Exclusion vs. Inclusion

Aaron Broussard– Broussard & Hart- Lake Charles, LA

Jed Cain – Herman, Herman, & Katz- New Orleans, LA

This article is based on a talk I gave with Jed Cain at the world-famous Knoll CLE in Marksville on November 3. If you have never been, here are five good reasons to go next year: Cochon de lait, cracklins, smoked turkey, boudin, and an unlimited supply of deep-fried cinnamon rolls. (Seriously, unlimited). Oh, and the Louisiana Supreme Court and the Third Circuit who both attend every year.  

It may not be justified, but we feel confident and eager in most parts of trial – all except one. Voir dire. So, naturally that is what we chose to talk about.

I guess there are a few reasons I have never felt comfortable with jury selection. First, you get no real feedback. With a few exceptions, we really have no idea how the jurors we strike might have felt about our case by the end of trial.

Second, we all have those few jurors we totally misread throughout trial. For example, take the dreaded “Wilhelmina,” a lady I will never forget. I was thirty years old, mostly innocent, having never been seduced by a smiling, overly friendly juror only to be sliced-and-diced by her in deliberation room, when I was defenseless.

On the other hand, I had another juror we just knew was going to murder us. Every time the defense lawyer would talk, she would pick up her notepad and write as fast as she could. When plaintiff counsel stood up, she would lay the book down and look at us we like had orange suits on. Then, she was the foreman! Turns out every time she was writing, she was just writing down why the defense was wrong.

Another reason it’s harder to get comfy with jury selection is a lack of practice and experience. We can practice talking about our cases in opening and closing all we want, but it takes two to tango in jury selection.

Finally, everyone and their mama has a different opinion about how you should pick a jury. To make matters worse, there are ultra-successful trial lawyers with nearly opposite views, which brings me to the topic of our talk and this article: Exclusion vs. Inclusion.

When I talk about Exclusion vs Inclusion, I am referring to the mindset or the agenda of the trial lawyer during voir dire. Exclusion means to seek out people with prejudices or biases against our case and get them off our jury (side note: a bias can be favorable or unfavorable, whereas a prejudice is always unfavorable).  Inclusion starts with a belief that every potential juror wants to do what is right. The mindset or agenda is not to seek out people to exclude, but rather to look for reasons to include people on our jury.

A lawyer seeking to exclude will ask questions to encourage people the reveal a bias. After a potential juror confesses a negative bias, the excluding lawyer will typically ask a series of questions to “lock in” a cause challenge and try to get others to confess the same bias, so they can be removed in similar fashion.

A lawyer seeking to include will also ask questions to encourage people to share opinions and biases, but that is where the course changes. An including lawyer will seek to have an open, honest discussion with the panel about the stated opinion or feeling without an intent to exclude everyone who expresses something negative. It also means confessing and owning the weaknesses in your case. The purpose or goal is to start the first step of persuasion, which is to establish credibility. Some lawyers can get themes going and start to actually persuade jurors in their favor, with the jurors thinking it was all their idea.

(Like most times when people over-simplify the world and divide people into two groups, the descriptions above do not accurately or completely describe either method).

For our talk, me and Jed had a friendly debate. He took the exclusion side and I took inclusion. We both prefer the inclusion way of life and that is the one I will argue for here.

Before getting into the softer science, I will start with practical reasons I think it is better to include.

Four get up and four sit down: Let’s say you are gifted at getting people to expose their bias. You get four people struck for cause on your first panel who expressed some bias against lawsuits. In Louisiana, what are the odds that the next four people they call up are going to love lawsuits. The odds are you are going to replace the four you got rid of with four more that have similar views. The point is you better be able to sell your personal injury case to a conservative crowd or you should consider settling.

Who are really getting rid of? Are you getting rid of everyone with a bias or only everyone who will admit they have a bias? Some people are quiet in jury selection and loud in the back. Someone people do not like to speak in open court, but don’t mind yelling in a little room. Some people have biases and feelings they are not even aware of, but control how they feel and act at all times. (Ever been married?) Maybe it’s better to keep people on your jury who know themselves well enough to know they are biased and honest enough to admit it.

The rehab problem: If a judge sees you are skilled at “locking in” cause challenges, what will usually happen? The judge ain’t got no time for that. The judge is going to step in with those magic words: “If I tell you to follow the law and base your decision on the evidence, will you do that? And can you be fair and impartial?” To which the juror replies, “Sure judge, I already forget about all those bad feelings I have about lawsuits that this lawyer tricked me into saying I feel very strongly about.” This leads me to the doctrine of human consistency.

Humans desire to be consistent. (Influence: The Psychology of Persuasion, Dr. Robert Cialdini). After a juror states they do not see how they could be part of a million-dollar verdict, you can go one of two directions. You can get them to commit even further (for purposes of exclusin) or you can give them the opportunity to back out (crawfish) a little bit. If you get them to commit, but they end up on your jury, the human desire to be consistent with previous statements will work heavily against you in deliberations.  

Social media and iphones changed folks. Some say we must adjust with the times. These people preach that social media and ever-present internet access have polarized merica and shortened attention spans. Social media is a misguided hunt for human connection with so-called “friends.” If anything, social media has increased the value of real communication between real people in the same room, eyeball to eyeball (Yes, a Walter Sobchak reference).

Don’t underestimate the power of the dark side: I think sometimes we underestimate politically conservative jurors. I have seen several conservative jurors lead a jury to tremendous verdicts. Strong-willed, responsible looking conservatives will often end up as the foreman. The pendulum swings hard. A conservative juror will not hesitate to pour out a case they see as frivolous and will not be swayed by sympathy. But, if you can show a conservative juror you are part of the solution, that you and your client are the responsible, accountable ones, then they are likely to teach your opponent a lesson.  

The real reasons: Our reason for preferring the inclusion method is simple; that’s what we want to believe. We want to believe that no matter who is on our jury, we can win. (There are some limited exceptions, but that is what peremptory strikes are for).

I personally do not prefer a limited two-sided view of the world. I do not think it is productive to see people as heads-or-tails, conservatives-or-liberals, tort reformers-or-fair minded. People cannot be split up into As and Bs. Humans are more complex, more diverse, and more interesting than that. Just because a person identifies with some conservative principles does not mean they have to agree with all of them, but isn’t that how the media portrays our society?  You must be one or the other. The truth is we are more the same than we are different.      

For whom the bell tolls: Finally, inclusion is consistent with a theme that is present in almost all personal injury cases; No man is an island. At the end of every personal injury trial, we are trying to legally help jurors understand that it could easily be them sitting in the place of our client. We want jurors to care about the well-being of their fellow man and the safety of their loved ones, despite concerns over their insurance rates or being perceived as a runaway jury. Entering jury selection with a mindset that potential jurors are mostly good people and want to do right is more consistent with this theme than being a hammer looking for a conservative nail to hit.  

In closing, I reiterate that this is just an argument. There is no right or wrong answer. There are many, many successful trial lawyers around the country who preach and practice removing biased jurors as the primary objective of jury selection. I think the most important thing is to get enough experience to find your own tune and your own groove in voir dire. I am still looking for mine.

By Aaron Broussard and Jed Cain – Louisiana Advocates, January 2018

Contact Us at 337-439-2450 or fill out the form below.