Julie Scheneker's murder trial in Tampa is getting a lot of attention
this week from local media. The trial officially began last week, but
no evidence has been presented yet. That's because lawyers for both
sides spent all of last week trying to seat an impartial jury for the case.
One might wonder why it would take five days just to select jurors for
a trial. However, experienced trial lawyers know that jury selection is
absolutely critical. In fact, many courtroom lawyers believe it is the
single most important part of a trial.
People tend to view evidence (along with information they receive in their
daily lives) through the lens of their experiences and beliefs. If those
experiences and beliefs are incompatible with one party's version
of events, then that party is almost certainly doomed to fail. All the
fine lawyering in the world will not help if you have jurors who are not
receptive to the information or argument you present.
Scheneker's defense to murder is not guilty by reason of insanity.
Not surprisingly, ordinary people have strong feelings about it. Some
people believe it is a get out of jail free card for people who are guilty
of terrible crimes. One of the reasons jury selection is taking so long
is because the lawyers are spending a lot of time asking potential jurors
how they feel about the defense. Not doing so would be foolish.
Though personal injury cases are usually less sensational, potential jurors
have strong feelings about them as well. Many people have internalized
insurance and corporate propaganda about an epidemic of frivolous lawsuits
or excessive verdicts. Others are fed up with the amount of mass media
advertising done by some lawyers and law firms. On the other side, some
potential jurors may have a bad impression of corporate defendants or
insurance companies based on personal experience.
Whether such people's beliefs are justified or not is beside the point.
If people believe something, social science tells us they are not likely
to abandon that belief just because they are chosen to decide a personal
injury trial. Instead, they will apply that belief to the things they
see and hear, and ignore evidence which does not fit with their views.
This tendency is known as confirmation bias.
Even well-meaning, conscientious people who really wish to be fair have
some degree of confirmation bias. It is too deeply embedded in most people's
character to be put aside.
Given that, it is arrogant for a lawyer to think that the facts of a case
are always enough to convince people. It is even more arrogant to think
that one's personal charm or skill in presenting evidence will overwhelm
a reluctant juror. Therefore, grabbing the first six jurors in a pool,
or doing a "drive by" jury selection without thorough questioning,
is a critical mistake. The lawyers in the Scheneker trial know this, and
good lawyers who try civil cases know it too.
Sometimes it takes time to find the right jurors for a case. It is time
well spent. The hard truth is that if you don't do it, nothing you
do afterward may make any difference.