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AUGUST 2013 NEWSLETTER - Cohen Article
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Communication and Trial Practice Tips for the Woman Lawyer

Myths and Realities about Juries

 by Cynthia Cohen, Ph.D.

Myths about jury selection are perpetuated by limited knowledge. Following are a few common myths and realities about juries.

  • Myth: A jury of your peers. Reality: It is nearly impossible to have a jury of your client’s peers. However, jurors most similar to your client often are more critical of your client. A mother of a two-year-old injured by an exploding bottle in a product liability case is more harshly judged by another mother, especially regarding precautionary measures, such as lack of childproof locks on cabinets.
  • Myth: There is no voir dire in Federal Court. Reality: The judge voir dires jurors from submitted questions from the trial lawyers. Most judges give each side 30 minutes (and more if the trial lawyers ask) for attorney voir dire. Judge Drummond says, “Don’t let the judge cut you out.”
  • Myth: A juror smiling during your voir dire likes your case. Reality: Some jurors smile with both sides. Be wary of the stealth juror who hides opinions and smiles because they want to vote against you.
  • Myth: Jurors recognize their own bias. Reality: Everyone sees the world differently and those with high emotional intelligence can take another view, perspective or empathize. Jurors with a low emotional intelligence have a harder time being in someone else’s shoes and understanding others’ perspectives in deliberations if they are different from theirs.
  • Myth: Jurors are truthful. Reality: Sometimes yes and sometimes no. We all have friends ask how to get out of jury duty. Some jurors lie to get off jury duty. Others lie to stay because they prefer to be away from their mundane jobs. Or worse, jurors lie to stay on the jury for vindictive motives (aka stealth jurors).
  • Myth: Note taking during your case means jurors like what you said. Reality: Jurors who take lots of notes are paying attention, however jurors may be poking holes in your case. This also goes for interpreting jurors’ questions. Sometimes jurors basically ask for a simple definition about a medical term. We often feel compelled to interpret their question, but sometimes a cigar is just a cigar.
  • Myth: Sleeping jurors do not contribute in deliberations. Reality: In jury interviews, we often hear surprises that those that didn’t take notes or napped during testimony have a grasp of the evidence. Some sleepers are responsible jurors who work at their jobs overnight and voice strong opinions. The other jurors fill in gaps during deliberations. Sleeping jurors often believe they know what happened even if they didn’t hear every word.
  • Myth: Jurors make up their minds at opening statements. Reality: Opinions change with the evidence. There is a kernel of truth in the myth because the better-prepared trial team is more persuasive from the get go. If the evidence is weighted 50/50, jurors will change their minds throughout the trial and in deliberations. Some jurors gather more data than others and wait until they hear all the evidence before making decisions. Some jurors change their minds when they hear others in deliberation. Judgmental jurors cling to preconceived notions, regardless of the evidence. Voir dire on decision-making style to detect data gatherers and judgmental jurors.

WLALA Member Cynthia Cohen specializes in jury research, trial strategies, and settlement decision-making at Verdict Success. Dr. Cohen can be reached at 310-545-7914 or