SAMPLE TRIAL ADVOCACY ARTICLE FROM
TRIAL THEATER.COM!
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“How to Increase Your Number of
Peremptory Strikes During Jury Selection”
WANT TO DOUBLE YOUR NUMBER OF STRIKES DURING JURY SELECTION?
By Elliott Wilcox
Imagine that you’re being audited by the
Internal Revenue Service and need to hire
an accountant.
Since this is such an
important decision, you’re going to do a
diligent search for the most qualified
accountant in your area. You’ll probably
pick up the Yellow Pages, look for the
accountant with the biggest ad, preferably a
full-color advertisement on the back of the
book, and immediately schedule your initial
consultation. (What? That’s not how you
hire someone to perform a critical
professional service?!? You’d base your
decision on word-of-mouth reputation and
the recommendations of your colleagues?
Huh… That’s weird.) Walking into his
office, you drop two boxes of documents
and receipts onto his desk and say, “I’m
trusting you with the financial security of
my family. I need you to make sure that this
audit goes smoothly and keep me out of
trouble. Can you do it?”
If he paused for a moment before telling
you, “No problem… I think I’m up to the
task,” how would you react? Would you
leave the boxes on his desk and say,
“Thanks! Let me know how the audit
goes?” Or would you grab the boxes and
run?
Now imagine for a moment that you’re
going to the hospital for a minor surgical
operation. Moments before they’re about
to begin the operation, you hear the doctor
tell the nurse, “I’m pretty sure I can do this!”
How would you react? Would you relax,
breath deeply, and wait for the surgery to
begin? “After all,” you’d think, “it’s only
minor surgery — what’s the worst that could
happen?”
Probably not, right? Chances are you’d
probably jump up from the operating table,
rip the IV from your arm, and bolt out of
the room.
You’d never accept equivocal
answers from the people
entrusted with safeguarding
your property or your life. Even though it’s only money
and only minor surgery, you’d
immediately demand a
different accountant and a
different doctor, because your
life is too important to risk on
someone who’s “pretty sure”
he can do the job.
Don’t let just anyone sit in these chairs!
The same thing is true in the
courtroom.
During trial, jurors will be entrusted with
safeguarding your client’s money or liberty.
To do that, they’ll need to be fair, and
they’ll need to follow the law. Yet how
many times have you had a juror tell you, “I
think I can follow the law?” or “I’m pretty sure
I can be fair?”
Usually, these types of responses are just a
juror’s honest (albeit conversationally
casual) reaction to your questions. It
doesn’t necessarily mean the juror won’t be
fair, but it’s no guarantee that he will be fair,
either. Under the law, these types of
answers are considered “equivocal,” which
means that either you or your opponent
may now be able to strike him for cause
by showing the judge that the juror’s
equivocal answer raises a reasonable doubt
about his ability to be fair or to follow the
law.
Getting rid of a juror for cause allows you
to use your peremptory strike against
another witness, so in reality, a cause
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“Getting rid of a
juror for cause
allows you to use
your peremptory
strike against
another witness, so
in reality, a cause
challenge is actually
worth two strikes.”
SAMPLE TRIAL ADVOCACY ARTICLE FROM
TRIAL THEATER.COM!
challenge is actually worth two strikes. That’s why equivocal
answers can be dangerous. A single equivocal answer may
give your opponent all the ammunition she needs to strike
one of your favorable jurors for cause, saving her precious
peremptory strikes to get rid of additional jurors who may be
persuaded by your case.
What do you do when a potentially favorable juror gives you
an equivocal answer?
Many lawyers try to shove an unequivocal answer down the
juror’s throat by “rehabilitating” the jurors. (I’ve been
guilty of this in the past). Here’s a typical scenario:
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Sample 1:
Lawyer: Ms. Jones, can you be fair in this case?
Juror: Um, I think I can.
Lawyer: Ms. Jones, can you think of any reason why
you couldn’t be fair in this case?
Juror: No, there’s no reason I wouldn’t be fair.
Sample 2:
Lawyer: Ms. Jones, can you be fair in this case?
Lawyer: Ms. Jones, can you be fair in this case?
Juror: Um, I think I can.
Juror: Um, I think I can.
Lawyer: Ms. Jones, what concerns do you have about
your ability to be fair in this case?
Lawyer: Ms. Jones, in the courtroom, the law isn’t
really set up to deal with “I think I can” type answers.
We like to have more definite answers. Just imagine
getting on a plane and the pilot says, “I think I can land
this plane safely.” Obviously, you’d have some concerns
about whether or not you should fly with him. You’d
want a definite answer. Can you give me a more
definite answer, Ms. Jones? Can you be fair in this
case?
Juror: I can’t think of any reason why I wouldn’t be
fair.
By asking the follow-up question, you can save this juror
from being improperly stricken for cause, forcing your
opponent to use one of her limited peremptory strikes. In
the courtroom, you only get one chance to hear from the
people who will ultimately decide your client’s fate. Hopefully this tip will help you make the most of it!.
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Juror: Yes, I can be fair.
The danger in this type of “rehabilitation” is that the court
may still have a doubt about the juror’s ability to be fair. If
the judge thinks that the witness’s “Yes” response was merely
coerced by your questioning, the witness will still be stricken
for cause.
Instead, you need to follow up and let the record reflect how
the juror truly feels. One of the best ways to do this is by
following up with an open-ended question asking the juror to
elaborate on her answer. Here are two examples:
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