Many called, few chosen: Putting jurors on the couch

Put aside, for a moment, the finely tuned briefs and the elegant legal rhetoric.

Put aside, too, all that law school training about common law, statutes, and tightly reasoned arguments focused like lasers.

Trials often are won and lost during jury selection. And the lawyers who fail to recognize that can be setting themselves up for nasty falls.

For two hours recently, two veteran trial lawyers with Dechert L.L.P., of Center City, downloaded their combined decades of experience in what is arguably the most critical juncture in a trial. A dozen or more first-year associates soaked it all in.

In years past, young associates might have been assigned early on to a trial team and might have been able to learn by doing. But now the cases are bigger, more complex, and junior lawyers typically are given only narrow slices and little overview.

Lawyers Joseph Hetrick and Matthew DelDuca said the purpose of the session, part of a yearlong program on litigation techniques covering key procedures such as taking depositions and making closing arguments, was to give these lawyers a look at the larger picture of trial strategy.

The session on jury selection was enough to give anyone needing encouragement about the fairness and logic of the justice system a mild case of vertigo.

For jury selection, as important as it is, is not so much about the law as it is about group dynamics, human psychology, and settling for a result that - while not good - is sometimes less bad than the alternatives.

Take for example the story that Hetrick likes to tell about a lawsuit against a pharmaceutical company in Texas, which in the world of litigation is deemed to be a kind of Wild West.

During jury selection, plaintiffs' attorneys learned that one juror was a fan of Oprah Winfrey and had posted adoring missives on her MySpace page.

That seemingly useless and trivial piece of personal information became a pillar for a closing argument that would have made a pandering politician green with envy.

"The lawyer said, 'You can send a message to this drug company that Congress can't send, the FDA can't send - and you may even get an appearance on Oprah,' " Hetrick said. "The woman, of course, lit up like a Christmas tree."

And the pharmaceutical company lost the trial, although it later won on appeal.

Big companies faced with a win-or-die trial will sometimes spend millions of dollars to test their trial strategy and arguments in focus groups in much the same way a car company or a movie studio will try out a product before it is released into the market.

But some of the most important decisions are made by a handful of lawyers who, at the outset, have the task of helping to select the jurors who will sit in judgment of their clients.

Each has his or her own techniques.

DelDuca, in laying out the fine points (some might say black arts) of jury selection, said personal experiences tend to outweigh broad-based political and cultural views.

So a potential juror might think of herself as a conservative and typically be skeptical of lawsuits, but if she had had a recent run-in with her boss, she might be sympathetic to the plaintiff in an employment case.

Everything is calculated, from the questions that are posed to prospective jurors to the way lawyers greet the jury pool when it is first brought into the courtroom. While some lawyers prefer not to make eye contact, DelDuca said he liked to nod in their direction and smile as a kind of greeting.

"As everyone's mother always told you, 'You never get a second chance to make a first impression,' " said Hetrick, who was raised in the Port Richmond section of Philadelphia. "So you should not be looking at your BlackBerry or vomiting, you know, the things that one tends to do before you start a trial.

"I have seen people who ignore the jury panel. I don't like that. I don't want the first impression of the jurors to be that I don't care or respect them enough to look at them."

This is the sort of stuff they do not teach in law school.

DelDuca, who handled jury selection for Dechert, a 900-lawyer firm, in the Vioxx trials, tends to be on the alert for any potential juror who might take a leadership role. If the juror looks to be leaning in the direction of DelDuca's client, all the better. But if there's a chance the juror might go the other way, watch out.

DelDuca will try to get the juror removed, either for a cause, such as bias, or by using one of a handful of peremptory strikes that lawyers may use to remove someone they believe will hurt their cause, but has said nothing to indicate they are biased.

The kind of case will sometimes determine the kind of juror DelDuca is aiming for.

In drug-company cases, he said, "the most important thing we look for are critical thinkers; people who would look at the evidence and draw their own conclusions. We were looking for jurors who had a certain amount of respect and deference to authority."

In employment cases, where again DelDuca defends the employer, he said, "I am focusing on personal responsibility and are they looking at the actions of the employee. I am looking for skepticism."

Key issues all, asserts Hetrick, because by the time jury selection is finished, the case may be over.

"The data shows that 80 percent of jurors make up their minds at the end of opening statements," Hetrick said. "The conclusion that is often drawn is that you win or lose your case based on the opening statements. I think the conclusion is that you win or lose based on the jury you pick."