[00:00:00] Eric Neiman: Welcome to Speaking of Litigation. I'm Eric Neiman. I am a partner in the Portland, Oregon office of Epstein Becker Green, and I practice in the firm's litigation and health care practices. Today's topic is about the process of selecting a jury for a civil case, something that happens hundreds of times every month in courtrooms around the country.

[00:00:30] Eric Neiman: We'll be talking about what's traditional, and what's the same, and what's new in jury selection going into 2025. The role of technology, which has taken over many aspects of courtroom practice, including AI, in the jury selection process. And then bias, polarization, and peremptory challenges. What do those look like in the new, modern age of jury selection?

[00:01:00] Eric Neiman: Over the last 25 years, the number of civil jury trials has been in decline. The numbers show us a steep decline from the early 2000s, coming to the start of the pandemic.

[00:01:31] Eric Neiman: And then during the pandemic the numbers dropped dramatically. Over the past two years, the number of civil jury trials has picked up as courts catch up and as it's possible to get back to court. But in the meantime, the country's changed. People have changed from their experiences in the pandemic and social forces that we're all aware of.

[00:01:55] Eric Neiman: And technology's moved ahead. So it's a perfect time to look at jury selection as part of the trial process. And I'm really happy to be here with two of my friends and law partners, Teddy McCormick, a commercial litigator who practices in Epstein Becker Green’s Princeton, New Jersey office. Teddy?

[00:02:15] Teddy McCormick: Thank you very much, Eric. I'm very excited to be here. Like you said, I'm a partner in our Princeton office where I focus on commercial litigation and class action defense, and I'm excited to be here today and talk about every litigator's, one of every litigator's favorite topics, jury selection.

[00:02:33] Eric Neiman: And Jon Brollier, a partner in the firm's litigation department based in Columbus, Ohio. Jon represents health care institutions and businesses in commercial cases. Hello, Jon.

[00:02:48] Jonathan Brollier: Hi, Eric. Hi, Teddy. I'm really happy to be here. Thanks for including me.

[00:02:49] Eric Neiman: Let's jump right into the process. Jury selection goes back hundreds of years. But let's talk about what happens when dozens of people who a lawyer has never met and knows very little about walk into the courtroom to serve on the jury panel, go through the jury selection process, and get down to a jury of 6 or 8 or 12, maybe with two or three alternates to decide the issues in the case.

[00:03:22] Eric Neiman: What is new? What is the same? Jon, what are you seeing?

[00:03:25] Jonathan Brollier: I think the objectives remain the same and the methods are evolving. We want to, if not pick our favorite jurors, then really try and eliminate the ones who might be problematic. And so the way that we get there is really where the magic happens.

[00:03:45] Jonathan Brollier: And so it's important to introduce some of your themes, but also to be crisp and make a good presentation, to be succinct. And I think it's really critical to be yourself. Part of this theme throughout a trial is that you want to be seen as the truth giver. You want to be the person who the jurors can rely on to be a source of information that they find credible.

[00:04:12] Jonathan Brollier: And you don't want to be smarmy. You don't want to pander to them. You don't want to suck up. You want to be open, candid. And someone with whom they can have a conversation because that's your last chance to have a conversation. And so I try and take steps to listen to what the juror says, or the prospective juror says, and not just tick through my question list that I've brought up to a podium.

[00:04:38] Jonathan Brollier: And instead to really engage with the prospective jurors. And listen to what they say and then ask a follow up question. And then to look to the people around them to say who agrees with Mr. Smith? Ms. Jones I see you nodding. Why do you agree with Mr. Smith on that question? And that helps build a little bit of rapport.

[00:05:00] Jonathan Brollier: It may help you suss out who's the natural leader among this group, who might end up being a foreperson. So I think in broad strokes, that's what you're looking for. Each case is going to be different. So how you introduce your theme may be different, but you have to be able to think on your feet because you may get a great response from a juror and then want to pivot on that to try and develop the theme a little bit if the court will give you that kind of latitude.

[00:05:24] Eric Neiman: We have you practicing in Ohio and elsewhere, and Teddy in New Jersey, and me on the West Coast mostly. Is it possible to generalize about how jury selection is conducted?

[00:05:41] Jonathan Brollier: In most places, you'll get some limited demographic data about the prospective jurors.

[00:05:48] Jonathan Brollier: I think it's still customary to get at least some questionnaires. What varies place to place, I think, is going to be how soon before they are marched into the room to answer questions do you receive those questionnaires and how much time do you have to deploy technology to try and find what you can about these people?

[00:06:10] Jonathan Brollier: So it may be that if you're just handed a sheaf of questionnaires the morning of trial, you're really going to be hustling to try and suss out information about these folks that's not on the four corners of the page, but if you've received them Friday and you have the benefit of the weekend to examine this going into a Monday or Tuesday trial, then you've got a lot more opportunity to do some research.

[00:06:35] Jonathan Brollier: And that may loop into one of our future topics, which is the role of technology and commercial vendors who can help you understand who these folks are and then what they might be bringing to the table beyond what you see on the page. But to answer your question, Eric, I think it's still customary to get questionnaires of some sort.

[00:06:53] Jonathan Brollier: And then it does really vary state to state, but really courtroom to courtroom as to how the judge is going to conduct jury selection. So I really encourage people to reach out to the court's bailiff or magistrate or staff attorney months ahead of your trial to say, when do you have a civil trial coming up?

[00:07:13] Jonathan Brollier: Because I'd like to come down and watch and see how the court does it in other cases. And not really to fine tune your questions, but just so that you are, like we talked about earlier, crisp, poised, prepared, so that the jury's seeing that you're comporting yourself in a way that sort of meets the judge's expectations.

[00:07:35] Jonathan Brollier: And let your opponent maybe flounder or flap a little bit or do what they did in their last trial, which is totally different from what your current judge expects or requires. So going to the courthouse to watch another trial in front of your judge is probably the best way to prepare.

[00:07:51] Teddy McCormick: I agree wholeheartedly with what Jonathan said.

[00:07:53] Teddy McCormick: And just one thing I would also add that can be different. And I think, Eric, this is probably something you can chime in on too, with respect to how they're doing it out on the West coast. But I know for me, practicing in New York and New Jersey, in New York, voir dire is typically done in person.

[00:08:10] Teddy McCormick: In New Jersey they're doing it online, frequently. And so it's interesting because it has a whole nother element where everybody's doing it behind the screen, but at the same time, in some respects, you get more information because you're Zooming into a potential juror's home. And that can be very interesting and maybe help you frame some questions and that sort of thing.

[00:08:29] Teddy McCormick: It's just another element that has changed as technology has evolved. And we're going to talk more about that a little later, but the voir dire process can be different in the jurisdictions. And then I think Jonathan alluded to some places it's going to be the lawyers asking the question.

[00:08:45] Teddy McCormick: And if you're in federal court, more often, it's the judge. So preparation is the key here and figure out what the process is going to be where your trial is going to be held.

[00:08:54] Eric Neiman: The consultants are telling us that jury selection is maybe the part of the trial process that's been most resistant to technology, but Teddy, what is your thinking about doing social media or Internet research in real time on prospective jurors?

[00:09:12] Teddy McCormick: I just completed a two week jury trial in the spring, and it was a case where we did not have the benefit of a jury consultant to do it. So we were doing all of this research ourselves on the fly, and it can be done. Now, one of the things I haven't experimented with is using an app or something like that.

[00:09:32] Teddy McCormick: I know they're being developed, that allow people to merge the analytics with the in-courtroom questions and things of that nature. But one thing I think that AI is starting to change for sure is you can just get much more information much more rapidly.

[00:09:54] Teddy McCormick: I remember when I was a young attorney, working with a jury consultant, it could take a weekend to try to run down as much information and data about the potential jurors, like where they worked or any potential political affiliations, things of that nature. Now you can get that information really, really quickly. So that's a huge sea change and I think a real benefit to attorneys.

[00:10:18] Eric Neiman: We had a trial not long ago where we had two college students sitting in the back doing real-time research on jurors as they went into the box, and found one of them in the first recess was on Instagram writing little posts about the lawyers and people in court and what the case was about.

[00:10:41] Teddy McCormick: I wish I could say I'm surprised, but I'm not.

[00:10:43] Eric Neiman: That resulted in the two lawyers talking to each other and going to the judge and asking for that juror to be excused. But you can find out surprising things. And then the question is, how much time do you have to do anything about it? And what are you trying to achieve?

[00:10:58] Teddy McCormick: A hundred percent. And I think that gets back to the point that Jonathan made earlier about, you're looking for your best jurors but don't let the perfect be the enemy of the good. So if you can't necessarily get your best jurors, definitely try to suss out the ones you think are going to be harmful to you and your client's case.

[00:11:14] Jonathan Brollier: And there I think a key is to, while you're the one running the questions, to bolster and get as many responses from a troublesome juror as you can to support a for-cause challenge so you're not stuck burning a peremptory challenge on them. My sister served on a criminal case in a jury recently.

[00:11:41] Jonathan Brollier: It was a murder with a gun and they ended up acquitting the defendant, but I talked to her, getting ready for this podcast, just since she's most recently been in the hot seat there. And she talked about a lot of the questions about bias. And it sounds like, and this is consistent with what we know, but if you're trying to tee up a challenge for cause, what you're trying to do is normalize bias, right?

[00:12:04] Jonathan Brollier: To let them know it's not wrong that you bring your life experience to the page here. I might say I'm someone who, confronted with options at breakfast, I'm always going to pick scrambled eggs and I just hate melon. That's just how I am and I'm not really going to apologize for it.

[00:12:25] Jonathan Brollier: And that's okay. Here, this is a case that's about fill in the blank, right? Either it's someone's been injured or there's been a contract or there's a fight between an employer and an employee. And so it's helpful for us to know, imagine that this is your menu for breakfast. It sounds like you're saying, at times, maybe you're just going to probably be more inclined to side with an employee.

[00:12:47] Jonathan Brollier: Is that fair? And if they affirm that, then say obviously we try and set these things aside, but would you agree, Mr. Jones, that all things being equal, you might just really tend to fall down on the side of the employee more often than not, wouldn't that be a fair way to say it? And try and insulate them from rehabilitation by the other side to say understanding your responses to Mr. Brollier, do you think you can still be fair and impartial?

[00:13:16] Jonathan Brollier: To tee up enough responses that you can then go to the judge outside of their presence to explain what you heard. And critical to that is to have a colleague or even a paralegal or perhaps a consultant writing down those answers in real time, so you've got it right at hand rather than trying to wait for, trying to hope the court will recall what was just discussed.

[00:13:45] Jonathan Brollier: That notion of normalizing bias if you're trying to keep somebody off the jury is important. I think people are, lawyers may often just quickly say, oh, but you can still be fair and impartial, right? But if you've got a series of four or five questions teeing up that bias against melons, that's going to be hard for the other side to unwind.

[00:14:06] Eric Neiman: Just in terms of of the mechanics of this, there are lots of trial lawyers who are a superstitious bunch anyway, who won't give up the way they do things, such as using Post-its on a big board to move jurors around as you ask questions and exercise challenges, or different systems that you'll run into with ratings and scores.

[00:14:35] Eric Neiman: What are you seeing, Teddy, about apps? You mentioned that earlier.

[00:14:40] Teddy McCormick: In recent years, there's been a number of companies that have developed jury selection apps that people can use, and a lot of what these apps do is just digitize things that trial attorneys have always done. Some of them will build out a courtroom layout exactly as you see it in the courtroom on the app, so that's similar to Eric, what you were saying, your sort of Post-its and your board and that sort of thing, it's just now reduced to being on your phone, but some of them can help you create questions in real time, which could be potentially very useful.

[00:15:16] Teddy McCormick: And I think one of the most probably beneficial applications is the ability to collaborate with colleagues and potentially clients in real time. And so if everybody is logged into this app together and can do something at the same time, it makes it a lot easier to have a real brain trust while you're going through this process, which is good and bad.

[00:15:39] Teddy McCormick: Like Jonathan alluded to earlier, you really do have to think on your feet while you're going through the process, but it's also helpful to have people there, and if you can marshal the thoughts of your whole team in an efficient way, I think that's very beneficial. A lot of times when we're doing these cases, it's maybe you or me and one or two other people.

[00:15:59] Teddy McCormick: If the client's involved in the jury selection process, I think there's real benefit to that. And if they're seeing it while you're doing it they, I think, can assist with the process. So I think that's a real potential benefit. And then the other thing that they're working on, and I think some of the apps may even have the capability to do, is engage with the case and jury and analytics.

[00:16:25] Teddy McCormick: And you can sync the predictive data that the AI has done on all of the juries. This is all the background research and looking at their social media platforms and stuff like that, and then sync it all while you're going through this process and then come up with ranking, which is what we all do in terms of our favorites, but now it's just, I think, quicker and more efficient and hopefully doesn't lose anything.

[00:16:49] Eric Neiman: We've moved into our second topic about the use of technology and jury selection. You can probably get too much in love with the latest app and lose your focus on what really matters, which is the people there.

[00:17:06] Jonathan Brollier: One angle that, when we're talking about culling through social media or things like that, I think it's probably worth impressing and our general counsel will probably instruct us to, I don't think you're allowed to friend request people if they have a private account, right?

[00:17:21] Jonathan Brollier: So let's maybe just level set and make the audience clear about that, but if people have public accounts then you can view that and glean information from it, but you can't have your paralegal send them a friend request on Instagram. At least that's my instruction in Ohio. [laughter]

[00:17:41] Teddy McCormick: Yeah, I think there's case law about that. You're 100 percent right.

[00:17:44] Jonathan Brollier: But I think again you want to be more of a listener than a speaker. And so to the extent that you can ask folks follow up questions, not just to leave them well disposed to you, but also to really unpack what they're coming to the table with.

[00:18:05] Jonathan Brollier: I think we make a mistake sometimes putting people all in one bucket, maybe because they have either a political affiliation or they've posted something online that you think, you presume that they hold other views because of one thing you've seen, but people are really a lot more complicated than that.

[00:18:26] Jonathan Brollier: And that can be a way to help folks express themselves, get a little comfortable with you, and also understand that folks aren't monochromatic, and to help understand, oh, this person is bringing a lot of different experiences to the table. Some of which might help us, even if on first blush, maybe, we think they could be a challenge.

[00:18:48] Jonathan Brollier: Things I think about, when you have veterans or folks who are first responders, inevitably the smarmy person will fall over themselves thanking that person for their service. That's an appropriate thing to do, say thanks for your service. This is actually a case about some technology that has to do with finishings on chrome for metals.

[00:19:11] Jonathan Brollier: Is there anything that you did in the service that would have had to do with using technology or using emerging technologies that helped you do that? And it doesn't really matter, but to help the person start talking, to reveal not just, oh, I was in the Air Force, but what did you do?

[00:19:30] Jonathan Brollier: Oh, that's really interesting. This case actually has to do with those kinds of alloys. And so if you listen and hear what the person says, you can turn that to your advantage. I had a case where a really critical part of the medicine in the case was the idea that if you have a certain amount of hemoglobin in your body, and then if you're given a lot of fluids for medical reasons, you will have the same hemoglobin in your body, but its ratio is going to be diluted.

[00:20:00] Jonathan Brollier: So the idea of dilution, whether you needed to transfuse blood to increase hemoglobin was sort of at the heart of the case. And it happened that we had a middle school science teacher in the voir dire. She hated the hospital system that I was representing. She was not going to end up on our jury one way or another, but I was able to say, well Ms. Smith, in your middle school science class, do you educate students about dilution? Yes, of course we do. Can you tell the other jurors what's dilution? And she just right off the cuff explained exactly what dilution is. If you have a certain number of solids and then you add liquid to it here's what that means.

[00:20:39] Jonathan Brollier: And it was like a free science class. It teed up a theme that we returned to in closing and we got it for free, but then we got her excused because we knew she was disinclined to our side. That all happened just by listening to her and jumping in at the right moment to offer a softball about something that she was very comfortable talking about.

[00:21:01] Jonathan Brollier: I've seen it blow up in people's faces where they get asked questions about things they're really uncomfortable with. Sometimes if you press too hard, you may end up turning people off. I think you try and listen to them and meet them where they are, but if you have an opportunity to toss a softball, sometimes you should do it.

[00:21:17] Eric Neiman: We know that under 2 percent of civil cases actually go to a jury trial. It's become something of a special occasion where voir dire or jury selection, in my view, is not something anyone should try and do by themself. There should always be somebody else sitting there taking notes and helping. That brings up the subject of consultants. What do you think about that, Teddy?

[00:21:44] Teddy McCormick: I think jury consultants..

[00:21:46] Eric Neiman: They're expensive. [laughter]

[00:21:47] Teddy McCormick: Yeah. First and foremost, they're very expensive. I think they can be hugely beneficial, but whether or not you use a jury consultant is going to rest in large part on the economic value of the case.

[00:22:01] Teddy McCormick: If the potential amount of money at stake justifies it, then having a consultant can be wonderful. Consultants provide a lot of value. They can assist you with doing the jury research. They can assist you with doing psychological profiles. Helping you craft questions.

[00:22:20] Teddy McCormick: Helping you identify jurors that they think are going to be receptive to your case and that sort of thing. And we've engaged them and used them throughout the trial. Help with closing, you know, typically they sit in the courtroom and that sort of thing. So I think they can be hugely beneficial.

[00:22:39] Teddy McCormick: But the reality is Eric, you were saying like less than 2 percent of cases go to trial. Probably even a smaller percentage of those 2 percent are these multi, multi million dollar cases that really can justify the expense of a jury consultant. So if you can use one, I think they're great.

[00:22:57] Teddy McCormick: And I think they provide a lot of value. But a lot of times we're doing this without their benefit, and it's a lot of things we can all do with our own team.

[00:23:07] Eric Neiman: There are creative uses of Internet technology to do things like focus groups that we're seeing consultants do on a cost effective basis that can be very helpful research. Those options are worth looking for in the right case.

[00:23:26] Teddy McCormick: Yeah, 100,000%. And a lot of vendors are starting to offer almost like a menu of options because they realize it's very expensive. And if you have, I've done it where it runs the gamut from where you have the case that's hundreds of millions of dollars.

[00:23:40] Teddy McCormick: You're going to go all out and you're going to do a live mock jury with a panel of people who are in the county that the trial is going to take place and get as close as possible to a real similar experience, but you can also do things where you can do it online with a panel of jurors in an abridged area or with specific topics. You don't have to necessarily do a full mock trial of every issue in your case.

[00:24:10] Teddy McCormick: If there are certain issues that you think are more potentially problematic you can focus on that and do it. So I do see a lot of vendors are trying to offer more of sort of a suite of options that gives counsel and their clients the ability to pressure test some of their theories and some of their strategies, which I think is enormously valuable.

[00:24:31] Eric Neiman: Let's talk about selecting a jury in the post-pandemic era, where we've just gone through an election. Every day in the media we've been hearing about how polarized people are, how they're one thing or another. How do you deal with that, Jon?

[00:24:49] Jonathan Brollier: I think one way to handle it or to approach it is to encourage people to share, you know, in what part of your life do you have to work together with a team to make decisions?

[00:25:02] Jonathan Brollier: And that can help reveal what kind of workplace they're in, or what kind of civic organizations they're involved with, or maybe family dynamics. Maybe if they're the boss of their company, then they'll say I tell people what to do, or they may say, I don't really get to weigh in very much on decisions at my job.

[00:25:26] Jonathan Brollier: I'm the low man on the totem pole. And regardless of which answer there you get, you can pivot and say being on a jury is so important because everyone gets to have a voice, and this is an opportunity for you to, in the case of the boss, to listen to the rest of what will emerge as this team that's being selected, or in the case of the underling, this is an opportunity where your voice is necessarily going to be heard, and it sounds like sometimes in your workplace you don't get the chance or the opportunity to speak up, do you think this is a situation where you're going to be able to listen to the testimony, and when you're in the jury room, are you going to be comfortable to speak up even if it seems like you're in the minority? You can speak up and help the group reach a decision? And that might be a way to either temporize an extreme personality, or if you find, have somebody that's maybe meeker in demeanor, but who you think might be inclined to your view of the case, help to juice them up a little bit to be a little more forthright in there when it comes time to deliberate.

[00:26:34] Eric Neiman: As we were getting ready for this event today, we talked to trial lawyers, jury consultants, judges. And one of the trends that we heard about over and over again had to do with bias in jury selection. There's growing case law suggesting that bias needs to be aggressively policed by judges as part of the jury selection process.

[00:27:04] Eric Neiman: Teddy, how do you go about looking within and avoiding bias that could create problems for you on appeal or even in the trial?

[00:27:14] Teddy McCormick: Yeah that's a great question, and it's definitely a hot button issue right now. It's a hot button issue in society generally. So I think you have to just be very careful using your peremptory challenges and making sure that you've sussed out a legitimate basis for why you're excluding that potential juror so that it can't be subsequently challenged later, either on appeal or by opposing counsel.

[00:27:38] Teddy McCormick: You just want to be, like Jonathan was saying, listen closely, ask questions, and just be careful to try to create as full proof of a record as possible to justify any of your challenges removing jurors so that you're bulletproofing yourself and your client, because that's like the worst possible scenario to have a case go to a verdict and get a great result and then have it be attacked on appeal.

[00:28:09] Eric Neiman: Yeah this is what's called the Batson issue, based on a Supreme Court case about bias and jury selection and peremptory challenges being exercised against people in protected classes. It's probably not good enough anymore when opposing counsel says I think that challenge is being exercised in a discriminatory way, to tell the judge I just had a feeling that I needed to get rid of that juror.

[00:28:39] Eric Neiman: You really need to have a non-discriminatory reason for the decisions you make that can be defended in terms of getting a jury panel that's reflective of society and willing to work hard to be fair.

[00:28:54] Jonathan Brollier: Eric, I agree. This body of law is evolving all the time. We just had an Ohio Supreme Court case last year.

[00:29:04] Jonathan Brollier: It was a criminal case, State versus Stalder, but it arose in the context of a man who'd been accused of an assault against a woman. And the state had exercised three peremptories, each against a man. And interestingly the Ohio Supreme Court held that the mere fact that the state's three peremptories were used against males did not constitute a prima facie showing of discriminatory intent.

[00:29:37] Jonathan Brollier: So bucking what I had suspected was a national trend as to more permissive entertainment of Batson challenges, the Ohio Supreme Court, at least in that case, seemed to raise the bar on what you have to do to show, to make that prima facie showing. And so things to look for could be statistical evidence of that prosecutor's other challenges or that attorney's other challenges.

[00:30:06] Jonathan Brollier: But just the fact that the three people happen to be of the same gender wasn't enough to make a prima facie showing, at least in that particular case. I thought it was interesting because I had suspected that the court would be lowering the bar on those kinds of challenges. But I'm sure it's varying state to state.

[00:30:25] Eric Neiman: What a trial lawyer wants ideally is a jury of 6 or 12 or however many are in that venue, all of whom are going to want to vote for that lawyer's client without hearing any evidence. That's never going to happen. And it reminds me of when I lost a jury case years ago, early in my career, and came back to the office to find our senior partner and complain that the jury just had not understood the case at all.

[00:31:00] Eric Neiman: And he told me never complain about a jury verdict. If you lose a case, it's because the lawyer didn't do his job or the judge got the law wrong or the witnesses didn't hold up, but it's not the jury's fault. They work hard to get it right. And he said, if you don't like that, go into estate planning.

[laughter]

[00:31:23] Eric Neiman: I've carried that with me through years of not doing estate planning and doing trial work that all you can ask for is for people to listen, work hard, and be fair. Like Teddy said, you don't want to let the perfect be the enemy of the good. What can you share with us in closing, Teddy?

[00:31:42] Teddy McCormick: The key thing with jury selection is just really listen and observe.

[00:31:48] Teddy McCormick: And, like I think both you and Jonathan said, you have to ask your questions and you have to try to make as good of an impression as possible, but I think you're really there to listen and observe more than to talk and to put on a show. And I think that's really, if you can come away with one thing, that's probably the most important thing you can take away with you.

[00:32:06] Eric Neiman: How about you, Jon?

[00:32:08] Jonathan Brollier: Yeah, I agree with Teddy. I'd also say that there's value in brevity. And to, from the get go, help the jurors understand that when you're talking, it's going to be germane, and it's going to be incisive, and it's going to be worth paying attention to, and not to belabor it. I'm going to talk to you one on one as a person.

[00:32:30] Jonathan Brollier: This is a case that's really important to my clients. How do you feel about the following issues? And to just jump in it, help and engage them in some conversation with their colleagues in the voir dire, but to be pretty tight so that they know that when you're talking, it's something that's worth paying attention to.

[00:32:52] Eric Neiman: Thank you everyone for watching and listening. And please subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts.

[00:00:00] Eric Neiman: Welcome to Speaking of Litigation. I'm Eric Neiman. I am a partner in the Portland, Oregon office of Epstein Becker Green, and I practice in the firm's litigation and health care practices. Today's topic is about the process of selecting a jury for a civil case, something that happens hundreds of times every month in courtrooms around the country.

[00:00:30] Eric Neiman: We'll be talking about what's traditional, and what's the same, and what's new in jury selection going into 2025. The role of technology, which has taken over many aspects of courtroom practice, including AI, in the jury selection process. And then bias, polarization, and peremptory challenges. What do those look like in the new, modern age of jury selection?

[00:01:00] Eric Neiman: Over the last 25 years, the number of civil jury trials has been in decline. The numbers show us a steep decline from the early 2000s, coming to the start of the pandemic.

[00:01:31] Eric Neiman: And then during the pandemic the numbers dropped dramatically. Over the past two years, the number of civil jury trials has picked up as courts catch up and as it's possible to get back to court. But in the meantime, the country's changed. People have changed from their experiences in the pandemic and social forces that we're all aware of.

[00:01:55] Eric Neiman: And technology's moved ahead. So it's a perfect time to look at jury selection as part of the trial process. And I'm really happy to be here with two of my friends and law partners, Teddy McCormick, a commercial litigator who practices in Epstein Becker Green’s Princeton, New Jersey office. Teddy?

[00:02:15] Teddy McCormick: Thank you very much, Eric. I'm very excited to be here. Like you said, I'm a partner in our Princeton office where I focus on commercial litigation and class action defense, and I'm excited to be here today and talk about every litigator's, one of every litigator's favorite topics, jury selection.

[00:02:33] Eric Neiman: And Jon Brollier, a partner in the firm's litigation department based in Columbus, Ohio. Jon represents health care institutions and businesses in commercial cases. Hello, Jon.

[00:02:48] Jonathan Brollier: Hi, Eric. Hi, Teddy. I'm really happy to be here. Thanks for including me.

[00:02:49] Eric Neiman: Let's jump right into the process. Jury selection goes back hundreds of years. But let's talk about what happens when dozens of people who a lawyer has never met and knows very little about walk into the courtroom to serve on the jury panel, go through the jury selection process, and get down to a jury of 6 or 8 or 12, maybe with two or three alternates to decide the issues in the case.

[00:03:22] Eric Neiman: What is new? What is the same? Jon, what are you seeing?

[00:03:25] Jonathan Brollier: I think the objectives remain the same and the methods are evolving. We want to, if not pick our favorite jurors, then really try and eliminate the ones who might be problematic. And so the way that we get there is really where the magic happens.

[00:03:45] Jonathan Brollier: And so it's important to introduce some of your themes, but also to be crisp and make a good presentation, to be succinct. And I think it's really critical to be yourself. Part of this theme throughout a trial is that you want to be seen as the truth giver. You want to be the person who the jurors can rely on to be a source of information that they find credible.

[00:04:12] Jonathan Brollier: And you don't want to be smarmy. You don't want to pander to them. You don't want to suck up. You want to be open, candid. And someone with whom they can have a conversation because that's your last chance to have a conversation. And so I try and take steps to listen to what the juror says, or the prospective juror says, and not just tick through my question list that I've brought up to a podium.

[00:04:38] Jonathan Brollier: And instead to really engage with the prospective jurors. And listen to what they say and then ask a follow up question. And then to look to the people around them to say who agrees with Mr. Smith? Ms. Jones I see you nodding. Why do you agree with Mr. Smith on that question? And that helps build a little bit of rapport.

[00:05:00] Jonathan Brollier: It may help you suss out who's the natural leader among this group, who might end up being a foreperson. So I think in broad strokes, that's what you're looking for. Each case is going to be different. So how you introduce your theme may be different, but you have to be able to think on your feet because you may get a great response from a juror and then want to pivot on that to try and develop the theme a little bit if the court will give you that kind of latitude.

[00:05:24] Eric Neiman: We have you practicing in Ohio and elsewhere, and Teddy in New Jersey, and me on the West Coast mostly. Is it possible to generalize about how jury selection is conducted?

[00:05:41] Jonathan Brollier: In most places, you'll get some limited demographic data about the prospective jurors.

[00:05:48] Jonathan Brollier: I think it's still customary to get at least some questionnaires. What varies place to place, I think, is going to be how soon before they are marched into the room to answer questions do you receive those questionnaires and how much time do you have to deploy technology to try and find what you can about these people?

[00:06:10] Jonathan Brollier: So it may be that if you're just handed a sheaf of questionnaires the morning of trial, you're really going to be hustling to try and suss out information about these folks that's not on the four corners of the page, but if you've received them Friday and you have the benefit of the weekend to examine this going into a Monday or Tuesday trial, then you've got a lot more opportunity to do some research.

[00:06:35] Jonathan Brollier: And that may loop into one of our future topics, which is the role of technology and commercial vendors who can help you understand who these folks are and then what they might be bringing to the table beyond what you see on the page. But to answer your question, Eric, I think it's still customary to get questionnaires of some sort.

[00:06:53] Jonathan Brollier: And then it does really vary state to state, but really courtroom to courtroom as to how the judge is going to conduct jury selection. So I really encourage people to reach out to the court's bailiff or magistrate or staff attorney months ahead of your trial to say, when do you have a civil trial coming up?

[00:07:13] Jonathan Brollier: Because I'd like to come down and watch and see how the court does it in other cases. And not really to fine tune your questions, but just so that you are, like we talked about earlier, crisp, poised, prepared, so that the jury's seeing that you're comporting yourself in a way that sort of meets the judge's expectations.

[00:07:35] Jonathan Brollier: And let your opponent maybe flounder or flap a little bit or do what they did in their last trial, which is totally different from what your current judge expects or requires. So going to the courthouse to watch another trial in front of your judge is probably the best way to prepare.

[00:07:51] Teddy McCormick: I agree wholeheartedly with what Jonathan said.

[00:07:53] Teddy McCormick: And just one thing I would also add that can be different. And I think, Eric, this is probably something you can chime in on too, with respect to how they're doing it out on the West coast. But I know for me, practicing in New York and New Jersey, in New York, voir dire is typically done in person.

[00:08:10] Teddy McCormick: In New Jersey they're doing it online, frequently. And so it's interesting because it has a whole nother element where everybody's doing it behind the screen, but at the same time, in some respects, you get more information because you're Zooming into a potential juror's home. And that can be very interesting and maybe help you frame some questions and that sort of thing.

[00:08:29] Teddy McCormick: It's just another element that has changed as technology has evolved. And we're going to talk more about that a little later, but the voir dire process can be different in the jurisdictions. And then I think Jonathan alluded to some places it's going to be the lawyers asking the question.

[00:08:45] Teddy McCormick: And if you're in federal court, more often, it's the judge. So preparation is the key here and figure out what the process is going to be where your trial is going to be held.

[00:08:54] Eric Neiman: The consultants are telling us that jury selection is maybe the part of the trial process that's been most resistant to technology, but Teddy, what is your thinking about doing social media or Internet research in real time on prospective jurors?

[00:09:12] Teddy McCormick: I just completed a two week jury trial in the spring, and it was a case where we did not have the benefit of a jury consultant to do it. So we were doing all of this research ourselves on the fly, and it can be done. Now, one of the things I haven't experimented with is using an app or something like that.

[00:09:32] Teddy McCormick: I know they're being developed, that allow people to merge the analytics with the in-courtroom questions and things of that nature. But one thing I think that AI is starting to change for sure is you can just get much more information much more rapidly.

[00:09:54] Teddy McCormick: I remember when I was a young attorney, working with a jury consultant, it could take a weekend to try to run down as much information and data about the potential jurors, like where they worked or any potential political affiliations, things of that nature. Now you can get that information really, really quickly. So that's a huge sea change and I think a real benefit to attorneys.

[00:10:18] Eric Neiman: We had a trial not long ago where we had two college students sitting in the back doing real-time research on jurors as they went into the box, and found one of them in the first recess was on Instagram writing little posts about the lawyers and people in court and what the case was about.

[00:10:41] Teddy McCormick: I wish I could say I'm surprised, but I'm not.

[00:10:43] Eric Neiman: That resulted in the two lawyers talking to each other and going to the judge and asking for that juror to be excused. But you can find out surprising things. And then the question is, how much time do you have to do anything about it? And what are you trying to achieve?

[00:10:58] Teddy McCormick: A hundred percent. And I think that gets back to the point that Jonathan made earlier about, you're looking for your best jurors but don't let the perfect be the enemy of the good. So if you can't necessarily get your best jurors, definitely try to suss out the ones you think are going to be harmful to you and your client's case.

[00:11:14] Jonathan Brollier: And there I think a key is to, while you're the one running the questions, to bolster and get as many responses from a troublesome juror as you can to support a for-cause challenge so you're not stuck burning a peremptory challenge on them. My sister served on a criminal case in a jury recently.

[00:11:41] Jonathan Brollier: It was a murder with a gun and they ended up acquitting the defendant, but I talked to her, getting ready for this podcast, just since she's most recently been in the hot seat there. And she talked about a lot of the questions about bias. And it sounds like, and this is consistent with what we know, but if you're trying to tee up a challenge for cause, what you're trying to do is normalize bias, right?

[00:12:04] Jonathan Brollier: To let them know it's not wrong that you bring your life experience to the page here. I might say I'm someone who, confronted with options at breakfast, I'm always going to pick scrambled eggs and I just hate melon. That's just how I am and I'm not really going to apologize for it.

[00:12:25] Jonathan Brollier: And that's okay. Here, this is a case that's about fill in the blank, right? Either it's someone's been injured or there's been a contract or there's a fight between an employer and an employee. And so it's helpful for us to know, imagine that this is your menu for breakfast. It sounds like you're saying, at times, maybe you're just going to probably be more inclined to side with an employee.

[00:12:47] Jonathan Brollier: Is that fair? And if they affirm that, then say obviously we try and set these things aside, but would you agree, Mr. Jones, that all things being equal, you might just really tend to fall down on the side of the employee more often than not, wouldn't that be a fair way to say it? And try and insulate them from rehabilitation by the other side to say understanding your responses to Mr. Brollier, do you think you can still be fair and impartial?

[00:13:16] Jonathan Brollier: To tee up enough responses that you can then go to the judge outside of their presence to explain what you heard. And critical to that is to have a colleague or even a paralegal or perhaps a consultant writing down those answers in real time, so you've got it right at hand rather than trying to wait for, trying to hope the court will recall what was just discussed.

[00:13:45] Jonathan Brollier: That notion of normalizing bias if you're trying to keep somebody off the jury is important. I think people are, lawyers may often just quickly say, oh, but you can still be fair and impartial, right? But if you've got a series of four or five questions teeing up that bias against melons, that's going to be hard for the other side to unwind.

[00:14:06] Eric Neiman: Just in terms of of the mechanics of this, there are lots of trial lawyers who are a superstitious bunch anyway, who won't give up the way they do things, such as using Post-its on a big board to move jurors around as you ask questions and exercise challenges, or different systems that you'll run into with ratings and scores.

[00:14:35] Eric Neiman: What are you seeing, Teddy, about apps? You mentioned that earlier.

[00:14:40] Teddy McCormick: In recent years, there's been a number of companies that have developed jury selection apps that people can use, and a lot of what these apps do is just digitize things that trial attorneys have always done. Some of them will build out a courtroom layout exactly as you see it in the courtroom on the app, so that's similar to Eric, what you were saying, your sort of Post-its and your board and that sort of thing, it's just now reduced to being on your phone, but some of them can help you create questions in real time, which could be potentially very useful.

[00:15:16] Teddy McCormick: And I think one of the most probably beneficial applications is the ability to collaborate with colleagues and potentially clients in real time. And so if everybody is logged into this app together and can do something at the same time, it makes it a lot easier to have a real brain trust while you're going through this process, which is good and bad.

[00:15:39] Teddy McCormick: Like Jonathan alluded to earlier, you really do have to think on your feet while you're going through the process, but it's also helpful to have people there, and if you can marshal the thoughts of your whole team in an efficient way, I think that's very beneficial. A lot of times when we're doing these cases, it's maybe you or me and one or two other people.

[00:15:59] Teddy McCormick: If the client's involved in the jury selection process, I think there's real benefit to that. And if they're seeing it while you're doing it they, I think, can assist with the process. So I think that's a real potential benefit. And then the other thing that they're working on, and I think some of the apps may even have the capability to do, is engage with the case and jury and analytics.

[00:16:25] Teddy McCormick: And you can sync the predictive data that the AI has done on all of the juries. This is all the background research and looking at their social media platforms and stuff like that, and then sync it all while you're going through this process and then come up with ranking, which is what we all do in terms of our favorites, but now it's just, I think, quicker and more efficient and hopefully doesn't lose anything.

[00:16:49] Eric Neiman: We've moved into our second topic about the use of technology and jury selection. You can probably get too much in love with the latest app and lose your focus on what really matters, which is the people there.

[00:17:06] Jonathan Brollier: One angle that, when we're talking about culling through social media or things like that, I think it's probably worth impressing and our general counsel will probably instruct us to, I don't think you're allowed to friend request people if they have a private account, right?

[00:17:21] Jonathan Brollier: So let's maybe just level set and make the audience clear about that, but if people have public accounts then you can view that and glean information from it, but you can't have your paralegal send them a friend request on Instagram. At least that's my instruction in Ohio. [laughter]

[00:17:41] Teddy McCormick: Yeah, I think there's case law about that. You're 100 percent right.

[00:17:44] Jonathan Brollier: But I think again you want to be more of a listener than a speaker. And so to the extent that you can ask folks follow up questions, not just to leave them well disposed to you, but also to really unpack what they're coming to the table with.

[00:18:05] Jonathan Brollier: I think we make a mistake sometimes putting people all in one bucket, maybe because they have either a political affiliation or they've posted something online that you think, you presume that they hold other views because of one thing you've seen, but people are really a lot more complicated than that.

[00:18:26] Jonathan Brollier: And that can be a way to help folks express themselves, get a little comfortable with you, and also understand that folks aren't monochromatic, and to help understand, oh, this person is bringing a lot of different experiences to the table. Some of which might help us, even if on first blush, maybe, we think they could be a challenge.

[00:18:48] Jonathan Brollier: Things I think about, when you have veterans or folks who are first responders, inevitably the smarmy person will fall over themselves thanking that person for their service. That's an appropriate thing to do, say thanks for your service. This is actually a case about some technology that has to do with finishings on chrome for metals.

[00:19:11] Jonathan Brollier: Is there anything that you did in the service that would have had to do with using technology or using emerging technologies that helped you do that? And it doesn't really matter, but to help the person start talking, to reveal not just, oh, I was in the Air Force, but what did you do?

[00:19:30] Jonathan Brollier: Oh, that's really interesting. This case actually has to do with those kinds of alloys. And so if you listen and hear what the person says, you can turn that to your advantage. I had a case where a really critical part of the medicine in the case was the idea that if you have a certain amount of hemoglobin in your body, and then if you're given a lot of fluids for medical reasons, you will have the same hemoglobin in your body, but its ratio is going to be diluted.

[00:20:00] Jonathan Brollier: So the idea of dilution, whether you needed to transfuse blood to increase hemoglobin was sort of at the heart of the case. And it happened that we had a middle school science teacher in the voir dire. She hated the hospital system that I was representing. She was not going to end up on our jury one way or another, but I was able to say, well Ms. Smith, in your middle school science class, do you educate students about dilution? Yes, of course we do. Can you tell the other jurors what's dilution? And she just right off the cuff explained exactly what dilution is. If you have a certain number of solids and then you add liquid to it here's what that means.

[00:20:39] Jonathan Brollier: And it was like a free science class. It teed up a theme that we returned to in closing and we got it for free, but then we got her excused because we knew she was disinclined to our side. That all happened just by listening to her and jumping in at the right moment to offer a softball about something that she was very comfortable talking about.

[00:21:01] Jonathan Brollier: I've seen it blow up in people's faces where they get asked questions about things they're really uncomfortable with. Sometimes if you press too hard, you may end up turning people off. I think you try and listen to them and meet them where they are, but if you have an opportunity to toss a softball, sometimes you should do it.

[00:21:17] Eric Neiman: We know that under 2 percent of civil cases actually go to a jury trial. It's become something of a special occasion where voir dire or jury selection, in my view, is not something anyone should try and do by themself. There should always be somebody else sitting there taking notes and helping. That brings up the subject of consultants. What do you think about that, Teddy?

[00:21:44] Teddy McCormick: I think jury consultants..

[00:21:46] Eric Neiman: They're expensive. [laughter]

[00:21:47] Teddy McCormick: Yeah. First and foremost, they're very expensive. I think they can be hugely beneficial, but whether or not you use a jury consultant is going to rest in large part on the economic value of the case.

[00:22:01] Teddy McCormick: If the potential amount of money at stake justifies it, then having a consultant can be wonderful. Consultants provide a lot of value. They can assist you with doing the jury research. They can assist you with doing psychological profiles. Helping you craft questions.

[00:22:20] Teddy McCormick: Helping you identify jurors that they think are going to be receptive to your case and that sort of thing. And we've engaged them and used them throughout the trial. Help with closing, you know, typically they sit in the courtroom and that sort of thing. So I think they can be hugely beneficial.

[00:22:39] Teddy McCormick: But the reality is Eric, you were saying like less than 2 percent of cases go to trial. Probably even a smaller percentage of those 2 percent are these multi, multi million dollar cases that really can justify the expense of a jury consultant. So if you can use one, I think they're great.

[00:22:57] Teddy McCormick: And I think they provide a lot of value. But a lot of times we're doing this without their benefit, and it's a lot of things we can all do with our own team.

[00:23:07] Eric Neiman: There are creative uses of Internet technology to do things like focus groups that we're seeing consultants do on a cost effective basis that can be very helpful research. Those options are worth looking for in the right case.

[00:23:26] Teddy McCormick: Yeah, 100,000%. And a lot of vendors are starting to offer almost like a menu of options because they realize it's very expensive. And if you have, I've done it where it runs the gamut from where you have the case that's hundreds of millions of dollars.

[00:23:40] Teddy McCormick: You're going to go all out and you're going to do a live mock jury with a panel of people who are in the county that the trial is going to take place and get as close as possible to a real similar experience, but you can also do things where you can do it online with a panel of jurors in an abridged area or with specific topics. You don't have to necessarily do a full mock trial of every issue in your case.

[00:24:10] Teddy McCormick: If there are certain issues that you think are more potentially problematic you can focus on that and do it. So I do see a lot of vendors are trying to offer more of sort of a suite of options that gives counsel and their clients the ability to pressure test some of their theories and some of their strategies, which I think is enormously valuable.

[00:24:31] Eric Neiman: Let's talk about selecting a jury in the post-pandemic era, where we've just gone through an election. Every day in the media we've been hearing about how polarized people are, how they're one thing or another. How do you deal with that, Jon?

[00:24:49] Jonathan Brollier: I think one way to handle it or to approach it is to encourage people to share, you know, in what part of your life do you have to work together with a team to make decisions?

[00:25:02] Jonathan Brollier: And that can help reveal what kind of workplace they're in, or what kind of civic organizations they're involved with, or maybe family dynamics. Maybe if they're the boss of their company, then they'll say I tell people what to do, or they may say, I don't really get to weigh in very much on decisions at my job.

[00:25:26] Jonathan Brollier: I'm the low man on the totem pole. And regardless of which answer there you get, you can pivot and say being on a jury is so important because everyone gets to have a voice, and this is an opportunity for you to, in the case of the boss, to listen to the rest of what will emerge as this team that's being selected, or in the case of the underling, this is an opportunity where your voice is necessarily going to be heard, and it sounds like sometimes in your workplace you don't get the chance or the opportunity to speak up, do you think this is a situation where you're going to be able to listen to the testimony, and when you're in the jury room, are you going to be comfortable to speak up even if it seems like you're in the minority? You can speak up and help the group reach a decision? And that might be a way to either temporize an extreme personality, or if you find, have somebody that's maybe meeker in demeanor, but who you think might be inclined to your view of the case, help to juice them up a little bit to be a little more forthright in there when it comes time to deliberate.

[00:26:34] Eric Neiman: As we were getting ready for this event today, we talked to trial lawyers, jury consultants, judges. And one of the trends that we heard about over and over again had to do with bias in jury selection. There's growing case law suggesting that bias needs to be aggressively policed by judges as part of the jury selection process.

[00:27:04] Eric Neiman: Teddy, how do you go about looking within and avoiding bias that could create problems for you on appeal or even in the trial?

[00:27:14] Teddy McCormick: Yeah that's a great question, and it's definitely a hot button issue right now. It's a hot button issue in society generally. So I think you have to just be very careful using your peremptory challenges and making sure that you've sussed out a legitimate basis for why you're excluding that potential juror so that it can't be subsequently challenged later, either on appeal or by opposing counsel.

[00:27:38] Teddy McCormick: You just want to be, like Jonathan was saying, listen closely, ask questions, and just be careful to try to create as full proof of a record as possible to justify any of your challenges removing jurors so that you're bulletproofing yourself and your client, because that's like the worst possible scenario to have a case go to a verdict and get a great result and then have it be attacked on appeal.

[00:28:09] Eric Neiman: Yeah this is what's called the Batson issue, based on a Supreme Court case about bias and jury selection and peremptory challenges being exercised against people in protected classes. It's probably not good enough anymore when opposing counsel says I think that challenge is being exercised in a discriminatory way, to tell the judge I just had a feeling that I needed to get rid of that juror.

[00:28:39] Eric Neiman: You really need to have a non-discriminatory reason for the decisions you make that can be defended in terms of getting a jury panel that's reflective of society and willing to work hard to be fair.

[00:28:54] Jonathan Brollier: Eric, I agree. This body of law is evolving all the time. We just had an Ohio Supreme Court case last year.

[00:29:04] Jonathan Brollier: It was a criminal case, State versus Stalder, but it arose in the context of a man who'd been accused of an assault against a woman. And the state had exercised three peremptories, each against a man. And interestingly the Ohio Supreme Court held that the mere fact that the state's three peremptories were used against males did not constitute a prima facie showing of discriminatory intent.

[00:29:37] Jonathan Brollier: So bucking what I had suspected was a national trend as to more permissive entertainment of Batson challenges, the Ohio Supreme Court, at least in that case, seemed to raise the bar on what you have to do to show, to make that prima facie showing. And so things to look for could be statistical evidence of that prosecutor's other challenges or that attorney's other challenges.

[00:30:06] Jonathan Brollier: But just the fact that the three people happen to be of the same gender wasn't enough to make a prima facie showing, at least in that particular case. I thought it was interesting because I had suspected that the court would be lowering the bar on those kinds of challenges. But I'm sure it's varying state to state.

[00:30:25] Eric Neiman: What a trial lawyer wants ideally is a jury of 6 or 12 or however many are in that venue, all of whom are going to want to vote for that lawyer's client without hearing any evidence. That's never going to happen. And it reminds me of when I lost a jury case years ago, early in my career, and came back to the office to find our senior partner and complain that the jury just had not understood the case at all.

[00:31:00] Eric Neiman: And he told me never complain about a jury verdict. If you lose a case, it's because the lawyer didn't do his job or the judge got the law wrong or the witnesses didn't hold up, but it's not the jury's fault. They work hard to get it right. And he said, if you don't like that, go into estate planning.

[laughter]

[00:31:23] Eric Neiman: I've carried that with me through years of not doing estate planning and doing trial work that all you can ask for is for people to listen, work hard, and be fair. Like Teddy said, you don't want to let the perfect be the enemy of the good. What can you share with us in closing, Teddy?

[00:31:42] Teddy McCormick: The key thing with jury selection is just really listen and observe.

[00:31:48] Teddy McCormick: And, like I think both you and Jonathan said, you have to ask your questions and you have to try to make as good of an impression as possible, but I think you're really there to listen and observe more than to talk and to put on a show. And I think that's really, if you can come away with one thing, that's probably the most important thing you can take away with you.

[00:32:06] Eric Neiman: How about you, Jon?

[00:32:08] Jonathan Brollier: Yeah, I agree with Teddy. I'd also say that there's value in brevity. And to, from the get go, help the jurors understand that when you're talking, it's going to be germane, and it's going to be incisive, and it's going to be worth paying attention to, and not to belabor it. I'm going to talk to you one on one as a person.

[00:32:30] Jonathan Brollier: This is a case that's really important to my clients. How do you feel about the following issues? And to just jump in it, help and engage them in some conversation with their colleagues in the voir dire, but to be pretty tight so that they know that when you're talking, it's something that's worth paying attention to.

[00:32:52] Eric Neiman: Thank you everyone for watching and listening. And please subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts.