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One Lawyer’s Jury Selection Secret Weapon & The Cause Challenge Tango · Coopers' Code

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  Does anyone here know what this is?
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  Mr. Smith, do you know what this is?
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  Of course, Mr. Smith kind of dumbly looked at the thing and
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  said a stapler. You would think that, but that
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  is not the case. This is a gerometer.
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  Welcome to Cooper's code. We've got a snack sized
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  recording for you today. And this is in response to a
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  question that we received from Jason in Sacramento.
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  Jason was listening to the episode with Larry Kern, which
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  is a fantastic deep dive if you have not already listened to
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  Larry and some of the stories about what it was like to
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  litigate back in the old days and be a babysitter to Melvin
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  Belli's son, it's a pretty good listen.
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  So Jason's question related to a discussion about Larry Kern's
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  use of a gerometer. You did use a tool that I hadn't
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  seen before that I sometimes incorporate.
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  What's that? I remember you starting your
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  jury selection and walking over and borrowing the stapler from
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  the court reporter. And you said to the panel, do
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  you know what this is? And the panel said a stapler.
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  And you said no, this is a drama and you laid it on the table.
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  Oh, you use it? And on occasion in in the right
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  environment, I have found that that has been something that has
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  helped me on cause challenges. Yes, to get people in a more
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  amused way to acknowledge that yes, I am a cause challenge.
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  Get me off. Well, we we'd have to go in a
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  long time about using this gerometer or jury meter.
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  But the original, I want to give credit to the original lawyers,
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  Steve Tigerman. Oh, really?
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  Yeah, I got it from Steve Tigerman and it's terrific on
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  challenges in, I had a good judge up in Stockton who
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  defending A paraplegic horrible case.
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  I got 22 challenges for cause in one case.
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  No one's ever done that. And I've had the judge referring
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  to the the juror where are you on Mr. Kern's meter?
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  That's awesome. Yeah, that is awesome.
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  And he would say, is there any way to change your reading on
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  Mr. Kern's meter? No.
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  Now when you say you're biased or something, they'll say, well,
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  you'll put aside your bias and you'll be fair and impartial.
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  Is this a worse garbage you could talk about?
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  But a meter is insensitive. So the meter they can say, no,
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  I'm not going to ever change my view on a meter.
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  So yeah, it's terrific. What Jason explained is that we
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  did not go into detail in terms of how that drama worked.
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  And so I'm going to go through it.
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  I, I will not do it justice. When I first saw Larry do this
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  in the courtroom when he was on the other side, it was really,
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  really effective. And I'll explain it orally also
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  on YouTube because sometimes a visual related to this can be a
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  little bit more helpful. But in essence, the drama is a
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  technique to help demonstrate either a bias or a lack of bias
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  when you're working with jurors. So when you're in jury selection
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  at an appropriate point with the the jury, you say to them when
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  you reach over and grab something in, in, in this case,
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  what what Larry used was a stapler.
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  So he grabbed A stapler and asked to borrow it from the
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  court reporter and he held it up and he said, does anyone here
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  know what this is? Mr. Smith, do you know what this
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  is? Of course, Mr. Smith kind of
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  dumbly looked at the thing and said, hey, a stapler.
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  And Larry said you would think that, but that is not the case.
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  This is a gerometer. When you take this gerometer and
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  you put it and he, Larry then laid it down on the table and he
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  had it in essence with the tip of the the stapler at at 0.
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  So we'll, we'll pretend the tables in front of me if, if, if
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  you're watching the YouTube, but you have that right in the
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  midpoint. So as I ask you questions, Mr.
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  Smith, this gerometer will tell me, are you leaning ever so
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  slightly in favor of the plaintiff and he moves it
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  towards the left, or are you leaning ever so slightly in
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  favor of the defense and move it a little bit towards the right?
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  The technique with this, it requires a little bit of
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  practice and a little bit of timing it.
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  It can come across flat if you don't rehearse it with a, say a
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  colleague or if you aren't particularly good in comedic
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  timing. Then as you're going through
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  things when you're working with a juror, you use the drameter
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  every so often. You you'll refer to it and say,
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  well, Miss Doe, it seems like as I'm speaking with you, you might
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  have some, some long held beliefs, some some deep feelings
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  about people in in the situation like the plaintiff here does.
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  Does that mean that if I'm looking at my durometer, is it
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  tipping ever so slightly to the left in in in favor of the
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  plaintiff? And once you start getting a
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  toehold there, you start using the bias technique where you
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  help work with someone to help them get off the case for cause
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  so that you don't have to burn any peremptories.
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  Hope that helps explain the gerometer technique.
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  Some people have asked some questions about how the the
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  cause challenge technique is used.
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  I've had the privilege of of working with a number of
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  tremendous trial lawyers over the years and I've seen
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  different people approach it different ways.
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  There are certain words that seem to work best with helping
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  the judge understand that a juror is not the right juror for
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  that particular case. So a lot of a lot of judges,
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  they want magic words. They want to hear the juror
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  themselves say I cannot be fair or some variant of that.
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  The challenge is that most people believe in their heart of
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  hearts that they can be fair. So getting jurors to the point
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  where they can say I cannot be fair requires a little bit of of
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  an escalation technique. And we have an article on this.
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  We'll link to it in the show notes.
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  It's the articles called Entirely Impartial.
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  It's on our website at cooperslaw.com.
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  The technique is an amalgamation of things that I've, I've
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  learned over the years from the late Karen Joe Koonen, from
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  Cynthia Mcguinn, from Rich Schoenberger.
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  And it was, it was Karen Joe Koonen who I, I first heard the
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  use of the word neutral. It is a lot easier for people to
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  talk about neutrality than it is to talk about being fair.
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  So when you come across someone who you think might be a juror
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  that you want to have that cause tango with, you can say to them,
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  it it sounds, Mr. Smith, like that that might be a deeply held
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  belief, something that you've you've held onto for a long
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  time. Would you agree that that might
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  make it hard for you to be entirely neutral?
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  As it relates to, to my client John here, Mr. Smith might say,
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  yeah, it it might be hard for me to be an entirely neutral.
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  So would it be fair to say that that as far as neutrality is
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  concerned, you, you, you lean ever so slightly, maybe just a
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  little bit in in favor of of the defense?
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  Yeah. I, I, I'd, I'd say that's,
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  that's fair. So as far as that's concerned,
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  if, if, if we kind of keep going through this piece, it would be
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  hard for you to be entirely impartial as, as far as that's
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  concerned, sounds like you, you, you already have a, a little bit
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  of partiality towards the defense.
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  Yeah, yeah, I, I, I would agree with that, by the way, that
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  those are magic words right there.
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  Entirely impartial is part of the standard when you're doing
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  jury selection the, the, the California Rules of Court, you
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  want to be able to cite to the judge about the entirely
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  impartial piece. That's why you're using that
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  language. If we're having some challenges
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  here in terms of being entirely impartial, would you say that
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  perhaps if you're arriving here, this is a case where perhaps you
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  might be a, a better juror for a different kind of case, say like
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  a DUI case as opposed to, you know, this case?
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  Like you said, you've had these experience with cyclists running
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  through stop signs. You think they, they all have
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  challenges? They, they all are, are pretty
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  attitudinally inclined towards, towards not stopping.
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  That's what you've seen. Yeah, that's what I've seen.
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  So you'd agree that perhaps being on a DUI case might be a
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  better case than say a civil case over who was right, who was
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  wrong at an intersection involving bikes given, given
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  your, your history with bikes. Yeah, I, I, I think that might
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  be true. So, so as we go through this,
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  this can be a a challenge for people, but, but it sounds like
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  as we've talked about you, you feeling like you are not
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  entirely neutral, that you're not entirely impartial.
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  Would it be something that that you would agree with that it
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  might be be difficult, even a little bit difficult for you to
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  be entirely fair as far as as my client John is concerned?
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  Yeah, yeah. I mean, it's hard for me to say,
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  but but it might be hard for me to be entirely fair.
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  So, and the reason we're going through this is the judge has
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  certain standards that that have to be evaluated.
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  Would you agree that you, you, you cannot be fair as far as as
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  John is concerned when it relates because John was on a
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  bike and you've had these experiences with the bikes?
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  Yeah, I, I would agree with that.
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  So you'd agree that you, you you cannot be fair as far as as John
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  is concerned and evaluating this case?
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  Yeah. Yeah, I would, I would agree.
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  And you'd agree that if you were in John's shoes, you absolutely
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  would not want you, somebody with your detailed beliefs to be
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  on the jury. Yep.
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  Yeah. I'd, I'd, I'd agree with that.
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  And so would you agree that you should not sit on the street?
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  You, you, you cannot be impartial as far as this is
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  concerned. You've already made-up your mind
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  because of your deep held beliefs were led to bicycles
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  that that John was in in the wrong and the defendant was in
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  the right. Yeah, I'd.
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  I'd agree with that. I really appreciate your your
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  your being direct. You're being candid.
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  We we've asked for brutal honesty and and you've delivered
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  it. And I I really appreciate that.
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  Mr. Smith. I saw a couple of other nods,
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  Miss Doe. Mr. Thompson, I saw some nods as
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  you were going along. Let's talk about either of you
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  have some similar beliefs as far as as Mr. Smith is concerned.
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  So what you've done is you've, you've very slowly warmed the
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  water and you've made it OK for that person to come out and and
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  say that they they cannot be fair because that's often times
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  that magic phrase that you want. So once you get to that point,
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  you want to make sure that you have in your pocket the 1899
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  railway case. I won't have the citation.
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  I'll put in the show notes, but but there's a case that that is
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  directly on point that says once a juror has said that they
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  cannot be fair, they cannot be rehabilitated just by the judge
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  saying, if I sit here and order you to be fair, you'll be fair,
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  correct? And, and I say that because
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  judges seem to think that that is an appropriate method for
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  rehabilitation. So you want to make sure that
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  you have that citation and that you can bring that up if the
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  judge indeed attempts to do that.
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  So with that, you should be all well on your way towards getting
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  some some jurors offer cause, which is the right thing to do
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  with jurors who have biases. So with that, please e-mail us
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  at podcast at Coopers Outlaw with questions, comments,
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  feedback and suggestions for who you would have on the show.
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  Like what you heard? Share us with a colleague and
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  leave us a five star review on your podcast platform of choice.
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  To all of you doing justice out there, happy hunting.