Well, hello. My name is Cole Riddell and I'm excited to present today on a topic that we've titled The Art of Voir Dire, as we say it down here in the South. Some of you may know it as voir dire, but we're essentially going to be talking about jury selection. Just to tell you a little bit about myself, as I said, my name is Cole Riddell. I work at a law firm called Haltom and Doan. We are a trial and appellate counsel here in Texarkana, Texas. We're licensed in the states of Texas and Arkansas. And we try cases in both state and federal court in primarily Arkansas and Texas, but throughout the country as well. We've had cases in California, Oklahoma, Missouri, New York. So essentially we're trial counsel. And that's why I'm excited today to talk about jury selection, because I think it's one of the most important, if not the most important part of the trial. Ultimately, you've worked on your case for years. And the as much as you know the case and as much as you may like or hate your case, it's ultimately in the hands of the jurors. And that's what we're going to talk about today, is how to get the best jurors for you. So I want to start by looking at an overview of what we're going to talk about today. We've got six topics. We're going to start by looking at voir dire under both state and federal law. Just a few of the statutes and case law from different states and the federal area on what you need to know about voir dire before you go in. Then we're going to get into our third topic and talking about challenges for your jurors. So we're going to look at peremptory strikes and for cause challenges. And then we're going to get into more practical things in topic four, five and six. First, we're going to look at how to effectively use voir dire, whether it's before you get in there and making sure that you do your homework or what you're going to do during voir dire. Topic five is going to be looking at how to use social media for voir dire. This is extremely important in this day and age and we'll get into it later. But if you're not using social media for voir dire and especially beforehand, then I think you're really missing out on on some key background info on your jurors. And then finally, luckily and hopefully we are out of the Covid 19 pandemic, but things have changed and jury selection has changed. And so we're going to talk about how that's changed and some obstacles that you may run into after Covid, trying to pick a jury and how to best pick the jury moving forward. So. If we look at this first slide, we've got our panel sitting there already in the box. But I've pulled a case that talks about jury selection here in the state of Texas. And it says that the primary purpose of voir dire is to inquire about specific views that would prevent or substantially impair jurors from performing their duty in accordance with their instructions and their oath. So essentially, under both state and federal law, litigants and our clients are guaranteed a right to a fair and impartial jury. The Sixth Amendment guarantees a fair trial by a panel of impartial and indifferent jurors. We've all heard these terms in law school and in practice that we're looking for a fair and impartial jury. But that's not really the case. What we're looking to do is find our ideal jurors. Jury selection is more so about jury selection. And I think that's very important because when you're in voir dire and you're up there trying to find out information about your potential jurors, you're really trying to deselect people that aren't going to be good for your case. That's the best thing that you can do for your client while you're trying to select a group of jurors that are good for you, you're trying to deselect and get jurors that are bad for your case and bad for your client out of the way. So that's what we're going to talk about today. Let's talk about voir dire. Under state law. Now, some of you may be watching in Texas or Arkansas or New York or California. And so we're going to get into some of the states that I practice in. But all of these can be applied to your own state, and it's going to vary slightly, but it's pretty much the same. So let's talk a little bit about voir dire. Under state law and what we're looking at in the state law context. So first we're going to talk about the scope of questioning when you're in voir dire. The scope of questioning can vary. Some states allow a wide latitude of questions that you can ask. Other states may limit it and some states may not let you ask questions at all. It may be a judge led jury selection process. So you really need to look at at what you're allowed to inquire about in your own specific state. As I said, in some states, the judges ask all the questions during jury selection. Some allow the attorneys to do the entire voir dire. Some just have the judge may have a standard set of questions that he asks, and that could be it. Or he may allow the attorneys to speak. It can differ state to state and court to court. I would always advise you to ask the judge to at least allow you some time to ask questions yourself. I think that's very important. Another thing we need to look at is time limits. Again, this is something that varies state to state and court to court. We've been in cases where there's no time limits on jury selection. We've been limited to as little as 15 minutes to question the entire panel. So that's something that you need to look at and know before you go in on that day when you pick your jury. Voir dire can also differ on how it's actually done. It can be done on an individual basis or a group basis. You may question jurors individually, you may question them in small groups, or you may question the panel at large. Again, this is something that varies state to state. Also jury selection methods. Again, most states use a strike system. We are going to talk about this later, but you're going to have certain peremptory strikes and certain times that you can strike for cause to reveal because you've revealed a bias or the judge's questions have revealed a bias. And so you need to know in your state and specifically in your court what how many strikes do I have? And that varies from state to state. And then finally, you need to know what your jury composition is. So you need to know how many potential jurors are going to be in the panel. You may have 30. You may have 50. You could have 100. And you need to know, okay, am I limited to my first 10 or 12 already on the panel? And then we're going to strike through the rest of the panel? Or is it going to be a random draw? And it's jurors from the entire panel. This is important to know because you need to know if I'm basically limited to the first 10 to 15 jurors, I want to spend most of my time asking questions directed to them, engaging with them, or if it's random, you need to make sure that you can cover as many people in that panel as possible. So like I said, I practice primarily in the state of Texas. And so we're going to look at what Texas law has to say about certain rules of voir dire. And again, this could be similar to your state and it may vary, but I wanted to just show you what it looks like under Texas law. All right. So we're going to look at voir dire under Texas law. And here I wanted to look at a specific statute. You can see that it's quoted at the bottom, but we've got five main reasons as to why a jury, a juror, may be automatically disqualified. The first one is if the juror is a witness in the case. Obviously, if they're a witness in the case, they cannot be a part of the. Of your actual jury panel. Second, if they're interested, whether directly or indirectly in the subject matter of the case, they're not allowed to be a juror. Third, if they're related to any party in the case, and this could be important a specifically in a class action context. If you're in a small town, you really need to make sure that you don't have anybody in the in the panel that is related to one of the parties because they're not qualified to serve. And then fourth, if they have a bias or a prejudice in favor of or against a party in the case, that's another one that is an automatic disqualification. And that's something that you're going to be able to pull out during voir dire. And then five, whether or not that juror has served previously in a in a former trial or on the same case, if you're in a criminal context, if they served on a grand jury or if they've served in a retrial of a case before, then they're not allowed to try to sit on your panel in this case. All right. So next, let's go look into some do's and don'ts under Texas law. This is some different topics that courts have said you can and you cannot do. And we're going to look at six of them right now. First again, as we said, a panelist relationship to a party. You can ask questions as to whether or not one of your potential jury members is related to a party that's fair game. You can ask all the questions that you want. Second, you can ask about their relationship with an attorney or an organization of the attorney that that person belongs to. I always like to ask, especially if I'm trying a case in a small town and the other side has local counsel, or if I'm local counsel, Hey, does anybody know Mr. Smith on the other side, more so than not, you're going to have people that do. And most of the people I would think would like that attorney and that could reveal some bias or prejudice. So you need to make sure that that nobody in your panel either knows that attorney or knows someone in that attorney because you may be at a disadvantage from the beginning if they're friends with Mr. Smith or Mr. Smith's partner that works at the same law firm. Third, you need to know whether or not an inquire as to whether they have some kind of bias or prejudice that's been caused by the media. Now, on the civil context, there's there's not as much coverage in most of your cases. And so this may not be an issue, but if you're trying to pick a jury in a in a criminal case or in some, you know, highly publicized local case or, for example, recently in the Johnny Depp trial, you need to make sure that the jurors don't have a bias or prejudice one way or the other based on media coverage that they've seen before they got into. You can explore that topic, and I would advise you to explore it thoroughly. Next, you need to look and see whether or not the jurors have a bias or prejudice against the type of lawsuit that's filed. A great example of this is the McDonald's hot coffee case. Everybody that doesn't know the intricacies of that case and how severely damaged that woman was may have a bias or prejudice against bringing that type of lawsuit. And so you need to and are allowed to inquire as to whether or not you bring a personal injury case or a breach of contract dispute as to whether a juror has a strong opinion one way or the other as to whether or not that lawsuit may be a money grab or a frivolous or something like that. So you're allowed to explore that line of questioning. Fifth. You need to make sure that none of the jurors have a bias or prejudice in favor or against a party because of their nationality, their wealth or their status. These are all proper topics that you can explore, and that's definitely going to get you a four cause strike that we'll talk about later. So you need to ask questions that explores to make this line of questioning to make sure that they don't have a bias or some sort of prejudice because of how wealthy your client is or because your client comes from a different country. You need to explore those questions. And then finally, you need to explore whether or not any of your juror members are acquaintances with any potential witnesses. This also applies to any any potential party or client. You need to make sure that a jury member sitting out there doesn't happen to be best friends or friends of a friend with your opposing counsel or their clients or their witnesses. That is proper voir dire examination. And you really need to look into that to make sure that you don't have somebody that's biased just because they know the person. Now, on the flip side, I want to talk about a few things that Texas has said you cannot go into. And there are seven things. First, you can't discuss the law that's going to be applied in the case. The judge is going to instruct the jury on the law. That's not something that's proper for you to do during voir dire. All right. Second, you're not able to get too much into the questions concerning the jurors comfort. You need to be very careful with the questions that you frame and how you ask them and make sure not to cross that line and get into too personal with the jury and asking things that may not be appropriate. Third, you don't want to get into the personal lives of the families or the parties of their attorneys too much. Now, this is a fine line. And as we'll talk about in a little bit, I always like to give information about myself because I want the jurors to do the same thing. But again, you can toe the line, but you don't want to cross it and get at get too detailed into personal lives of of either the families of the panels or the parties or the attorneys. Fourth, you don't. Well, I say you don't you're not allowed to argue evidence that's going to be produced at trial. Now, again, this is a fine line. During jury selection, you have a great opportunity to start presenting your case. But you can't do it directly. You have to do it indirectly. So you need to make sure that you toe that line and not get too far into the actual facts of the case or discussing any evidence because the other side is going to object and the judge will shut you down. Fifth. You don't want to ask questions that are designed to prejudge the evidence. Again, this is something that's kind of a gray area. I like to use analogies so that we're separate from the facts and the specific circumstances of this case. But you're not allowed, at least under Texas law, to ask questions that are designed to prejudge the evidence they're going to be presented in the actual case. Sixth, you are not allowed to advise the panel of certain monetary limits and especially monetary limits on exemplary damages. You're going to discuss that during the case. It's not proper during voir dire. And finally, you're not allowed to make golden rule references. So during jury selection, as hard as it may be, we do want the jurors to sort of put themselves in the position of our client and in our in our party. But we are not allowed to blatantly say, put yourself in my client's position or ask questions that would put them in that position. You need to stay away from that. So let's move on to looking at some of the differences that apply in the federal context and looking at voir dire. Under federal law, the voir dire examination process under federal law is very similar to the process of most states. But there are some key differences and there may be differences depending on what court you're in, whether it could be in the same division, and it could be different by from district to district. But you need to know that before you go in. So let's look at a few examples here. Well, I want to talk about standardization. So the federal voir dire process tends to be more standard from court to court than it is in state court. In federal court, you see judges often that have a list of questions that they ask, and they want to do that first and foremost and figure out if they can reveal any bias or prejudices on the front end. So you're going to see more judge led questioning in federal court and then hopefully you're allowed to question after that. But just know that in federal court, it's a more standardized process than it is in state court. Again, judge led questioning. That's very common. Most of the courts that I practice in and that we try cases in, the judge always begins the voir dire process with a standard list of questions. He then allows us to ask questions after. But that's not always the case. You need to know what those questions are going in so that you know what information that either the judge, he or she is going to potentially get from the potential jury members. With that said, you're going to have limited attorney questioning. So it's very important to know what do you need to know from these potential jurors before you get in there? You're not going to have much time in federal court, especially as much as you would in state court, to to fully examine the panel. And so you've got to be very narrow and specific with your questions to make sure that you're getting answers that you need in that short amount of time. Now in a federal court, we're mainly looking at a full panel. You're examining a panel of jurors. It's not individually an individual examination. You're mainly going to have between 30 to 100 people and you're going to have to question the full panel at that time. And so, again, it varies from court to court, and it may vary from jurisdiction to jurisdiction, but you need to know what that looks like before you get in there. And finally, you need to look at the different jury selection methods that may apply in the court that you're in. As we're going to talk about with the strikes in federal court, you're generally unless the court orders, otherwise you're limited to three peremptory strikes. For cause strikes and being able to challenge a juror just because they have a bias or prejudice that has been revealed during voir dire. You need to know if you're limited on those. Most courts that I've practiced in give you an unlimited amount of strikes for cause, but some courts limit it. You need to know how many peremptory strikes do I have, how many for cause strikes do I have? And again, as we discussed earlier, you need to know, am I are my original ten panel members going to be the start of my jury or is it a random draw? You need to know what the method is before you get in there because it's going to change your entire voir dire. So make sure to know what the method is of that court as to how they do jury selection. Let's get into talking about some of the juror challenges. And we're going to start by looking at challenges for cause. Here we have six different things that I want to discuss when it comes to challenges for cause. So the first one is the burden of proof. The burden of proof is on the challenging attorney. If you want to strike a juror for cause. It's your burden to prove that that juror is biased or has some sort of prejudice against your client. That burden of proof is on you, and the other side is going to make you satisfy that burden of proof. It is a subjective standard. We may think that a juror is biased or prejudiced, but ultimately it's up to the discretion of the judge and the judge. And courts are different and may vary on on what they believe is actual bias or prejudice. And so it is subjective. Finding a bias or prejudice is not an objective standard. It's a subjective standard. Again, when you're looking at challenges for cause, you may be limited in the number of challenges that you have. This may not always be the case. In my experience. You have a wide number, plenty of challenges for cause, but you need to know whether or not you are limited on the rare circumstance that you may be limited to, say, three strikes for cause. You need to make sure that you use those on the three jurors that are the most biased or the most prejudiced against your client and against your case. Now with one problem that we run into when we're talking about challenges for cause is time constraints. It can be extremely difficult to get a juror struck for cause, and you're going to need to ask several questions to make sure that you've met your burden of proof and have explained adequately to the judge and to the court why that juror should be struck for cause. So you need to be careful about how much time you spend, because if you spend all of your time trying to strike one juror for cause, that may not allow you adequate time to examine the full panel. So you need to be very careful with your time when trying to move to strike for cause. Another difficulty that we have with trying to get for cause challenges is the jury's candor. You've got to get the jury talking. You have to be engaged with them. If a juror just sits there and doesn't say anything or maybe raises their hands affirmatively to to answer a question one way or the other, you're not really getting into the subject matter of what that juror actually believes. So you have to get the jury talking so that you can meet your burden of proof to actually strike that juror. And then finally, there's always rehabilitation when it comes to a four cause challenge. There are numerous times that I've been picking a jury, and I thought that I had this juror dead to right. Essentially that she was biased against my client and she had a prejudice against my client. Well, at the end of it, the other side or the judge is going to have the opportunity to question that juror. And it could be something as simple as the judge saying, you know, Miss Smith, despite your past experience with Company A, can you listen to all the facts and evidence that are presented in this case and be fair and impartial if you're selected? And if she says, yes, it's it's going to be tough to overcome that because they may have revealed a bias or prejudice. But when the other side gets to rehabilitate that juror or the judge does, then it may not your your cause strike may not be successful. So you need to know that even though you're spending all this time trying to strike a potential juror, there's always the chance that juror is going to be rehabilitated. And at that point, it's probably likely that you need to use one of your peremptory strikes because you've spent so much time focused on why that juror was bad for you. And if you can't get them struck for cause, you're probably going to need to use one of your peremptory strikes. Let's talk about those peremptory strikes here. I want to talk about four things specifically. One is there's a limited number of them. It can vary from state court or federal court, and it varies from court to court. So like I said, for example, in federal court court in excuse me, in federal court, you're normally limited to three. The federal rules of civil procedure give you three peremptory strikes unless otherwise ordered by the court. So normally you're going to be limited to three peremptory strikes. And remember, you can use these strikes for anything. It doesn't you don't have to have a reason. You don't have to have a basis. It just can't be discriminatory. And so if you have a jury member that you believe is not going to be good for your case, hopefully you don't have that many of them, but most of the time you're going to be allowed three strikes and you can remove that jury from that. Juror member from the panel, as I said, peremptory strikes normally do not require justification. However, there is a prohibition against discrimination. The other side may raise a Batson challenge and say that, you know, your your peremptory strike is simply used because for some discriminatory reason. So you need to be careful with that. And if you are striking someone that it could potentially raise a Batson challenge on the basis of race or on the basis of gender, then you need to be ready to back that up and tell the court that you are not discriminating against this person. You're striking them for some other reason. That could be where you actually have to provide justification. And finally, you are going to get scrutiny and objections from the opposing counsel from time to time on your peremptory strikes. As I said, you're limited to three of them. And so if there is a questionable Batson challenge that may be raised, then you should expect that you're going to get an objection from the other side. So again, be ready to justify the reason that you use that peremptory strike and the way that you have that evidence and that kind of ammunition to justify your strike is by asking questions and getting the jurors engaged. You need to know and be able to provide a basis for why you're striking that juror if the opposing counsel objects. All right. We've talked about kind of the the state and federal background rules of voir dire and looked at some of the challenges. And now I want to get into how to effectively use voir dire. I think this is very important because I do think it's an art and that's why this. This is titled The Art of Dyer. And I think that the more you do your homework and the more you study voir dire and jury selection, the better that you get at it. And so what I want to do is look at some ways that I think you can master the art of voir dire and effectively use it to help win your case. So first I want to talk about pre voir dire homework here on the screen, you can see a juror questionnaire. This is a questionnaire that we have used in the past. What we like to do is if the judge doesn't send these out ahead of time, normally we like to get with the other side and try to submit a joint jury questionnaire because this allows you to get a ton of information about the juror before they even show up that day. This is extremely important, especially when you're limited in time because it gives you the ability to learn a bunch of key facts about a potential juror member without even asking any questions. So to zoom in here and look at one of the specific questions, Question ten on our juror questionnaire is usually very telling for us. And the question is simple Do you have any special training, education or experience in the following areas? And we have a bunch of different occupations and things listed for the juror to select. You can see that we have accounting, we have computer software or programming. We've got law enforcement. There's some patents, banking, there are various occupations. And depending on the case, you would love to know this information before you come in. Most recently, I was doing a favor for one of our federal judges here in town, and I was trying a pro bono case for a client that was a prisoner and he had been assaulted while he was in prison. And the the the actual facts of the case was that the the prison guards did a poor job of protecting my client. And so this certain question on the questionnaire was extremely important for me because if I had a juror that selected that they were either in law or law enforcement or they had experience with it, I was going to ask them a ton of questions because I need to know, are they going to be fair and impartial when I've got prison guards on the stand and law enforcement officers, are they going to be able to put aside their bias and prejudice as a law enforcement officer or as a family member of one? Are they going to be able to be fair to my client when he is a prisoner and he is going up against prison guards and law enforcement officers? That's why jury questionnaires can be invaluable in giving you key information before you even get into the courtroom and start selecting your jury here. I want to show you a little cheat sheet that I like to create based off of the questionnaires that go out. I have it redacted. This is one of my actual cheat sheets from a case. But as you can see here on the left column, it's a it's got all the names of my potential jurors. This is information that was given to me by the court right before jury selection. It was it was a day or two before. And it also comes with the second column. You can see their occupation. So I know what each and every juror member what their occupation is. I then create a note section there in the third column and I'm writing notes to myself so that when I'm up there picking a jury and I'm talking to a certain member of the panel, I have notes that I have, you know, written down about them from my research based on their job occupation or based on what I found out about them in my research. That leads me to the fourth column. I've got a column there for Facebook. I have Facebook profiles of all of the jurors that I was able to find. And the Facebook profiles are very telling, and I'm able to tell much more about the juror from their Facebook profile than I ever am based on the questions or the answers that they give me during jury selection. Another thing that I like to do is on this last column, you can see it says keep. And I have Yes. Written on a few of them. These are jurors that I believe are going to be good for my case or strong for my case. It may change when I get in there, but it is a preconceived notion that I have going in that, hey, this is someone that I want to keep. So, you know, let's figure out how can I keep them or get them on my jury to the same thing. And it's not listed here. There are several knows. I may know that somebody is bad for me. As I was talking about in that prisoner case, there may be a prison guard that. I know is friends with one of the witnesses in the case. So I'm going to write no and make sure to bring that up during jury selection so that I can get them off of the jury. I can strike them for cause, and I have justification for doing so. Second, how to effectively use voir dire. You have got to know the rules of the game, and I want to look at a few things that you definitely need to know. Let's look at three of them. First you need to know how many potential jurors, jurors are in the panel. It's very important to know how many people am I going to be speaking to? How many do I have to ask questions to? And we talk about time limit limits. If I only have 30 minutes, I need to know where do I need to direct my attention? Who do I need to ask questions to? So you definitely need to know the rules of the game. And one of the most important questions rules is how many potential jurors are going to be in this panel? Second, you need to know whether each juror or potential juror should be identified by their name or a number in most cases. Juror Potential juror members come in to the courtroom and they're all assigned a number. And some judges are very particular on whether or not you only refer to them by their juror number. And then I've also had judges that don't want you to refer to them by number. They want you to be respectful and refer to them by name. That could also cause some homework issues because you need to learn these people's name based on their number. So that's something that you need to know and it differs from court to court, but you need to know whether or not the court is going to want you to refer to the juror members by name or by number. And then third, you need to know how much time you're going to have for voir dire. This is extremely important. This is something you have to know before you go in, whether it's at your pretrial conference or even, you know, a day or two before. You need to know how much time you're going to have to examine the panel. That is going to change everything about the questions you ask and how much time you're going to spend talking to certain juror members. Now, third, I think another great way to effectively use voir dire is to start your jury selection by telling the panel about yourself. You are asking people to come into a courtroom and decide your case. And in the jury selection process, you're asking them to give information and to be engaged. And these people, while I would like to think that some of them are excited about jury selection, most of them, in my experience, are not and they don't want to be there. How are you going to ask these people questions and try to get information from them if you're not going to tell them about yourself? So one thing that I start with and I found it extremely effective is I start by telling them about me, my background and my family. And I'll share that with you here today. My I was born and raised in Texarkana. I practiced law here in Texarkana, and my entire family is here. I also come from a family of schoolteachers. My wife is a schoolteacher. My mother is a schoolteacher. My grandmother is a school teacher. Now, my father, he works at a paper mill. He joined out of the Air Force, came back home, started working at the paper mill, and he's been there for 37 years. Now, why is it important for me to share those facts? Here's why. In most of the panels that I'm in front of, I have teachers that are on that panel. I told them that I come from a family of teachers. Maybe they can relate to me. Maybe they will open up to me and know where I'm coming from because we've formed that connection that, Hey, they're a teacher. I come from a family of teachers. Maybe they will trust me just a little bit more to give me some information so I can adequately assess whether or not they're going to be good for my case. Another reason in Texarkana and in South Arkansas, in East Texas, we have a lot of different mills. We have lumber mills, we have paper mills. We have a bunch of our potential jurors that are working in these environments. So when I tell them that my dad has been there and he's been there for 37 years, well, they know what my dad's gone through. And that's the same position that they're in. And here I am, the son of a of a gentleman who's worked in a paper mill for 37 years. And he raised me. And I'm hoping to connect and create another bond with that potential juror. So I think it's only fair for you to tell the jury about yourself before you start asking questions, because you need to make them comfortable. You want them to share. And if they know something about you, in my experience, they're more willing to give you information about themselves. Fourth. I think this is super key in voir dire. You don't need to simply be talking the entire time. You need to actively listen and most importantly, follow up. Jury selection is all about asking questions, but more so it's about getting the answers and getting the information that you're going to get from those questions. I have sat in numerous jury selections where an attorney asks a question and he gets an answer, and I'm sure that he's going to follow up on that. But he chooses not to, and he moves on because he's simply going through a list of questions and he has limited time. If you get an answer, you've got to listen to that answer and you need to follow up because it may reveal a bias or prejudice or it may say it may reveal something good for your case and you want to do everything you can to keep that potential jury member on the panel. So you have got to listen and make sure to follow up to the answers that you get. Five. And finally, I think another key factor during jury selection is finding your leaders. Now, when I say find your leaders, there are going to be people in the panel that they love to talk frankly and they want to answer every question that you have. Those people are more so likely to be your leaders. And you want to know if we get this certain person on the panel, are they good for me or are they bad for me because there is a like a strong chance that they will volunteer or their their other panel members may elect them to be the four person. And the four person is extremely important because he is leading the discussions back in the jury room after the case and when they're deliberating. So you need to find your potential leaders. One way that I love to find leaders is by asking scaling questions. And what I'm talking about with scaling questions is I may ask a broad question and I want everyone in the panel to answer it. And so I may ask a question, for example, such as? I think that big companies oftentimes have an advantage over individuals. Okay. Now I'm going to ask that I'm going to state that question and I'm going to ask the jury. From a scale of 1 to 10, who agrees, one being, oh, I disagree. I don't think that corporations take advantage of individuals. And ten being. Oh, I strongly agree. I think that corporations do oftentimes take advantage of individuals. Most of the time you're going to have someone answer 3 or 4 somewhere in the middle or maybe a 1 or 2. And what you're going to find is, is that every member, jury member, as you go through the panel, will say the same thing. They may say, Oh, yep, I agree. For four four. All of a sudden you're going to get an eight. Somebody that goes against the crowd. What does that tell you? It tells you that person's a leader. That person is not simply going with the flow. They are opinionated. They're not afraid to express their opinion. And you really need to focus on that person. You need to find out, is he good for your case? Is she bad for your case? Because the fact that they spoke up and they went against the crowd means that they're not afraid to lead. And that's one way that you can easily find leaders in a crowd of 30 or 50 or 100. All right. Next, I want to talk about social media and how you can use social media during voir dire and in your jury selection. Social media is extremely important now in 2023, and it has been for the last few years and it continues to grow. I pulled a recent study that says that in the United States alone, there are over 302 million social media users in 2023. So when we look at that number and we compare it to the US population, that means that 90%, nine out of ten people have at least one social media profile. And when I'm talking about social media, I'm not just talking about Facebook, I'm talking about Twitter, Instagram, LinkedIn. You can even find certain valuable information on somebody's Reddit history or their Pinterest pages. You need to be using social media before you get to jury selection so that you can find information that you're never going to be able to figure out. Once you get inside a courtroom with 50 or 100 people. So the most important thing that I can tell you is social media can easily reveal biases that you're not likely not going to figure out once you get in the panel. So here I'm going to read this in a second, but I want to set the background. This was from a case in Georgia or Mississippi several years ago where a nurse was on trial for manslaughter. And this was in the news in the small town there in Georgia or Mississippi. And there were several comments. And, you know, on Facebook and this was one of the comments that was on a news article about the upcoming trial. And here this potential juror said if she would have done her job, the victim would still be alive today. So, yes, she is guilty of murder. He was her responsibility as long as he was in jail and was responsible for her checking his sugar and administering his medication. And because she failed to do her job, he died. So, hell, yeah, she's guilty. It doesn't take a genius to see this. Now, this comment goes along with many other comments that were on that were posted on this news article. But what's important about this comment is that the the lady that wrote this comment ended up on the jury that convicted this woman of manslaughter. The jurors in the case or the attorneys in the case tried to raise this after the fact, but they didn't do their homework before. They had no, they didn't. Look at this lady social media profile. They didn't find that this comment on the news article. And so, unfortunately for them and unfortunately for the nurse, we obviously had a biased and impartial or biased and prejudiced juror because she's prejudging the evidence based off a news article. She's telling you that this lady's guilty and somehow, some way, this lady ended up on the trial, at the trial as a jury member and in fact, did find this lady guilty of murder. You need to use social media. You've got to use it. It's invaluable. A quick review of this lady's Facebook page would have revealed this comment and they would have easily been able to disqualify her for cause. But they didn't, and it was extremely detrimental to their case. So let's talk about how to use social media. What I've done here is I've gone through a few different social media profiles of people that are from my area and from my town or from towns that I've tried cases in. And I'm not friends with them. And that's important because when you're looking at these juror members and you're researching their Facebook's or their LinkedIn, we'll talk about the ethical concerns in a little bit. But you are not going to be friends with these people. They are going to be strangers to you. And so how can you go to their Facebook or how can you go to their LinkedIn and what information can you get from that? Let's get into that. So here, this is a a person that was actually on a jury that I picked, and she ultimately ended up being on my jury panel. And I want to walk you through how I knew more about her by looking at her social media pages before she even got in the courtroom. So here first off, you can see I've tried to redact all the information so you can't know who this person is. But up in the top left corner, you can see that she has 1.7 thousand Facebook friends and she had two mutual friends. What does that mean? That means that I am Facebook friends with two of her Facebook friends. What did I do with this information? I immediately picked up the phone and I reached out to these two mutual friends of ours and I said, Hey, tell me about Miss Smith. What what does what does what does Miss Smith believe in? What what kind of juror do you think she's going to be? Does do you think that she's going to be fair? Do you think she's going to be impartial? Is she quick to judge? Is she going to, you know, basically help or hurt my case? I was able to use my mutual connections to this person and find out information directly from people that knew her. Something that I can't do in a courtroom. I'm not going to be able to get that information. This is one reason that Facebook and LinkedIn and other social media profiles are so important. Now, you can go through even though I'm not friends with this person, you can go through and you can look at some of their posts. You can look at information that they've put out there, some of their photos. You can look at their check in locations to figure out maybe they've traveled somewhere or they've checked in somewhere. You can get all of this information even if you're not friends with them. Now, this varies because some information is private or hidden, but you are allowed to explore information that is out there and presented to the public. This profile might as well be posted on a billboard on the way to the courthouse. It is there for you to look at. And as we'll get into in a little bit, judges and courts are expecting attorneys to go look at this information before they go into jury selection. So I told you that my family I come from a family of teachers, and this juror really resonated with me because she is also a teacher. You can see here that she works at Hooks ISD. It's a it's a little school outside of my home town. You can see that she studied psychology and has a college degree. That's important for my case because during that jury selection I had 4 or 5 teachers. And so when I was trying to toe the line of introducing facts or evidence from my case, I used an analogy that included teachers. As I told you, it was a prisoner case and it was all about prison guards failing to protect my client who was in prison. And so I used an analogy where I talked about dropping your kids off at school and how, you know, teachers are so important to our system, but they're most importantly, they're there to teach our kids and they're there to protect our kids. Same with the school nurse. The nurse is there to protect the kids that are in their school. And so I was able to toe the line and show that, hey, I want to tell you about what happened in my case. But instead of being able to talk about the facts and talk about that, it was a prison and there were prison guards, I used it in the context of a school, and all the teachers agreed that it was a large part of their job. And part of the reason that they're teachers is because they're there to protect the kids that are in their care. That ended up working out extremely well in our case. And I would never have had that information, at least to this extent, if I hadn't used Facebook, called our mutual connections and known that she was a teacher. Let's look at another profile. This is a Facebook profile of someone from my hometown that I am not friends with. And I just wanted to see what what information can I get about this person that I'm not friends with. But let's say they were on my panel. What could I tell you about this panel? And this lady did not have a bunch of stuff in her about section. I was not able to see her photos or her videos. Most of her account was locked down. That happens from time to time. But what was public was the pages that she likes. And so that's what you're looking at here on the screen. Let's look at some of these likes. Okay. Starting in the top left, we've got a page called for Patriots. You scroll across, you can see several social media influencers. One of them there, Brandon Gill, is posing with President Trump. She's liked a page called Conservative Truth. Down in the bottom, you can see Explain America with President Trump and Governor DeSantis, and then you can see that she's liked the page for First Baptist Church of Texarkana, Texas. What does that tell me about this person that tells me that this person is conservative, strongly conservative. Some phrase that we use sometimes in talking about folks is they're a Trumper. They they support Trump and they are extremely conservative. You can see that she liked First Baptist Church. I know that she's religious. I know that she's a Southern Baptist. I know the church that she attends. I attended the church as a child. So I am able to take this information and go explore. What's this lady like? I'm able to go to some of the church members and ask. I'm able to look and see that she's conservative. And I can tell you that that is extremely important to my case. Why is this information important to my case? Well, let's it depends on the case. But if I am a plaintiff and I am going and asking for big money in a case, okay, I'm wanting the jury to award $500 Million or $50 million to my client. This lady is likely not going to give me that amount of money. Conservatives are never as or not never. But they're not as likely to award high damages amounts, especially here in my hometown. So I don't want this person on my jury. Now, if I was asking questions during voir dire, I how do I get this information? I'm not going to ask her about her political beliefs. I'm not going to ask her about what church she attends. But by looking at her Facebook, I got all this information. I got everything I need to know, and I can follow up on other questions now. But I know that she's extremely conservative and she's extremely religious. And so if that's not going to mesh well with my case or with my client, I know that I can strike her weather for a cause or with a peremptory strike, you've got to use the information you get on social media during your jury selection. This is another example of how to use social media. This is a LinkedIn page and this is someone that lives near my hometown and I am not connected to this person. But again, you can see in the top left that we do have a mutual connection. So when I saw this, I again picked up the phone and I called our mutual connection and I asked a few questions. So what else does a LinkedIn profile tell us? Well, up top you can see that this lady is a senior accountant. You can see in the about section that she graduated near the top of her class from her university. You can tell she's smart. She's got a background in accounting and finance. You can see her work history moving over to the right side. You can see she's been an accountant for the last ten plus years. You can see her education. She studied at Southern Arkansas University from 2009 to 2013. She, as I said, she's smart. She's got a 3.92 GPA. And you can see that she's selected in the bottom right there, several skills that she believes she has. So you can see that she said that she has problem solving skills. Well, what's that? Tell me. It tells me that she thinks that she would probably be a good juror on my case because she's going to listen to both sides and she's knows that there's a problem and she's going to solve it. And that's what jurors do. They solve our problems. So with this information, why is it important? Why is it important that I know that this woman sees herself as a problem solver and that she's intelligent and that she's an accountant? Well, here's one example of why I would not want this win. I would not want this person on my jury. If I have a plaintiff's case and I have an extremely difficult damages model. And I don't think that it is very sound, but I'm just hoping that the jury latches on to it because they like my client or some of my witnesses. I don't want this woman on my jury. She is going to scrutinize my damages model and I may have a damages expert that gets up there and talks about how sound the damages model is. But this lady is extremely intelligent and she's an accountant. She is going to scrutinize my expert's testimony. She's going to scrutinize the the expert report and the graphics and the figures that we've provided them. This is someone that I probably don't want on my jury. Now, on the flip side, if you are a defendant in that case, you absolutely want this person on the jury. You want this accountant to go back there and say, hey, I do this for a living and I can tell you that something's off with these numbers. They're asking for way too much money. Now, again, I may have gotten that she was an accountant through my questioning or through a juror questionnaire, but I have got so much more information from the social media profile that's blasted to the public. I've got this information before I walk in. It is crucial to have this information. This has been discussed in some cases. And I want to talk about this case very quickly. This is a case out of Kentucky called S+, v Commonwealth. And in this case, there was a ten year old boy who was killed by a drunk driver. And what happened at trial and during jury selection is there were actually two people that ended up sitting on the jury that were Facebook friends with the mother of the ten year old that was killed. Now, during the jury selection process, none of this came up. It wasn't discovered and it wasn't raised until after the fact, when the the driver was found guilty of both the DUI and, unfortunately, killing the ten year old. And so what happened is, is the state of Kentucky and throughout the appellate courts and the Supreme Court, they looked at whether or not a new trial was warranted. And when they were looking at that, there were several questions directed specifically to the attorneys as to how did you not know this? Why did you not go on Facebook and look at these people's profiles and find that they were friends with the mother of the victim? Now, ultimately, the the court did not the Supreme Court did not overturn the verdict and did not grant a new trial. I believe the words they used was it was an inadvertent falsehood and failure to disclose by the jurors. But the Supreme Court looked and analyzed as to whether or not the attorneys had a duty to look at this, the Facebook connections of these jurors. And again, they said that it didn't rise to where they had a duty. But the fact that we have courts and supreme courts, state supreme courts at that, questioning what attorneys should have done by using Facebook for social media only shows you how important social media is in voir dire. So I would advise you to go look at the V Commonwealth opinions and make sure to familiarize yourself with what the courts expect of attorneys and how to use social media. Now, of course there are ethical concerns and this social media is new ish in the legal context over the last 5 to 10 years. And there are different opinions from the American Bar Association and different state ethical offices. And so it's good to look at those. But the hard line, bright rule that every court and every association has looked at is you cannot send a friend or a follow request to potential juror members. As I said, anything that's out there for the public, you can go get that. It's it's like it's on a billboard, but you cannot add a potential jurors, a friend for the sole purpose of looking into their private information that is improper and it is not allowed. So when you're looking at doing your social media research before you go in, please, please, please make very careful that you are not adding someone as a friend and you're not following them on LinkedIn or Instagram or something like that. That is a big no no and likely will ultimately end up in some sort of sanctions for you and or your client. Now, finally, we're running out of time here, but I want to just talk about voir dire after Covid 19. Now, we'll start with this picture. This was from Law.com as we were in the middle of the Covid 19 pandemic. And this attorney showed up for a hearing in this dress and and counsel and the court got a good laugh out of it. And thankfully, we're not in this position anymore. So you won't see this in trial or in jury selection, but there are still certain effects of Covid that we are feeling in jury selection. And I want to talk about a few of those. One thing that courts that we practice in are doing is they are sending out letters to jurors and they are still taking precautions. So here you can see a letter from our chief judge in the Eastern district of Texas, and this is from 2020. But up until a few months ago, he is still sending out letters similar to these. But these are going to jurors saying, hey, you've been selected for jury service. I want to let you know that, you know, we understand that the Covid 19 pandemic may have caused some fear, but we are doing everything that we can to make sure that your jury service, that you're comfortable and that you're going to be protected. We've got certain, you know, precautions in place, and we want you to know about that beforehand. One of the biggest precautions that we're still seeing is social distancing, especially in jury panels. When you've got 50 or 100 people in a courtroom, especially after Covid 19, when you still have people that choose to wear masks, you've got people that are going to be very uncomfortable. So we tried a case just a few months ago where we still applied social distancing protocols during the vorderer and jury selection process. We had people spread out and we in another case, we divided the jury panel into two groups so that we didn't have so many people in a close proximity. So again, this is just one example of how Covid has changed the way that we do voir dire and changed the way that we do jury selection. And you need to know about this. You need to know about it ahead of time and be cognizant of it. Now, unfortunately, another thing that we've run into is trials and jury selections done by Zoom, as you can see here on the screen. This is Judge Emily Miskell in. She is a state court judge north of Dallas, and she was one of the lucky judges that had the opportunity to do jury selection and a trial by Zoom. And as you can see here on the screen, it would be very difficult to pick a jury and try a case when you have such small boxes like this. Actually, in this case, the lawyer joked that it looked like The Brady Bunch and there were so many people in the panel that not everybody was on the screen at the same time. How can you pick a jury and ask questions and read facial expressions over Zoom? It's extremely difficult. And if you have to do that, you need to work with the other side and work with the judge on certain precautions and procedures that you can set up to make sure that you are effectively able to question each and every person that may sit on your jury. You do not want it to look like this, and you certainly don't want people that may be on your panel that aren't even on the screen. So you need to be careful with how you perceive how you pick a jury by Zoom. And so if unfortunately, if you have to pick a jury by Zoom, I want to give you a few tips on how to present effectively online and via Zoom. So first, you need to talk to the camera and listen to the screen. Eye contact is extremely important, and it's a way for you to engage with the jurors, even though they're not in front of you and they are virtual on a screen. So what we tend to do is we look at the screen, we may be reading something and it looks like we're not interested or we're distracted. Make sure to look at exactly where your camera is. You need to make eye contact with the jurors to make them pay attention. Second, you want to be at eye level and you want to set the scene behind you. You don't want to be in a random closet with all of your storage behind you. You want to be make sure to set your backdrop. You want to make sure that your backdrop is not distracting from the message or the questions that you're asking. It's extremely important because it's hard enough to keep their attention. Your backdrop shouldn't be something that distracts them. Another thing that's important is adjusting the lighting. You need to make sure that they can see you. It's just as important as your backdrop. You don't want to be too bright. You don't want to be too dark. So make sure that your lighting is sufficient before you start your jury selection or before you start your trial. Next, you've got to test everything. Look, technology problems happen, and, you know, if it happens, you move on. But it's important that you test your equipment and you test the Zoom functions or the Microsoft team functions. You test all of that before you get into your jury selection. And then finally, please make sure to continue to engage with your potential jurors, even though it is a virtual jury selection and you're not in front of them, you still have to get them to engage with you. So a lot of these tips are going to help talk to the camera, make eye contact. You need to not be distracted. You've got to keep them engaged. And so even though you're presenting online and you're picking a jury online, you still got to engage with them, ask the jurors questions, make sure that they're answering. Don't allow them to just sit there on mute and be distracted by the TV in the background or the dog in the other room. Make sure to engage with them. So that wraps it up for today's class. I hope that you all have learned some information and how to master the art of voir dire. I've got my email address listed below. It's [email protected]. Please feel free to reach out to me if you have any questions. If you'd like a copy of any of the articles or the presentation, I would be more than happy to help. I'm always excited to talk to fellow attorneys as to how I can be better at voir dire and how I can help someone else be better. So please feel free to reach out to me and thank you again for attending this. I hope that you have learned something and it will help you in your next voir dire session. Thank you.