We recently hosted members of the Japanese Media, through the U.S. State Department.  These individuals had come to the United States to learn more about our legal system.  They specifically requested to speak with a jury consultant in order to
learn more about how juries work in our country.  Japan recently established a mixed jury-judge system (6 jurors plus 3 judges) that hear criminal cases together and decide by majority vote. Our guests told us that Japan wanted to get its citizens involved in its legal system.  For more information, please check out the above link.     

Excuses about getting out of jury duty are everywhere.  At this point, I wouldn’t even be shocked to see excuses posted on a roadside billboard.  Most of us have probably heard from family or friends who proudly proclaimed that they got out of serving.  They then proceed to tell us what worked for them.  We see skits on television about avoiding jury service.  I even recently saw a performance by the Groundlings Comedy Troup that featured comedians offering outrageous excuses as to why they could not serve.  Why can’t I serve, your Honor?  Well, I am waiting for a UFO to pick me up this Thursday.  They are coming from very far away, so it’s too late to reschedule.  (At least it’s entertaining and original, and it worked for the Groundlings.)

Today, however, communications are very different than they were just 10-15 years ago because of the Internet and Social Media.  There are countless articles online that offer a variety of suggestions about how to get out of jury duty, serving as an encyclopedia of excuses that is available 24/7.  Websites ranging from credible news sources to blogs offer advice, pointers, personal experiences that worked and didn’t work for potential jurors.

This led me to wonder just how many potential jurors are looking to the Internet to find ways not to serve.  I recently surveyed 73 mock jurors from Los Angeles County.  These individuals were recruited to reflect the diverse demographic characteristics of jurors who serve in Los Angeles County Superior Courts.  We asked a coupe of questions: 

(1) Have you ever “made up” a reason why you could not serve as a juror in an attempt to get out of serving as a juror?

(2) Have you ever looked online for suggestions about getting out of jury service?

Of the 73 participants, 5, or approximately 7% admitted either making up an excuse or embellishing a reason why they could not serve.  None of the 73 said that they had ever looked online for a reason or suggestion to get out of service. 

Fortunately, 93% reported that they have never concocted a reason to get out of jury duty.  However, those who did had no problems successfully coming up with a reason on their own.  Wouldn’t it be interesting if Los Angeles County jurors looked to the Groundlings for excuses?

Remember the beginning of American Idol every year where countless individuals brag about their ability to sing, only to reveal that they have no singing talent whatsoever?  I’m confident that some of these individuals know that they can’t sing, but we Americans will sometimes do almost anything to get on television.  However, some of these contestants really seem shocked to learn that singing will never be their thing – ever!  They stand in shock.  They cry.  They proclaim that the judges will be sorry when they become huge singing stars.  What exactly is it with these people?  How did they get to this point in life with so little awareness of their actual abilities?  Don’t they have a clue?

Human nature is an amazing thing, and sometimes we blind ourselves to our true abilities.  If there is one thing we will always do, it is protect our self-esteem.  We all want to look good in front others.  Almost everyone feels that he or she is a good, reasonable person.  We want to see ourselves that way, and we desperately want others to see us that way.  We regularly see this in every jury selection.  Here, members of the community gather in a formal and unfamiliar environment.  They are asked whether they can be fair and impartial in order to meet their civic duties.  These questions guide and lead members of the venire to say “yes.”  Once again, we want to seem fair and impartial, especially in front of an authority figure (the judge) and a room full of individuals we don’t know.  Some prospective jurors will respond “yes,” even though we know they can’t be fair under any circumstance in our case.  This is the equivalent of one of those early contestants on American Idol bragging about her singing abilities, only to croak out a horrible rendition of a Whitney Houston song.     

I’ve seen many, many instances.  One recent instance that stands out is a product liability case where a young man was gravely injured.  His injuries were so severe that one could not help but feel for him.  Because this happened in a relatively small town, the judge did not automatically excuse members of the venire who knew the plaintiff or his family.  One eager individual in the jury pool, whom we will call Sarah, walked in and openly acknowledged the plaintiff and his mother.  Sarah greeted them with a “hello” as she walked into the courtroom.  During questioning by plaintiff’s attorney, Sarah downplayed any involvement with the family and was adamant that she could be fair because “she did not know both sides yet.”  She stressed that she would be “open” until she heard all of the “facts.”  She said she had not yet made up her mind.  Sound familiar?   

Now, it was our turn to speak with Sarah.  We had very few peremptory strikes left, so we wanted to preserve them as best as we could.  Had we just moved into questioning about her ability to be fair and impartial, we would have gotten nowhere.  Instead, we opened her up.  I told my client just to get her to talk.  Ask her broad questions about how she knows the plaintiff’s family.  When does she socialize with them?  What has she discussed with them about the case?  My client interviewed her beautifully, in a manner that I call “talk show style.”  It turned out that Sarah was good friends with the plaintiff’s mother.  Sarah had even been at the hospital on the day of the injury.  She had spoken at length with the plaintiff’s family about the case, and she socialized often with the family.  She ended her questioning by emphasizing she could be completely fair to the defense.  Sarah wanted on the jury, badly. 

Was this a case of no insight, of someone just wanting to be viewed as a fair and reasonable person, or did she want to be on the jury to take care of the plaintiff?  In the end, it really didn’t matter.  Everyone in the courtroom saw what we see at home when we watch an American Idol contestant painfully butcher a song.  Sarah was clearly wrong about her ability to be fair and impartial, and everyone in that courtroom knew it.  Sarah was dismissed for cause.

Sometimes jurors may have a secondary gain to serve as a juror, but more often than that, sometimes they just can’t really see that they are not a good fit for a particular case.  Rather than closing these prospective jurors up with close-ended questions like, “can you be fair,” open them up with open-ended questions.  Get them talking.  Think “Oprah,” by asking questions in a talk show format that make the prospective juror talk.  Start broadly, and then get more specific.  This way, whether that individual sees it or not, his inability to be fair will be crystal clear when you move for cause. 

Just like American Idol, sometimes song choice is key.  Just because a juror can’t be fair in one case does not mean she couldn’t be a fair and impartial juror in another case.

By now, most of us have seen the ubiquitous xtra normal videos that have been sweeping the internet.  If you are anything like me, you receive one in your inbox regularly.  Each one is a parody of something new.  People who buy expensive cars?  Yep, they are covered.  What about people who insist upon buying iPhones over other smartphones?  Yep, iPhone owners have fallen victim to xtra normal in a particularly brutal video.  What about attorneys?  They are often an easy target.  Well, it should come as no surprise that there is a video poking fun of people who want to go to law school.  What's more, this is an extremely popular video with thousands of views.  In a society where communications are so rapid and where the internet can create a celebrity in days (e.g., think "Golden Voice), what kind of impact do videos such as these have on juror perceptions of attorneys?  It is my observation that videos such as the one above simply support long standing stereotypes of attorneys.  In graduate school, I conducted a research study that looked at attorney voir dire styles and their impact on juror verdicts.  I found that jurors liked attorneys who were somewhat ingratiating.  This helped build rapport and held juror interest during the voir dire process.  However, attorneys who were very ingratiating seemed to "flick a switch" with the jurors that resulted in jurors being more suspicious of the highly ingratiating attorney.  The jurors viewed the highly ingratiating attorney as being "fake" and manipulative, and this appeared to prime negative stereotypes of attorneys.  So, most jurors were willing to forgive stereotypes when they believed the attorney was being personable and trying to be relatable.  However, when jurors believed the attorney was not being genuine, they were more apt to assign negative lawyer stereotypes to that lawyer.  Therefore, by being your genuinely personable self, you can build trust with the jury and overcome some of these pervasive stereotypes with most jurors.  You can even use videos such as the one above to your favor by referring to them during voir dire.  "Many of us have seen those xtra normal videos with people talking in monotonous voices, and to my surprise, there was one that was negative about lawyers and law students.  It seems that negative lawyer stereotypes have taken to the internet!  Who here tends to not look to favorably upon attorneys?  I'm assuming none of you posted a video like that?"  By addressing these in voir dire, you get a chance to get a chuckle out of many jurors while also screening the jury pool for those with strongly negative attitudes or experiences with attorneys.  What is that saying?  When life gives you lemons like the xtra normal video, why not make lemonade?