Stop picking your jury

Welcome to the Tort Report

Whether you're a solo PI with your face on a billboard or a managing partner running mass tort cases across six states: if you fight for plaintiffs, you belong here.

I'm Adam Ramirez, former managing editor at Bloomberg Law and Forbes. I covered trials at the Miami Herald and the Dallas Morning News and clerked for a federal judge after law school. The plaintiff bar is my beat.

My favorite part of two years clerking in federal court was voir dire.

Not the verdicts. Jury selection. From a few feet off the bench you hear what people will say when a judge asks them to be honest, and you watch lawyers make the same quiet mistake over and over. They lose the case before a single witness is sworn, and they never feel it happen.

It's almost never the juror they failed to win. It's the juror they let on. The one who never should have made it into the box, sitting there because the lawyer was too busy hunting for friends to notice the enemy.

That's the thing nobody tells you. We call it jury selection. It's the opposite. You don't pick a jury. You get rid of one.

It's not selection. It's subtraction.

Stop shopping for jurors who'll like you. Start hunting for the ones who can never hear the case your way. Then get them off the panel.

The best trial lawyers treat it like data. They run jury studies before a big case and learn that of the fifty questions they could ask, four or five actually predict a verdict. The rest is noise. They don't use those few to win the room.

They use them to find the jurors they've already lost, and remove them before opening.

Megan Burns learned it from the other side

She came to it the hard way, from the other table. Before she filed her first personal injury complaint, Megan Burns spent close to a decade as a San Francisco public defender and tried nearly fifty cases to verdict. You don't get fifty trials in civil work in a lifetime. She had them before she'd ever stood up for a plaintiff.

It shows in how she picks a jury. In one of two top-50 verdicts she's posted in California, the smartest move she made in selection was to cut a whole line of questioning before she ever stood up. The answers would have cost her more than they could tell her. The best voir dire question, she says, is the one you never ask. Read Megan on picking a jury.

Find your enemy without lighting up your friends

Here's the move that takes craft. You have to find the jurors who are bad for you without showing the other side which ones are good for you. Build a question where only ten or twenty percent of the panel answers the way that worries you. That small group is your strike list.

Most plaintiff lawyers do the opposite. They ask, "Who thinks jury verdicts are too high?" It backfires. Almost everyone nods, including jurors who'd have been good for you, and the few who don't just outed themselves as your most pro-plaintiff people, for the defense to strike. Flip it. Ask who'd support a law capping what juries can award. Only the true believers raise a hand, and those are the ones you want gone.

You are not building the jury you want. You are removing the one you can't survive.

One more thing.

Some jury selection is solemn. Most of it is people trying to get sent home.

The all-time champion is, fittingly, fictional. On 30 Rock, Liz Lemon tries to get out of jury duty by showing up to voir dire in a full Princess Leia costume and telling the judge it wouldn't be fair for her to serve, because she's a hologram. Watch it. It holds up. It does not work. It never does.

That has never stopped anyone from trying it for real. A Denver woman named Susan Cole showed up to jury selection in curlers and mismatched socks, giving deliberately disjointed answers until the court let her go. It worked. Then she went on a local radio show to brag about beating the system, which is how she ended up charged with perjury and learned the bit only plays on TV.

The ones lawyers trade at the bar are somehow better. The man who would serve only if everyone in the courtroom wore a colander, because his faith holds that judgment belongs to a giant bowl of spaghetti. Dismissed, tragically.

And my favorite, because it's about us: I only trust one lawyer, and he's dead.

You've got a better one. I know you do. Hit reply and send me the strangest thing you've ever heard in voir dire. The wilder the excuse, the better. Best one runs in a future issue.

~ Adam

Quote of the week:

“The plaintiff's bar is going to split over the next decade into firms that can try cases and firms that cannot.”

- Megan T. Burns, former San Francisco public defender, on where the trial bar is headed. Read Megan on picking a jury.