ILNews

Nordstrom: Author provides jury selection strategies

Rodney Nordstrom
May 25, 2011
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Commentary

“Principles and Practice of Trial Consultation”

Dr. Stanley L. Brodsky has an impressive pedigree. He is professor of psychology at the University of Alabama in Tuscaloosa, where he coordinates the psychology-law PhD programs. He is the author of over 200 articles and 12 books, including “Testifying in Court,” “The Expert Expert Witness,” and “Coping with Cross-Examination.” He received the 2006 Distinguished Contributions to Psychology and Law Award from the American Psychology-Law Society and was a recipient of the Distinguished Contributions to Forensic Psychology Award from the American Academy of Forensic Psychology. In addition to his prestigious awards, he maintains a private practice in trial consulting and forensic psychology.
 

book-cover-2-1col.jpg

As a leader in the forensic psychology field, Brodsky provides relevant chapter titles in “Principles and Practice of Trial Consultation” discussing expert witnesses, changes of venue, witness preparation, and jury selection. He sheds light on the use of trial psychology in high-profile cases such as the Oklahoma City bombing and the Kobe Bryant cases. Other topics include capital murder, police brutality and racial bigotry.

The book’s strongest points are aimed at the trial consultant wanna-be and those interested in technical jury selection nuances. Brodsky advocates using supplemental jury questionnaires and his experiences with change of venue studies are replete. The criminal defense attorney will find chapter 8 on jury selection on Internet sex offenders quite interesting due to this rapidly growing area of litigation. The author also gives specific suggestions for voir dire in eminent domain and capital murder cases and uses many examples from his actual trials and depositions. There is a worthwhile section regarding deselecting authoritarian-type jurors.

Some of his best advice illustrates his use of the storytelling model and narrative which he calls the “story spine,” a technique originating from improvisational theater. The attorney and consultant collaboratively seek to fill in the case story by completing the following beginnings of sentences:



Once upon a time . . . .

And every day . . . .

But one day . . . .

And because of this [can be repeated up to three times] . . . .

And because of that . . . .

Until finally . . . .

So that forevermore . . . .



Working through this exercise helps both the trial attorney and consultant construct a story that enters into the sensory experiences of the jury and keeps the focus on the case theme.

Jury selection by attorneys is typically demographic, simplistic, and ill-developed from a social science perspective. Brodsky discusses Clarence Darrow’s oft-cited jury selection strategies used in the 1930s. It was common for defense attorneys in criminal cases and plaintiff attorneys in personal injury litigation to use their peremptory strikes to eliminate potential jurors who were Republican, rigid, right-wing, conservatively dressed, middle-class or wealthy, as well as being employed in occupations seen as impersonal, such as accountants and engineers. Today’s prosecuting attorneys in criminal cases and defense attorneys in civil cases often use similar stereotypes as they strike Democrats, liberals, casually dressed, working- or lower-class, apparently empathic persons who are employed in occupations seen as caring or helping, such as social workers, school counselors, and union organizers. Although this method for jury selection was once popular, it has since been discarded by experienced trial attorneys.

My criticisms of the book are relatively minor. First, the book advocates rating potential jurors on a number of psychographic and personality dimensions during voir dire. I have experimented with various rating scales and because they are so cumbersome, it is difficult to use them efficiently in the courtroom. Rating scales are nice but simply not practical in the courtroom. In voir dire it is hard enough to ask the right probe and listen to the answer. A second observer should be used to record the reply and then rank the responses accordingly. This drives home the point that you always need at least two people when selecting your jury; one asking questions and one evaluating the answers.

Nor does the text adequately address case strategy and presentation during opening and closing statements. Also absent is a discussion on a case theme development, a topic most important for trial lawyers. Most of the book is aimed at criminal trials and is best suited for students and beginning consultants rather than experienced trial attorneys and seasoned consultants. It could best be used as a part of a trial advocacy course in law school. He recognizes his limited experience with small research dynamics; consequently, this topic is underemphasized in the book.

All trial attorneys are looking for an edge when it comes to more efficient and successful case preparation and presentation. This book is a worthy read for trial attorneys looking to take a more jury-centered approach and beginning trial consultants. Brodsky’s book is a serious contribution in the growing field of trial consulting and trial work-up. He offers a practical, effective framework for those interested in gaining the edge in the trial setting. It is an easy read and user-friendly. The hardback book consists of 320 pages, lists for the reasonable price of $35 and is published by Guilford Press.•

__________

Rodney Nordstrom, Ph.D., J.D. is a trial consultant practicing in the Midwest, www.litsim.com. The opinions expressed in this column are the author’s

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  2. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  3. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

  4. If our State Government would sue for their rights to grow HEMP like Kentucky did we would not have these issues. AND for your INFORMATION many medical items are also made from HEMP. FOOD, FUEL,FIBER,TEXTILES and MEDICINE are all uses for this plant. South Bend was built on Hemp. Our states antiquated fear of cannabis is embarrassing on the world stage. We really need to lead the way rather than follow. Some day.. we will have freedom in Indiana. And I for one will continue to educate the good folks of this state to the beauty and wonder of this magnificent plant.

  5. Put aside all the marijuana concerns, we are talking about food and fiber uses here. The federal impediments to hemp cultivation are totally ridiculous. Preposterous. Biggest hemp cultivators are China and Europe. We get most of ours from Canada. Hemp is as versatile as any crop ever including corn and soy. It's good the governor laid the way for this, regrettable the buffoons in DC stand in the way. A statutory relic of the failed "war on drugs"

ADVERTISEMENT