Thursday, January 25, 2018


Ed Imwinkelried, Professor of Law Emeritus at UC Davis School of Law, has reviewed Jury Selection Handbook. Professor Imwinkelried, among his many other publications, wrote the books on scientific evidence and evidentiary foundations. The following is Professor Imwinkelried’s review of Jury Selection Handbook.

 It was a pleasure reading JURY SELECTION HANDBOOK by Professor Clark and Mr. O'Toole.  I found it to be at once comprehensive, sophisticated, and practical. 

To begin with, it is a thorough treatment of the subject.  The 14 substantive chapters touch on virtually every facet of the jury selection process.  The text reviews the use of jury consultants,  pretrial motions that a litigant can file to enhance the selection process, the interrogation of the panel, and the law governing challenges for cause as well as peremptory strikes.  Chapter 11 even includes a discussion of the case law governing the use of visuals during jury selection.

In addition, the text goes far beyond the rudiments and exposes the reader to advanced techniques.  Throughout the text cautions the litigant to merely attempt to "advance" his or her theory and theme during voir dire and refrain from amateurish overreaching by engaging in objectionable argument.  Chapter 8 illustrates the use of "forced-choice" and "scaled" questions to probe the attitudes of panelists who are reluctant to express their views on controversial topics.  Chapter 13 contains a detailed discussion of the art of "reading" the panelists' nonverbal demeanor, including the caveat that "over the course of socialization, people learn to control their facial expressions more than other aspects of nonverbal communications."

Finally, the text delivers on its subtitle:  "The Nuts and Bolts of Effective Jury Selection."   The text does far more than analyze the theory of the process.  The text addresses such eminently practical subjects as:  conducting your own focus group, the need for courtesy to the lower bench, the optimal phrasing for questions about damages issues, checklists for jury selection, and model motions.  The text has an online supplement with a wealth of useful material.

I do wish that the authors had clarified their use of the expression, "case theme."  They often explain it as "the core idea" of the case.  It would be more precise to tell the reader that the theme should embody the litigant's best substantive justice or common sense argument on the pivotal issue in the case--telling the jury not only what conclusion to reach on the crucial question but, more importantly, why the jury should reach that conclusion. Moreover, although the text discourages the reader from resorting to argument during jury selection, some of the illustrations go well beyond what many judges, especially federal judges, would permit in my experience.

Nevertheless, this is the single best short volume that I have read on jury selection.  It would be a valuable addition to the library of any law student interested in litigation, a neophyte trial attorney, or even a counsel with a middling level of experience.

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