You wouldn’t think much, but they are a perfect example of an important aspect of your appearance and role at trial. That assertion probably caught your attention.

I’m not the really smart one in our family. That distinction belongs to Anita, who is the Phi Beta Kappa, Ph.D. in our family. And it is that PBK designation that is the link to this column. As a member of PBK she receives a publication called the American Scholar with all these really brainy and intellectual discourses on scholarly things: usually above my pay grade. But, a recent cover story referring to the Lewinsky-Clinton scandal was right in my attention zone.

The set up paragraphs to the article detailed how Lewinsky was taken to a hotel for some long hours of interrogation and how she began to talk about maybe she should have a lawyer and then began to go beyond that and ask for her lawyer. Then came the description of the FBI agent’s attempt to locate her lawyer and the author’s description of that attempt as sorely lacking in enthusiasm. About that point I sensed that this article was going to be less than complimentary of the FBI, the Starr legal team and the investigation of Mr. Clinton and the ensuing impeachment proceedings. Thus my interest in the article waned having sensed a discourse that varied from my mindset about Mr. Clinton. And then, and then….. the epiphany occurred: my mental reaction was just like that of a juror. (If your location on the political spectrum is causing you distress because of my use of Mr. Clinton, substitute an image of you reading an article complimentary to Karl Rove and George Bush and you will achieve the same mental reaction about two to three paragraphs into the article.)

This is a situation counsel representing plaintiffs face in every jury selection when dealing with tort reform jurors. It is the same problem faced by counsel defending corporations when they are doing voir dire and face Walmart haters on the jury panel. It is how to deal with those predispositions, those life time accretions of viewpoints, bias, prejudice, prejudgments that we all carry. The fancy name for these is heuristics and dealing with them probably more than anything else will determine your success or failure at trial. Dealing with mindsets in the context of a trial is a major issue and not one that can be dealt with in depth in a column of this length. What we can do in a column of this nature is to highlight a few suggestions and heighten your sensitivity to having to deal with them. Each trial lawyer has their own unique persona and you have to find ways that work within your persona for dealing with a topic like this, which is going to involve dealing with some of the most personal, private and emotionally charged feelings that a juror might have. Here are five suggestions.

That was number one: you have to think about how you (not me) can discuss an emotionally charged issue with another person. You, with your persona, your abilities, your verbal facility, your body language,  your eye contact and your voice inflection. Get the message? At the beginning “it is about you” and your skills and you have to be able to objectively dissect what you can and cannot do with the skills with which you have been blessed or cursed.

Number two was in there also: discussion of an emotionally charged issue with another human being. This is close to violating the rule taught to you by your Mom and Dad: “Don’t ever discuss money, religion or politics with anyone.” So here you are Mr. or Ms defense counsel about to discuss feelings about corporations with a Walmart hater and get them excused for cause. You can well say to me it can’t happen. When you sense that such a feeling runs so deep your tactic is to get it out in spades and then suggest “Maybe Mrs. Jones, this isn’t a case that would be good for you. Maybe another case where a corporation isn’t involved would be better for you. If you were in my clients shoes would you feel uncomfortable with you on the jury?” The bottom line is you can’t do this kind of difficult discussion about emotionally charged mindsets on the fly in the heat of voir dire. It has to be thought out. It has to be scripted out. It has to be practiced. Do a mock voir dire as you prepare for trial and have your jury consultant “salt” the mock jurors with some of the mind sets that will be most troubling to your case and get a feel for how to work with those feelings, how to expose them and how to respond and how to move those jurors to cause challenges so you don’t have to burn preemptory strikes on them. The three most important questions I ask in voir dire are: 1. Tell my about the core of who you are, what is important to you. 2. Tell what it is about you that would make you a good juror. 3. Tell what it is about you that might make you a not so good juror? The answers to these questions is where predispositions and emotionally charged mindsets start to leak out.

Number three was: develop your “cause challenge” skills set.

Number four is your “Plan B Thinking.” If you don’t try cases with Plan B Thinking (PBT) you aren’t really trying cases. The most important thinking you will ever do about a trial is Plan B Thinking, What If … Thinking. If you ever have a trial where it all went according to Plan A, you should charge a fee because that case could have been tried by your secretary, paralegal, legal assistant or you could have thrown the trial folders into court and it could have tried itself. So Plan A was to get that Walmart hater struck for cause but the judge wouldn’t do that. Then Plan B was to use a preemptory strike but there were those other three who were worse and she made it onto the final jury. Now we're on Plan C for how to deal with her thinking in the evidence and argument phases of the trial. Now we have to make our corporate client different from the Walmarts and Goldman Sachs (to use today’s news headline) of the world. Now we need in opening and closing and in direct and cross to make the point that this corporation is different from others and can thus be judged differently and viewed differently, not with the predispositions that might have come into the courtroom with us.

Number five: do indirectly what you can’t do directly. As soon as we have the jury panel list we have our paralegals do internet research on everyone on the panel. By doing that in a case in which I was defending a country government we found a letter on the Walmart website from a local citizen criticizing the county for a decision to allow the building of a Walmart in that community. The juror did not respond to general questioning about being critical of the county government nor to more pointed questioning designed to allow her to respond. We finally had to go back in chambers and show the juror the letter before she admitted her negative feelings.

So there you are: four quick suggestions for dealing with predispositions of jurors: 1. Know and heal thyself; 2. Practice voir dire the same way you might practice an opening or closing as part of a mock jury exercise; 3. Develop and hone your cause challenges skill set; 4. Develop Plan C for differentiating your client from the troubling disposition mindset you fear most in the case and 5. Find indirectly through the internet what might be impossible to elicit in actual questioning.

LCA Fellow Ric Gass is a partner in the Milwaukee office of Gass Weber Mullins, LLC. He may be contacted at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it