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REVEALED: How Jury Selection Really Works in a Civil Lawsuit in New York

First, let me tell you how it DOESN'T work.

Lawyers DO NOT walk into a courtroom and pick the jurors they want.

That's NOT how it works.

Lawyers DO NOT request certain types of jurors for their case.

That's NOT how it works.

Lawyers DO NOT tell jurors they will have to stay at a hotel near the court house for the duration of the trial.

That's NOT how it works.

Ok...enough of me telling you how it DOESN'T work.

Let me share with you how jury selection really works.

You've been summoned to court.

You get that dreaded summons that tells you to appear for jury duty.

Before showing up the next day it tells you to call in to see if you're needed.

Maybe the first few days you called in you were NOT needed.

You breathed a sigh of relief.

Then, one night you called in and were told to appear in court in the jury room at 9:30 a.m.

You put your job on hold.

You put your child-care duties on hold.

You put your errands on hold.

Everything that you did during your day now takes a backseat to your job as a juror.

Because that's what this is.

A job.

A job you MUST apply for.

Just because you get called as a potential juror does NOT mean you will be selected as a juror to sit in judgment on a real case.

No, you don't need a resume.

No, you don't need to ask for a salary.

But, you do need to be interviewed.

You do need to dress the part.

Unless of course you don't want the job.

Not a lot of people do.

They'd rather be at their job.

They'd rather be with their family.

They'd rather be doing anything but sitting in a courtroom listening to opposing sides fight it out.

Then again, there are plenty of people who DO want to sit on a jury.

They don't mind being away from work.

They (secretly) don't mind being away from their family during the day.

This could be exciting.

This could be more interesting than what they normally do during the day.

They might even get paid by their job for sitting in court each day.

Plus, it might give them a sense of civic accomplishment to sit on a jury and decide a case.

The cases I'm talking about are civil cases not criminal cases.

Nobody is going to jail.

Nobody is being accused of a crime in these cases.

Instead, I'm talking about accident cases.

Wrongful death cases.

Medical malpractice cases.

Cases where someone has been injured by someone's carelessness.

Cases where an injured patient is asking for money as a form of compensation.

Cases where an accident victim can no longer work and support his family.

Cases where a family member has died.

These are civil cases.

Once you are told to appear in court, you arrive early to go through court house security.

It's almost like going through airport security, but nicer.

Put your bags on the conveyor belt as they are x-rayed.

Take off your belt, cell phone, wallet and watch and put them in the x-ray machine.

Then walk through the magnetometer.

Assuming you get through security, you will make your way to "Central Jury."

You'll find the clerk who will check you in or tell you to find a seat in the large hall and wait till your name is called.

That's the beginning of jury duty.

Now, it's simply a matter of "Hurry up and wait."

Once you're checked in you literally sit around the large central jury room waiting.

Waiting for your name to be called.

Waiting to be called into a windowless room to speak to the attorneys.

Waiting to be told what this case is about.

Waiting to be asked questions.

Waiting to hear what the other people serving jury duty say in response to questions from the attorneys.

Some people wait all day.

Some are called right away.

It all depends on how many cases are scheduled for jury selection that morning and that day.

In a separate courtroom, not far from central jury, a trial assignment judge decides when and if a particular case is sent out for jury selection.

How that happens is a topic for another article.

If the trial assignment judge decides a case needs a jury for trial, the attorneys show up in central jury.

"Judge Jones told us to pick a jury," says the attorney for the injured patient to the jury clerk.

"Ok. Give me the name of your case and the identifying number (known as an index number) of your case. You'll be in Jury room #2. Have a seat in there and we'll get you jurors in a few minutes," says the jury clerk.

The jury clerk now will call 25 to 30 jurors who have been sitting in the jury hall.

You will gather where the jury clerk has her desk and she will likely walk all of you into Jury room #2.

There is no discussion.

Just "Follow me if your name was called."

She leads you right into Jury room #2.

You all shuffle in.

A room without windows.

A cramped room.

With about 30 seats.

One or two tables up front.

Two strangers in suits and briefcases sitting or standing by the front of the room.

The jury clerk hands one of the attorneys a stack of name cards and walks out.

That same attorney walks over to a circular drum on the table, opens the compartment and drops the name cards in the bin.

He then spins the bin a few times.

The first six seats at the front of the room have intentionally been left empty.

The attorney opens the drum on the table, reaches in and calls out a name.

"Mrs. Jones, please have a seat up front in seat #1," the attorney says.

He then repeats this process five more times.

Six people are now sitting in the front row.

They don't know why they've been selected to sit there, they've just been told to do so.

That's the very beginning of jury selection.

You're now in a room where you're going to hear a little bit about what this dispute involves.

If you have been selected to sit in the one of the first six seats at the front, you will be asked many questions.

Questions about what you do for a living.

Questions about your experiences.

Questions about your knowledge of the issue involved.

Questions about your experience with jury duty and with lawsuits.

Questions about your past medical history and familiarity with the medical issues in this case.

Questions about how you feel about people who bring lawsuits and about people who defend them.

You will be asked to make promises and to have the courage to speak up even though your opinions may be unpopular.

If you are picked to sit in the first six seats, you are now applying for a job as a juror.

Congratulations.

You have a chance to be picked as a juror.

Let's assume you want to be a juror.

Let's assume your schedule permits you to serve as a juror.

You hear first from the attorney who represents the injured patient.

You learn this patient brought a lawsuit against her doctor.

She claims he was careless and caused her permanent injury.

"Sounds interesting," you think to yourself.

You don't know if her claim yet has merit.

You haven't heard any testimony.

You haven't seen any evidence.

You haven't heard from the doctor's attorney yet.

It's way too early in the game to come to any conclusions.

Or is it?

The patient's attorney, known as the Plaintiff's attorney, begins asking you questions.

The plaintiff is the person who is bringing the lawsuit.

The defendant is the person who is being sued.

Here's a series of questions you are likely to be asked.

  • What do you do for a living?

  • Does your spouse work?

  • What hobbies do you have?

  • Ever been involved in a lawsuit before?

  • Ever served as a juror before?

  • How has your medical care been?

  • What do you think about people who bring lawsuits?

  • Do you think that just because the doctor is defending this case it means he didn't do anything wrong?

  • Have you heard about the McDonald's coffee case?

  • What are your thoughts about that?

  • Do you think there are frivolous lawsuits?

  • Can you be open to the possibility her doctor was careless.

  • Do you think doctors should be held accountable for their actions?

  • Did you know that you don't have to sit here for weeks trying to decide if we are 100% correct?

  • Did you know you don't have to make absolutely sure that what we're claiming is true. Instead, we only have to show that we're ever-so slightly more right than wrong.

These questions are designed to see if there's anything in your background that might cause you to lean in favor of one side. 

These questions are asked just of the first six jurors in the front row.

To learn what other questions an attorney will ask during jury selection, I invite you to watch the video below and then continue reading...

The other jurors sitting patiently in the room will get their chance to answer these questions as well.

Once the patient's attorney is done with his questions, the defense lawyer has a chance to ask questions as well.

If the patient's attorney has gone on at length, a smart defense lawyer may simply say "I'm going to be very brief, unlike my colleague here." Then, he might ask just a couple of questions for the first six people, then sit down.

The trial assignment judge tells the jury how much time each one has to question jurors.

What happens if there's a dispute amongst the attorneys during questioning?

Let's say I ask a juror if he knows that we don't really have to prove anything to win our case. Instead, I only have to show that we are slightly more likely right than wrong.

The defense lawyer might have an issue with the wording of my statement.

Factually and legally it's a correct statement.

However, a defense attorney might argue that I'm talking about the law with the jurors and that is prohibited.

In that instance, we will likely need to have this issue resolved by the trial assignment judge to decide if I'm right.

If I am, then we simply return back to the jury room and continue our questioning.

If I'm wrong, then I move on to another topic when we return back to the jury room.

After each attorney has had a chance to question the first six jurors the attorneys excuse themselves and walk into the hallway.

This is now when they 'pick jurors'.

Actually, that's not true.

We don't pick the jurors we want.

Instead, we pick the jurors we don't want.

Actually, that's not true either.

We remove the jurors we don't want.

This process should be called jury de-selection.

You see, each attorney has the opportunity to remove a certain number of potential jurors that he does not like.

For whatever reason.

In New York, if there's just two attorneys in the case, each lawyer will be allowed to removed 3 jurors for any reason whatsoever.

We don't need to remove all three at once.

We have to be very careful with how many jurors we take off.

Why?

Because after the attorneys have removed any jurors they felt would be harmful to their case, now additional jurors from the room are selected to fill in the remaining seats at the front of the room.

Let's say I removed one juror and my opponent removed two jurors.

That means whoever is left sitting there are now jurors on this case.

That means we now have three jurors selected.

See what I mean?

We don't pick the jurors we want.

We get the jurors on our case by default by removing those jurors whom we DON'T want.

Whoever is left, now becomes a juror who will sit in judgment on your case.

Now we go back into that circular drum on the table.

The one with all the name cards.

We randomly pick three names as ask those people to come to the front of the room and have a seat.

The questions start all over again.

Similar to the questions we asked the original six people who were sitting in the front row.

The second round of questions usually go quicker since the jurors have heard the questions before and can almost anticipate the information we're looking for.

After this second round of questioning is finished, the attorneys again head out into the hallway to discuss which jurors, if any, we are going to remove from our panel.

I can still remove two jurors.

My opponent can only remove one more.

Let's say for example that I remove two of the three jurors because I didn't like what they had to say.

My opponent decides to remove this last juror as well, feeling he would be harmful to his case.

That means each of us can no longer remove any juror for any reason.

Legally, we say that we are out of peremptory challenges.

A 'challenge' is an attorney objecting to a juror.

A 'peremptory challenge' is simply an attorney's ability to remove a juror for any reason.

We don't have to give a reason.

To learn how many challenges each lawyer gets, I invite you to watch the video below and then keep reading below the video...

In a case involving just two lawyers, each lawyer typically will get 3 peremptory challenges.

But we still have three jurors that must be selected.

Each attorney is out of challenges.

When we return back to the jury room, we again reach into that circular drum with the remaining name cards and randomly select the next three names.

Those three jurors sit at the front.

We start asking them the same or similar questions to what they heard us ask the other jurors.

There's a difference now.

The jurors don't know it, but the attorneys, having no more challenges to remove any of them, are carefully listening for anything that might automatically disqualify them from serving as a juror in your case.

This is a medical malpractice case.

One juror says her doctor treated her badly and she feels all doctors are liars.

She feels they charge too much and are in collusion with the insurance companies.

Well, the attorneys are not going to change her mind.

Do you think this juror will give the doctor whom you have sued a fair shake in this trial?

Unlikely.

In addition, she may have poisoned the rest of jurors sitting in the room by her biased comments.

Where it is clear that this juror is biased, the attorneys will try and see, privately, if they can both agree to remove her from the jury panel.

The injured patient's attorney might like this juror. A lot.

He might want her sitting on the jury.

The defense lawyer sees her as the devil.

The attorneys cannot reach an agreement to keep her or remove her.

To learn how I try and remove a juror when my oppenent refuses to agree, I invite you to watch the video below and then keep reading...

What happens next?

Since the attorneys cannot remove this juror because each one has exhausted their challeges, they have only one option left.

Talk to the Judge who is supervising jury selection.

In case I didn't mention this yet, there is no Judge sitting in the jury selection room.

If the attorneys have a dispute, like the one I just described, they must now speak to the Judge.

"Judge, this is a medical malpractice case. We have a potential juror who says her doctor treated her poorly and feels that doctors charge too much and are in collusion with insurance companies. I feel she is biased and prejudiced and I ask to remove this juror for cause."

That means he's giving the judge a reason why this person should NOT sit as a juror on this case.

Legally we say this is a 'challenge for cause'.

The judge will hear arguments from each lawyer.

He then must decide whether to keep this juror or excuse this juror.

In this case he decides the juror has to go.

That means this juror is excused and the other two people who were also being questioned are now jurors on your case.

That means there's one juror left to pick.

The attorneys return back to give the news to those three people.

Another name is selected at random from the bin.

This juror steps up to be questioned.

After five minutes, each attorney has learned what they need to.

"Do you have any challenge for cause?" each one asks.

"No," they both respond to each other.

"Great, we now have a jury of six members of the community."

BUT WAIT!

Jury selection is not over yet!

Why not?

What happens if one of the jurors gets sick and can't return to court one day?

Does the trial stop while we wait for the juror to get better?

No.

What happens if a juror has an emergency and cannot come back to court?

Do we start the trial all over?

No.

Instead, we select spare jurors.

We call them alternate jurors.

These spare jurors sit in the courtroom listening to all the witnesses and evidence just like the first six jurors.

They all sit in the jury box together.

They all sit in the jury room together.

They all take their breaks together.

There's only one difference between the first six jurors and the spare jurors.

If the trial finishes and all the jurors have been present throughout the trial, those first six jurors then go and deliberate to decide if we are more likely right than wrong.

Those first six jurors will answer a series of questions in order to reach a verdict.

Those spare jurors will be excused at the end of the case.

They do not get to participate in jury discussions.

They do not get to reach a verdict.

Instead, they are sent home with the thanks of the court.

That means that we must now select alternate jurors.

Depending on the complexity of the case and the anticipated length of trial we may be told to pick two or three spare jurors.

Our challeges now reset.

That means that each attorney will usually have one challenge per remaining seat.

That means that we can remove one juror for each seat we need to fill, for any reason whatsoever.

Once we've used up that one peremptory challenge, we'd have to ask the judge to remove an unfavorable juror for a specific reason, for cause.

Only after we have finished de-selecting the spare jurors and being left with whomever is sitting in the seat, we can now report back to the Judge that we have finished jury selection.

At that time, the Judge will check to see which trial judge is available to try our case.

Once we have been assigned to a trial judge, the jury clerk will give the selected jurors instructions on when to return back to court to begin trial.

"You are to return tomorrow at 9:00 a.m. and go straight to courtroom #3 on the second floor," she says.

In the meantime, the attorneys must meet with the trial judge to go through some preliminary matters before starting your trial.

To learn more about how jury selection works here in New York, I invite you to watch the quick video below...