I’ve just had a book approved by the America Bar Associ – by the litigation section of the ABA and it’s going to be a book for beginners and I’m going to call it¸ I hope, Burg’s Bible: A Beginner’s Guide to Trials. Trials in general. Specifically with respect to jury selection. Jury selection and cross examination, in my mind, set the tone and change the course of trials. The great trial lawyer, Joe Jamail, said that he thought that jury selection was the most important part of a trial. The most important thing to me in jury selection is what I alluded to earlier, which is to get the panel talking not only to you but to each other. And to do that you have to ask open ended questions. I can’t tell you the number of times I’ve heard lawyers say, now, will you require the plaintiff to prove every element of fraud? That is reliance and damages and causation and nothing happens. And they’ll say I take it by your silence that you agree with me that they have to prove every element of fraud. Well, no, they don’t agree with him, they’re just quiet. He hasn’t gotten them talking.

So two things, two tips that I would add; humanize yourself and your client immediately and let the panel know this is a difficult part of the trial. You’re going to be talking to me. You don’t know me. In my book I quote Hamlet, you know, when Hamlet wonders who is he to Hecuba, the role the actor is playing, and Hecuba to him? Who is this trial lawyer to this panel? Tell them, I’m nervous too. I’m concerned because this is important and I know you don’t want to discuss personal matters and we won’t go too deeply into personal matters but in order to get a fair trial we’re going to need you to talk.

And then, I use what I consider to be the most compelling theme in any jury trial, which is betrayal. And betrayal is at the heart of many, many kinds of case. Certainly, in fraud, certainly in contract cases. And you say I want to know if anyone in this panel has ever been betrayed? Has anyone ever been stabbed in the back by someone who you knew? And hands will shoot up. And I’ll say don’t tell me the facts. And pretty soon Miss Jones on the first row is telling me that her husband cheated on her. And it really opens it up. So find a tinderbox, something that explodes when you question the panel, and get them talking and talking to each other. Mr. Black, you heard Miss Jones up here say what she said, what’s your reaction to that? And you’ll find out a great deal.