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Jury Selection Handbook
Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for law students and fledgling lawyers who are acquiring their jury selection skills, as well as veteran trial lawyers who want to refresh and expand their approaches. The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions. The book can be adopted for law school trial advocacy courses and clinics as well as continuing legal education seminars. Online appendices provide examples of jury questionnaires, motions and responses to motions, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.
The online appendices can be found at
“It was a pleasure reading Jury Selection Handbook by Professor Clark and Mr. O'Toole. To begin with, it is a thorough treatment of the subject. The 14 substantive chapters touch on virtually every facet of the jury selection process. . . . In addition, the text goes far beyond the rudiments and exposes the reader to advanced techniques. . . . I found it to be at once comprehensive, sophisticated, and practical. . . . this is the single best short volume that I have read on jury selection. It would be a valuable addition to the library of any law student interested in litigation, a neophyte trial attorney, or even a counsel with a middling level of experience.” — Edward J. Imwinkelried, Professor of Law Emeritus, UC Davis School of Law
“Living up to its 'handbook' label, the text aims toward comprehensive coverage of the process and providing both a legal and practical foundation. . . . Throughout, the authors call out good advice in clear and simple terms. . . . Perhaps the area where the book most differentiates itself is through the use of constant examples and in providing a wealth of additional information for use in classrooms and continuing legal education programs. . . . the book provides a foundation grounded in practice, but points toward the importance of some more advanced questions.” — Dr. Ken Broda-Bahm, Persuasive Litigator “Jury Selection Handbook is the most comprehensive analysis of jury selection in the marketplace and a 'must' read for every lawyer, regardless of experience. Ronald Clark and Thomas O’Toole are to be congratulated for their exhaustive discussion of every phase of voir dire, from its preparation, to the strategies behind successful voir dire, to the evaluation of jurors and to the legal tactics incidental to voir dire. The new lawyer will find comfort in the discussions on the basic rules and premises for jury selection; the veteran lawyer will enjoy the chapters on the subtleties and psychology behind voir dire. All will find the book a necessary addition to their legal library." — Judge Michael D. Marcus
The online appendices can be found at
“It was a pleasure reading Jury Selection Handbook by Professor Clark and Mr. O'Toole. To begin with, it is a thorough treatment of the subject. The 14 substantive chapters touch on virtually every facet of the jury selection process. . . . In addition, the text goes far beyond the rudiments and exposes the reader to advanced techniques. . . . I found it to be at once comprehensive, sophisticated, and practical. . . . this is the single best short volume that I have read on jury selection. It would be a valuable addition to the library of any law student interested in litigation, a neophyte trial attorney, or even a counsel with a middling level of experience.” — Edward J. Imwinkelried, Professor of Law Emeritus, UC Davis School of Law
“Living up to its 'handbook' label, the text aims toward comprehensive coverage of the process and providing both a legal and practical foundation. . . . Throughout, the authors call out good advice in clear and simple terms. . . . Perhaps the area where the book most differentiates itself is through the use of constant examples and in providing a wealth of additional information for use in classrooms and continuing legal education programs. . . . the book provides a foundation grounded in practice, but points toward the importance of some more advanced questions.” — Dr. Ken Broda-Bahm, Persuasive Litigator “Jury Selection Handbook is the most comprehensive analysis of jury selection in the marketplace and a 'must' read for every lawyer, regardless of experience. Ronald Clark and Thomas O’Toole are to be congratulated for their exhaustive discussion of every phase of voir dire, from its preparation, to the strategies behind successful voir dire, to the evaluation of jurors and to the legal tactics incidental to voir dire. The new lawyer will find comfort in the discussions on the basic rules and premises for jury selection; the veteran lawyer will enjoy the chapters on the subtleties and psychology behind voir dire. All will find the book a necessary addition to their legal library." — Judge Michael D. Marcus
350 pages, Kindle Edition
Published January 1, 2018
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March 28, 2018
Of all the portions of the trial, the part that I hated the most was jury selection. I had a keen sense of both how important it was and how inadequate I was to do a good job of it. I had not been practicing law very long before I decided that in most cases the trial is over when the judge says “Swear the jury.” If at that point you have the wrong jury, there is not much you can do—you’re not going to win. If, on the other hand, you have the right jury, there are many things you can do from that point forward to snatch defeat from the jaws of victory.
Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like "Jury Selection Handbook" back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.
"Jury Selection Handbook" is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.
One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.
The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:
Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.
***
A: No, I can’t be fair in this case. [A rape case].
Q: And why is that? A: Because the defendant raped my daughter.
I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:
Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?
I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”
One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.
For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?
Other than the foregoing quibbles, I found "Jury Selection Handbook" to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I'd put this book on my required reading list.
Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like "Jury Selection Handbook" back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.
"Jury Selection Handbook" is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.
One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.
The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:
Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.
***
A: No, I can’t be fair in this case. [A rape case].
Q: And why is that? A: Because the defendant raped my daughter.
I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:
Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?
I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”
One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.
For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?
Other than the foregoing quibbles, I found "Jury Selection Handbook" to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I'd put this book on my required reading list.
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