So glad to know that you will be co-leading this upcoming Seminar on Voir Dire! Thank you for that. As students consider whether to attend or not, thank you for sharing your thoughts about TLC’s Voir Dire methods and TLC in general.
How have you used voir dire where you really felt that the TLC methods were what won that part of the trial for you? I would say that the cases that have gone really well for me are the ones where I made a genuine connection with the jurors using TLC methods. Almost every trial lawyer would agree that picking a jury is one of the hardest things we do in trial. We know legalese, we know the law, but none of that is really suited for meaningful conversations with jurors. Trial lawyers distrust jurors and Jurors in turn distrust us. It all goes wrong because trial lawyers have a general misunderstanding about how to talk with jurors in a meaningful way. For example, trial lawyers often push their theories of the case on jurors to see which ones will take or reject the bait, making the jurors feel manipulated. Because of TLC, I no longer do that. I learned to respect and trust jurors. In fact, I learned to be thankful, genuinely thankful, that they are willing to take time from their lives to listen to my case; I need them because my clients cannot get justice without them. At TLC, I learned how to earn the jurors’ trust and how to build a group willing to work with me during the trial for justice. The TLC method requires us to hear, really hear, the juror; to understand the juror; to be grateful for the juror’s honesty, even when it is terrifying; to share honestly with them as we engage them in conversation; and to be ourselves. In turn, jurors reciprocate our candor and effort with trust and with their willingness to listen to us. This is what has made the difference in my trials.
Tell me about a case where the TLC voir dire method really succeeded for you.
Well, we tried a case in Federal Court about a year and half ago. As usual, we had some jurors that disliked trial lawyers and appeared to me that they would gladly support tort reform. In particular, I remember one juror that talked about a negative experience he and his partner had with a personal injury lawyer. HIs partner had been injured and pursued a claim, which resulted in the trial lawyer taking more money than his partner took home. The juror was justifiably upset. He talked about how the system was unjust, adding that it only served the trial lawyer and the entities that sought reimbursement from his partner. The juror made it known in his own way that he felt I was part of the unjust system that profited from injured people. Instead of avoiding his comments, especially because I was terrified knowing he was against me, I used the methods I learned at TLC to candidly speak with the juror. I acknowledged among other things that the system was flawed, that I would in fact profit from the verdict, and that injured people are never really made whole. Because of that honesty, he and the other jurors never held it against me. At the end of day, the jurors gave us a very nice verdict, more than we had expected from the conversations we had during jury selection. They knew exactly how the money was going to be divvied up and they still took care of our client.
Will these techniques be taught at the upcoming Voir Dire seminar?
Absolutely. One of the first things we will learn at the TLC Seminar is that we do not need to imitate anyone to do really well in jury selection. Rather, by being ourselves, we learn that we have the power and skill to successfully communicate with jurors. We can, and will, have the same success that Gerry Spence and other great trial lawyers have had in jury selection. We next learn how to be genuine in front of the jurors, which requires candor, openness, acceptance, and vulnerability. We also learn communication skills that have nothing to do with the spoken word, like eye contact, body posture, sound, and silence! All of this makes for genuine communication. If we learn to be genuine with the jurors and abandon the dreaded “lawyer” role, we become one of them; we become part of jury. We just end up being the one in the courtroom that is guiding them to justice. When we do it this way, jurors get on board and say “yes, we are going to do this job together because we all want justice.” That is what Gerry Spence teaches and talks about in every program; he often says that the TLC method is not about picking juries, it’s about building a tribe– a community of people who work together to resolve a real human problem in a way that will be just and fair. The TLC verdict says to the community, “We are not going to tolerate injustices for the people who come to these courtrooms in need of protection from insurance companies, the government, and the powerful.”
How important is the process of voir dire to the whole trial?
Jury selection is by far one of the most critical moments in a trial, which sadly trial lawyers often overlook in their preparation and which is greatly diminished by judicial disdain and hostility. We have a single opportunity to talk to jurors; there are no do overs when it comes to jury selection. If we cannot make it real, honest,and genuine, there will be no connection and no success, except for luck. It’s incredibly important; it’s critical. Gerry Spence often says, give me a good jury selection and a compelling opening statement and the case is won. That’s not an exaggeration. Jury selection is absolutely necessary and it must be done well to help the client.
Is this part of the trial taught in law school when you are first getting your degree?
Absolutely not. The vast majority of trial advocacy programs around the country, with the exception of one or two, do not teach jury selection. And when they do, it is flawed. In law school they teach you to replace your humanity with a rote way of thinking-to be exclusively logical and analytical-the antithesis of a caring human being, which is what is needed in the courtroom. Most of us learn how to pick a jury by trial and error, making thousands of mistakes as we stumble through our trials. It is something you figure out mostly alone after you leave law school and start practicing law. TLC corrects this problem. I have found most trial lawyers improved, exponentially, after experiencing the TLC method.
Is this something that lawyers generally recognize as an area that’s weak?
Most lawyers would say that they are not good at jury selection or that it is one of the weakest parts of their practice. I see many lawyers that go out of their way to avoid a jury, which I understand because it is not easy to try a case to a disconnected jury. In my experience, the vast majority of lawyers do not trust jurors-I was one of them. Many trial lawyers complain after losing a case that jurors are dumb and that they would be better off with a judge trial. The opposite is true. Jurors are super intelligent. They absolutely get it and they want to do the right thing. But as lawyers we fail them. We don’t know how to communicate with them; we don’t know how to present our cases; we don’t know how to connect with jurors. We just get upset at the jurors, but we are the ones to blame.
What do you think that is doing to the justice system as a whole across the country?
I think that we have a crisis around the country. The jury trial is dying. Many of us incorrectly call ourselves trial lawyers when, if asked about our last trial, we would strain to think when it was the last time we were in front of a jury. But the system is rigged against the trial lawyer, which is sufficient reason alone for anyone to purposely avoid jury trials. In criminal proceedings, prosecutorial overcharging and out of proportion sentences lead many to plead guilty to crimes that they did not commit. In civil proceedings, exuberant litigation costs and high risk of no compensation lead many to compromise on just compensation. Injured people are not getting equal compensation for their losses. Corporations and prosecuting entities bear undue influence on the justice system, eliminating for all intents and purposes the right to a jury trial.
What do you think can be done?
I think the Trial Lawyers College is a big part of the answer. TLC is devoted to empowering each of us to fight for justice in the courtroom. Unlike many other training programs around the country, which teach students how to imitate others in the courtroom or which discourage students from applying new learned methods until the students have attended and mastered all of its seminars, TLC believes in the power of self. TLC students learn that they have it within themselves to become the best trial lawyer in their town, city, county, state, or nation. So training one TLC lawyer at a time makes a huge difference. Moreover, people do take notice of TLC lawyers and their victories around the country, regardless of the size of the case. They see that TLC lawyers are courageous, that they connect with jurors, and that they passionately fight for justice.
What are you most looking forward to in this seminar?
At a personal level, I am excited that the TLC jury selection seminar is back in WA. My first exposure to TLC was at the jury selection seminar in 2004. I have never looked back; it made a huge difference in the way I try cases. I cannot wait to see new and old students find the same inspiration I did in 2004. Also, jury selection is one of the areas we see the most dramatic improvement from the students. It will change the way students try their cases, and all for the better. Criminal defense attorneys are great at cross examination and civil plaintiff attorneys are great at direct examination, but collectively we all stink at jury selection. When we learn to do it well, its a thrill; it’s exciting to see the growth and then ultimately the amazing impact in the courtroom.
About Paco Duarte:
Paco Duarte is a committed civil and criminal defense lawyer, practicing with his partner Steve Fury in Seattle. He has served on TLC’s faculty since 2006. He is also a former director and chair of Lawyers Helping Hungry Children, a non-profit corporation. He also served on the Board of Directors of the Seattle Shakespeare Company. He is past chair of the WSBA Criminal Committee of the Washington Association of Criminal Defense Lawyers. Francisco has taught trial practice at the Northwest College for DUI Defense, the WYLD Trial Advocacy Program and at the regional National Institute of Trial Advocacy. Francisco is a frequent lecturer at legal education programs on criminal law topics and has appeared on Northwest Cable News and radio programs as a legal analyst. He has published articles on criminal law in Defense, Trial News and The Warrior magazines. At Fury Duarte, Francisco practices both criminal law, specifically defending DUIs, felonies and other serious traffic and criminal matters, as well as high-stakes personal injury law.
Come join Paco and the rest of the TLC faculty team at the Voir Dire Seminar in Washington March 17-20! REGISTER HERE
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