ye’s” with the evidence and arguments they need to win your case for you, while you are nervously pacing the halls, wishing you still smoked cigarettes. 

 And that’s the only part of this article that is “necessarily so.”

 Editor’s note: Willis is a partner in Bowman and Brooke’s Litigation practice in the firm’s Columbia office. His practice is focused on commercial litigation and the defense of product liability and environmental claims nationwide. Willis is also an adjunct professor at the University of South Carolina, teaching trial advocacy.

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