Years ago, my old boss told me a story about a lawyer he used to work with when he was a young lawyer about another lawyer at his law firm picking a jury. I don’t remember the other lawyer’s name, so I’ll call him Pete the Personal Injury Lawyer. Pete got assigned a car wreck case from his boss that was a dog. There was very little liability on the other driver, and the client’s injuries were minimal. If the plaintiff had not been Pete’s boss’s yard guy, the firm would have never taken the case.
The case finally went to trial, and Pete didn’t care about the outcome. Pete just wanted to get the case over with. During jury selection, Pete got up and asked only one question of the jury, “Can you be fair?” Everyone on the jury panel nodded their head that they could be fair.
Satisfied with their answer, Pete turned around looked at the judge and declared, “Your Honor, I will take the first twelve jurors.” This happened to be the first jury trial defense attorney had ever tried. Confused and flustered, he stood up and objected, “Your Honor, I object!. That…that’s not in the rules!” The judge just smiled and told the defense lawyer to ask his questions. Surprisingly, Pete won the case.
The most common question I get as a lawyer is how do I avoid getting selected for a jury. The Texas Bar Association would not appreciate it if I wrote an blog about that, and I don’t want people to avoid jury duty. I need jurors for the cases I try. Otherwise, I would have to let judges decide my cases, and that is no bueno. Instead, this blog is about how I chose who gets on my jury.
The first thing to understand, is lawyers don’t really chose who gets on the jury. Instead, lawyers chose who doesn’t get on the jury. The way lawyers chose who doesn’t get on their jury is through strikes. In Texas, their are two types of strikes–strikes for cause and peremptory strikes.
A strike for cause occurs when a potential juror has stated that they cannot follow the law or be a fair and impartial juror. This happens quite often in personal injury cases. For example, if I’m trying a car wreck case, I will always ask the potential jury members whether they can award the types of damages my client is seeking.
First I will ask the jury panel if they can award damages for medical bills. Usually, everyone will say yes. Then I will ask if they can award damages for lost wages. Again, usually, everyone says yes. Then I will ask whether they can award damages for pain and suffering. This question always gets at lease one person to raise their hand and say no they can’t award damages for pain and suffering.
You would think that this potential juror’s answer would bother me, but it doesn’t. In fact, this is the nicest thing that potential juror could have done for me. I now know that, since he can’t follow the law and award damages that my client is entitled to, that potential juror is off my jury. I always thank the juror who raises their hand to this question. I tell them, “I know that you know that is not the answer I wanted to hear, but I appreciate you being honest. I bet other potential jurors have the same opinion.” Then I ask everyone if they agree with the juror. Usually, at least another half dozen potential jurors raise their hand. Awesome! I now got rid of another six jurors.
The other way to remove potential jurors is through peremptory strikes. Peremptory strikes are somewhat controversial, and some states don’t allow them. Basically, a peremptory strike allows the lawyers to remove potential jurors for any reason at all, except for race.
When you show up to jury duty, you will be given a card to fill out. The card asks basic questions (name, age, address, employment, and race) about the potential jurors. Based upon the answers to these questions, lawyers will start jury selection with an idea of who should and shouldn’t be on the jury.
Lawyers all have their own theories about who to use peremptory strikes on. Some lawyers don’t want engineers on the jury. Some don’t want accountants on the jury. Depending on the case, some lawyers may want more men or more women on the jury. Personally, I don’t think any of those things work. I typically use my peremptory strikes on the potential jurors who are either mean to me or nice to the other lawyer.
After all of the questioning of the jury panel is over, the lawyers and the judge get together to discuss which jurors should be stricken for cause. Once those jurors are removed, the lawyers (in secret) will fill out a list of the potential jurors that they want to use their peremptory strikes on. The clerk of the court will compare the lists of the jurors that were stricken. Then, the first twelve jurors (six in County Court) that weren’t stricken are called out to sit in the jury box. That’s how a jury gets “selected.”
So, I’m sure your wondering, how can I increase my chances of getting on a jury? First, being at the front of the line is the biggest determining factor. Unfortunately, you don’t get to decide where you are in line. The bailiff puts the jury panel in an order assigned at random. The second way to make it on a jury is to stay quiet. When the lawyers are asking questions, about whether you can follow the law or your opinions on various topics, they are asking those questions to determine whether they should strike you from the jury. If you don’t answer, they don’t know what to do with you, so you get to stay. Finally, be nice to the lawyers, but not too nice. You don’t want to get kicked off the jury because you were mean to one lawyer or too nice to the other lawyer.
Thanks for reading. I hope these tips will help you get on the jury the next time you are called for jury duty.