St. Louis lawyer James W. Jeans has tried more than 250 cases and lectured widely on trial tactics. His approach to jury selection, though, was most influenced by his first boyhood job selling Liberty magazine door to door. Young Jeans knew his prospects soon after someone answered his knock. A slammed door meant no sale, while a smiling face showed a willingness to hear his pitch.

Lawyers must be vigilant for similar signs of rejection and receptivity. "You want as few slammers and as many smilers as possible on your jury," says Jeans, a founder of the National Institute of Trial Advocacy.

The term voir dire means "to see, to speak." For American lawyers, though, the French term for jury selection could also be translated as "make or break."

The few hours after the first potential juror is sworn in for questioning may determine how the trial ends, days or weeks later. Veteran Chicago trial lawyer Manny Sanchez puts it this way: "I don't believe a case can be won during voir dire. But it can be lost."

TAKING YOUR BEST SHOT

As a practical matter, the voir dire process forces lawyers to concentrate on striking the slammers, while hoping some smilers survive their opponents' scrutiny. First, the judge will winnow some from the venire, sending a few home on hardship grounds and excusing others for cause, including evidence of bias. Each side may then exercise a limited number of peremptory challenges (three, in federal civil trials) to "unpick" a few more.

In either case, the affected party should save its peremptories by moving to strike such a person for cause. The court will excuse jury candidates who have "obviously prejudged the matter or could not be fair with regard to either the plaintiff or defendant," says Clifford Scott Green, a senior U.S. district judge in Philadelphia. In an auto case, for example, Green is apt to send home a venire member who has lost a loved one in a car crash.

It's crucial to bear in mind, however, that prejudices may be far more subtle, but just as damning to one side. Each prospective juror's views of the litigants, lawyers and issues in a weeklong trial are shaped by a lifetime of experiences, notes Jeffrey T. Frederick, Ph.D., a jury consultant at the National Legal Research Group in Charlottesville, Va.

A person's childhood, schooling, work, family life, moral values, socioeconomic status, and political and religious orientation all influence his or her verdict. "It is this total package that jurors bring to trial," Frederick notes. "Jurors are not simply empty vessels into which lawyers [pour] information and arguments. They are active information processors who integrate the evidence, arguments and judicial instructions in light of who they are."

Some lawyers complain that time limits and procedural constraints make it difficult for parties to probe for such deep-seated biases. And in some jurisdictions, the court commandeers the process, asking prospective jurors boilerplate questions about their backgrounds and beliefs, with lawyers limited to submitting written questions or conducting brief follow-ups.

However, U.S. District Judge J. Thomas Marten has observed that some lawyers don't make good use of the time they do have in voir dire. "Lawyers' wounds are self-inflicted," he says. "Instead of asking questions about bias, some lawyers want to lecture [prospective jurors] or instruct them on the law. Well, jurors don't want a lecture, and instructing on the law is the province of the court." Veteran trial lawyers advise against wasting precious minutes in voir dire by attempting to change people's long- held opinions. Instead, they say, a lawyer's questioning should focus on the most worrisome aspects of a case. "I ask about the things that scare me the most," says Randi McGinn of Albuquerque, N.M. "If I don't talk about it in voir dire, they're still going to talk about it during deliberations."

When she represents medical malpractice plaintiffs, Kathleen Zellner of Naperville, Ill., concentrates on dethroning jury candidates who would put the defendant doctor on a pedestal. She deals with the issue directly, probing prospective jurors about their own experiences with doctors and hospitals, and also asks whether they believe that large verdicts drive up medical insurance premiums.

Knowing that she doesn't have time to probe all relevant areas, though, Zellner concludes with a somewhat metaphysical question: "If you were my client, what would you want me to know about someone like you on the jury?"

This catch-all query sometimes prompts additional disclosures about relevant experiences, biases and beliefs, says Zellner. Even if it doesn't, though, having prospective jurors imagine themselves in the party's place emphasizes that the case involves real people like themselves, who deserve full, fair and impartial consideration.

MAKE THEM FEEL AT HOME

Although the stakes for both sides are high during jury selection, lawyers are well-advised to keep in mind that they are not cross-examining adverse witnesses. "Voir dire should not be an interrogation or deposition," says Sheila Anderson, a practicing trial lawyer who teaches litigation skills at the University of Baltimore Law School. "I try to make [prospective] jurors feel like we're just sitting in the living room and having a conversation."

Voir dire is the beginning of a relationship between lawyers and the jury that will last for the days or weeks of trial, and attorneys won't get a second chance to make a good first impression. "I try to be as pleasant and personable and human as possible," says Anderson, who advises lawyers to keep their tone conversational and their questions nonconfrontational throughout voir dire.

To encourage candor, for example, attorneys should avoid emotionally charged terms like "prejudice" and "bias" in their questions. "When you use the word 'prejudice' in a question, you know right away that you're not going to get an affirmative response," says Jeans.

Instead, lawyers should assure panelists that everyone has ideas or relationships that would make it difficult to serve on particular juries. "You have to create an atmosphere in which [jury candidates] are willing to share information with you, regardless of how preposterous or off-the-wall they may sound," says Jeans. "They have to believe that you're not going to say 'Shame on you' when they express bias."

Prospective jurors' body language during voir dire may be just as important as their verbal responses. Anderson, who calls herself an intuitive, not scientific, jury selector, says she wants those she can connect with on a personal level. She looks for such nonverbal cues as eye contact and voice inflection, which can signal whether the person is enjoying their conversation. "I am something of a novelty in most courts," says Anderson. "In many jurisdictions, jurors haven't had the opportunity to observe female, African-American attorneys on the front lines." Still, she says she doesn't spend her limited time in voir dire probing the deep recesses of prospective jurors' racial attitudes. "I'm not a courtroom psychologist or sociologist," Anderson says. "If I were to analyze every issue in every case from a racial perspective, I'd probably fail on a number of different levels. Before even getting to the merits of the case, jurors have to be willing to listen to me."

Richard looks for jurors who, like him, approach problems with a more rational than emotional bent. "I use logic, and that's what I appeal to [in juries]," he says.  Like Anderson, Richard doesn't want someone he can't connect with during the voir dire examination. "It's the same sense you might get at a party, or a date, that you're just not mixing well with this person," he says.

Zellner counsels her colleagues not to let their tendency to talk get in the way of looking at and listening to jury candidates. "A lot of attorneys are nervous talkers when they get in front of a group," she says, adding that they should spend less time talking and more time studying facial expressions and body language.

Zellner once represented a criminal defendant with a drinking problem, charged with an aggravated assault allegedly committed when he was drunk. The judge asked the venire whether they would have any problems dealing with a case where alcoholism might be an issue.

No one raised a hand, but Zellner noticed that the question left one woman with a puzzled frown. When the lawyer asked the woman about this reaction, she acknowledged traumatic memories of her alcoholic father, which might cloud her judgment in the case. The judge excused her from jury duty.

CLASHING CONCERNS

Naturally, plaintiffs and defendants have different targets for their peremptory challenges. "I don't like mean, selfish, stingy people," confesses McGinn of Albuquerque. She says that she and her fellow plaintiffs lawyers have to ensure that corporate and insurance industry "propaganda" about lawsuit abuse doesn't taint deliberations. McGinn addresses the issue head-on, asking prospective jurors whether they believe too many lawsuits are filed, or whether they think it's worse to award too little or too much money to an injured party.

Before recently joining a plaintiffs medical malpractice firm, Anderson defended personal injury cases as a Pittsburgh city attorney, and later as counsel for an insurance carrier. As a defense lawyer, she tried to unseat potential jurors who harbored "open contempt against the city, insurance companies or corporate America."

Anderson also sought people with the mental stamina to keep their minds open after the plaintiffs' case closed. "I wanted people with the patience to wait a week to hear my side of the story."

Now, she says, "I'm looking for folks who are involved and intrigued by the whole process. Obviously, I don't want jurors who seem bored during jury selection."

Chicago's Sanchez, who does defense work, says the defense must remain on guard against panelists likely to sign off on a runaway verdict. "I do not want jurors who don't understand or appreciate the value of money."

For example, those used to receiving unemployment or workers' compensation or public assistance may have an entitlement attitude about money, he says. "The more a person is aligned to a white-collar kind of employment, and the longer they've been in that business, the more impressed I am."

Along those lines, Chicago defense lawyer E. Michael Kelly says, "Solid job records are the best barometer for the defense." But he cautions that those who play with other people's money at work may engage in the same spendthrift behavior in the jury room. "I steer clear of stock traders and people from the Board of Trade," he says. "Anyone who knows a pork belly from a soybean future is not getting on my jury."

Voir dire procedures vary among federal and state courts, but judges nationwide have taken more control over the process in recent years, to the general annoyance of trial lawyers. "When I first started practicing 25 years ago, it wasn't unusual in a big case for jury selection to last three or four days," says Pasadena, Calif., plaintiffs' lawyer Daniel Stormer. "Now, you get half a day." In most of his federal trials, Stormer adds, the judges conduct nearly all of the voir dire questioning themselves.

"Some judges will literally defy you to ask a question," Kelly complains, or they will impose "ridiculous" time limits on the parties' voir dire. When dealing with impatient judges, lawyers should push back by requesting a reasonable time for follow-up questioning. If this motion is denied, lawyers should be prepared to submit written questions for the judge to ask.

Kelly says he also resents judicial attempts to rehabilitate jury candidates who have already confessed their bias in open court. "It's meaningless for a judge to ask, 'Well, can't you still be fair?' What are they supposed to say?"

Lawyers should object and request sidebar conferences to counter such interference, counsels Kelly. "You're like [basketball coach] Al McGuire arguing with the ref. You're not really arguing about that call; you're trying to win the next one."

Chicago trial lawyer Kelly might find a friend in Philadelphia. In civil cases, Judge Green asks the venire a standard set of questions, and rules on motions to strike or other contested matters. He then leaves his courtroom to the lawyers to ask their questions, with his deputy clerk keeping track of each side's peremptory challenges.

Unlike many federal judges, Green doesn't set time limits or restrict the number of questions. "Basically, lawyers use their own good judgment," he says.

Marten, the federal judge in Wichita, Kan., is also flexible on voir dire procedure. Four years ago, he started asking lawyers to give their full opening statements to the jury pool before jury selection. He says he has found that reversing the sequence makes jury selection more expeditious for the court, effective for the lawyers, and educational for the venire.

Allowing the lawyers to lay out their case beforehand actually shortens jury selection, says Marten. "They can refer back to their opening statements, and it gets [jury candidates] into a thinking mode and makes them more responsive to questions."

An important side benefit is that the citizens who are not picked for jury duty leave the courthouse with more insight about the judicial process, says Marten. Excused venire members "don't feel that they've wasted their time. They can at least tell their friends and family that they've participated in the trial and heard what the case is about."

KEEPING IT REAL

Lawyers are not the only people making selections during voir dire.

"While you're picking a jury, they're picking a lawyer," says James W. McElhaney, a Case Western Reserve law professor and author of the ABA Journal's Litigation column.

Jurors form opinions about lawyers on several bases, says McElhaney, "particularly how we sound.... The more guarded, reticent, judgmental and official you sound, the less likely they are to trust you.

"You have to be open and receptive and nonjudgmental about them," he advises trial lawyers. "If you want them to like you, you've got to like them. And if you don't like the rich variety of people we have in this country, you ought to find another line of work."

Voir dire is a "critical opportunity to develop rapport with the jury, and is the beginning point of [the lawyer's] credibility," says Tallahassee trial lawyer Richard. "You need to understand who you are, and not try to be someone else."

Dan Stormer follows the same dictum: "I act in the courtroom like I act outside. I'm not a smooth guy, or an exceptionally articulate guy, but I'm respectful and honest and don't hide the ball," he says.

And for Manny Sanchez, voir dire provides a regular reminder of why he loves being a trial lawyer. "The practice of law is not about depositions or summary judgment motions, it's about putting yourself in front of 12 people," he says. "It starts as soon as the venire comes in the courtroom, and it doesn't end until the last word in closing."

SEEING THROUGH STEREOTYPES

Striking or seeking jurors on the basis of race, ethnicity, religion or gender was once a venerable voir dire tactic. In a 1936 magazine article, Clarence Darrow felt free to share his own jury selection stereotypes. Women are "puffed up with importance" in the jury box, wrote the criminal defense legend, with the pro-prosecution tendency to sweep society clean—"leav[ing] no speck on the floor or under the bed, or in the darkest corners of life."

To strike an "emotional, kindly and sympathetic" Irishman would be an act of malpractice for the defense, Darrow explained, while a Presbyterian is "as cold as the grave" and must be rejected "with the fewest possible words before he contaminates the others."

"I have never experimented with Christian Scientists," Darrow confessed. "They are much too serious for me."

In Batson v. Kentucky, 106 S. Ct. 1712 (1986), the U.S. Supreme Court signaled its displeasure with prejudiced peremptories, holding that the equal protection clause bars prosecutors from race-based jury strikes. The high court has since extended Batson to bar racially motivated peremptory challenges by criminal defense counsel, State v. McCollum, 112 S. Ct. 2348 (1992), and civil trial attorneys, Edmonson v. Leesville Concrete Co., 111 S. Ct. 1859 (1991). In J.E.B. v. Alabama, 114 S. Ct. 1419 (1994), the court ruled that the 14th Amendment prohibits peremptories based solely on gender, or assumptions that men or women would be biased in particular cases. Lower courts have applied Batson to bar jury strikes based on religion.

Under Batson, if a party makes a prima facie case of prohibited discrimination, the other side must offer a nondiscriminatory basis for its suspicious jury strikes. The judge then decides whether the explanation is bona fide or bogus.

Batson challenges are more common in criminal than civil trials, but the issue arises in discrimination cases or other racially sensitive matters, observes U.S. District Judge Clifford Scott Green. In his own courtroom, says Green, "Most lawyers don't seem to intentionally strike black jurors—but maybe that's because I'm a black judge."

Most challenged jury strikes easily survive judicial scrutiny, concedes J. Thomas Marten, a federal district judge in Wichita, Kan. "Except in the most egregious case, lawyers can almost always come up with a racially neutral explanation, and you have to accept it at face value unless it flies in the face of everything you know," he says.

Whether or not lawyers can get away with it, it's seldom smart to rely on racial, ethnic or other broad demographic stereotypes in jury selection. "Too many people act outside the box," Marten notes. "Do all blacks award big damages? Do all union members sympathize with the little guy? I don't think so."

GET IT FROM AN EXPERT

The ABA's General Practice Section has published a jury selection guide by Jeffrey T. Frederick, Ph.D., a nationally recognized trial consultant and director of jury research at the National Legal Research Group in Charlottesville, Va.

In Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury, (1995, 247pp.), Frederick discusses federal and state jury selection procedures, juror questionnaires, preparing and conducting voir dire, Batson issues and other common jury-selection problems, as well as strategies for cause and peremptory challenges.

The book is available for $89.95—$79.95 for General Practice Section members—by calling 800/285-2221, or by ordering online at www.abanet.org/abapubs.

William C. Smith is a lawyer and legal journalist in Narberth, Pa.