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Litigation
Jun. 21, 2002
Never, Never Ever Argue With a Juror
Dicta Column - By David H. Brickner - Occasionally during voir dire, you will encounter a juror who loudly states a proposition or attitude squarely at odds with, and sometimes downright hostile to, your case. Do you endure this affront lying down? Do you allow this challenge to pass without a resounding, indignant, scorching rejoinder?
Dicta Column
By David H. Brickner
Occasionally during voir dire, you will encounter a juror who loudly states a proposition or attitude squarely at odds with, and sometimes downright hostile to, your case. Do you endure this affront lying down? Do you allow this challenge to pass without a resounding, indignant, scorching rejoinder? Do you suffer this insult without extracting even rhetorical revenge, the skill for which you have been honing these many years as a killer trial gladiator?
Sorry, but the short answer is, "Yes, you shall."
Juror problems of this kind fall into two categories: the juror who is so obviously bad there's no point in even talking to him or her, and nothing remains but to challenge, either peremptorily or for cause, and the less said the better; or the juror who has said something that, though you may never convert that juror to an ally, has raised a point that must, in some manner, be addressed.
With this latter type of juror, you may tactfully handle the situation in any manner you think best, so long as you do not violate the sacred rule of jury selection: Never argue with a juror. Don't ever argue because it necessarily entails attacking the juror, an unpardonable sin that injects ruinous antagonism into your voir dire and gravely impairs the image you want to project as a credible, intelligent, reasonable advocate who is on the right side of the case.
All of which means, in short, that you can never win an argument with a juror.
What to do? Bearing in mind courteous, patient, even persistent questioning is entirely acceptable, I advise discussing the problem with this juror by going with the position stated in the adverse remark, not against it. Do this by stating a reasonable proposition. Instead of saying, for example, "How can you possibly say all plaintiffs are out to rip off the system!" try something along these lines: "I agree with you. Many plaintiffs are seeking money they are not entitled to, but isn't it also true there are some truly deserving plaintiffs and the validity of any particular case is properly decided by an impartial jury?" This technique discusses the issue without arguing it.
David H. Brickner is an Orange County Superior Court judge.
By David H. Brickner
Occasionally during voir dire, you will encounter a juror who loudly states a proposition or attitude squarely at odds with, and sometimes downright hostile to, your case. Do you endure this affront lying down? Do you allow this challenge to pass without a resounding, indignant, scorching rejoinder? Do you suffer this insult without extracting even rhetorical revenge, the skill for which you have been honing these many years as a killer trial gladiator?
Sorry, but the short answer is, "Yes, you shall."
Juror problems of this kind fall into two categories: the juror who is so obviously bad there's no point in even talking to him or her, and nothing remains but to challenge, either peremptorily or for cause, and the less said the better; or the juror who has said something that, though you may never convert that juror to an ally, has raised a point that must, in some manner, be addressed.
With this latter type of juror, you may tactfully handle the situation in any manner you think best, so long as you do not violate the sacred rule of jury selection: Never argue with a juror. Don't ever argue because it necessarily entails attacking the juror, an unpardonable sin that injects ruinous antagonism into your voir dire and gravely impairs the image you want to project as a credible, intelligent, reasonable advocate who is on the right side of the case.
All of which means, in short, that you can never win an argument with a juror.
What to do? Bearing in mind courteous, patient, even persistent questioning is entirely acceptable, I advise discussing the problem with this juror by going with the position stated in the adverse remark, not against it. Do this by stating a reasonable proposition. Instead of saying, for example, "How can you possibly say all plaintiffs are out to rip off the system!" try something along these lines: "I agree with you. Many plaintiffs are seeking money they are not entitled to, but isn't it also true there are some truly deserving plaintiffs and the validity of any particular case is properly decided by an impartial jury?" This technique discusses the issue without arguing it.
David H. Brickner is an Orange County Superior Court judge.
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