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Jury Selection: Strategy & Science

by Ted A. Donner and Richard Gabriel

Jury Selection: Strategy & Science, 3rd Edition, by Ted A. Donner and Richard Gabriel (Thomson-Reuters ©2001-2014, Supplemented annually), is a comprehensive text designed for use by lawyers and trial consultants involved in the process of examining prospective jurors in cases of all sizes and levels of complexity.

 

In addition to covering the applicable law on challenges, appropriate questioning on voir dire, and other areas of concern to lawyers preparing for trial, the text includes a number of sample voir dire transcripts and discussions with experienced litigators and trial consultants regarding their perspectives on how particular problems should be handled. Each transcript is drawn from a published appellate court opinion, allowing for a comparison of the practitioners' perspective with that of the appellate court panel which eventually decided each case. The book features an array of practice pointers on form and the various types of questions, permissible areas of inquiry, the effective use of challenges and the significance of group dynamics. Jury Selection: Strategy & Science, 3d Edition, can also be searched on Westlaw.  The book appears at JURYSELECT in the Litigation Library, under Practice Materials.

Here is a sampling of court citations to Jury Selection: Strategy & Science:

Graham v. All American Cargo Elevator, Slip Copy, 2013 WL 5604373 (S.D.Miss. 2013) (“It is thus generally held that, although attorneys may pursue questions intended to probe potential jurors' bias or prejudice towards matters connected to the case, ‘they should not ask questions which tend to stake out or pin down a juror as to what his or her decision would be under a given set of facts.’ Ted A. Donner & Richard K. Gabriel, Jury Selection Strategy and Science § 18.2, 3d ed.2000")

State v. Saintcalle, 178 Wash.2d 34, 309 P.3d 326 (Wash. 2013) (“With limited information and time, and a lack of any reliable way to determine the subtle biases of each prospective juror, attorneys tend to rely heavily on stereotypes and generalizations in deciding how to exercise peremptory challenges. See, e.g., Ted A. Donner & Richard K. Gabriel, Jury Selection: Strategy and Science 1–7 to 1–8, 3d ed. 2007")

U.S. v. Jadlowe, 628 F.3d 1 (1st Cir. 2010) (“Specifically with respect to the bar on juror discussions about the case while the trial is ongoing, it has been observed that the prohibition is ‘based upon historical assumption rather than any real understanding as to how task-oriented groups actually render decisions or how discussions prior to the jury instructions would actually be likely to impact that process.’ Ted A. Donner & Richard K. Gabriel, Jury Selection Strategy and Science § 39:3, 3d ed. & Supp. 2010") 

U.S. v. Fambro, 526 F.3d 836 (5th Cir. 2008) (“A majority of states appear to prohibit hypothetical questions to prospective jurors on voir dire to determine how they would decide fact issues in a case. Ted A. Donner & Richard K. Gabriel, Jury Selection Strategy and Science § 18:2, 3d ed. 2006”)

From the New York Times: Illinois Trial in Graft Case is Thrown Into Ferment (March 28, 2006): Ted A. Donner, co-author of the law text ‘Jury Selection Strategy and Science,’ which was referred to in the defense's objection to using alternate jurors [in the trial of Governor George Ryan] said, ‘"It's one thing to hear a piece of testimony and have a judge tell you to disregard that.... It's another thing to disregard an entire week's discussion that you've had with 11 other people.”
Ted Donner's co-author on this book, Richard Gabriel, is the President of Decision Analysis. Since 1985, Mr. Gabriel has been a leader in the field of jury research, jury selection, and litigation communication in nearly a thousand trials in both the civil and criminal arenas across the country. Mr. Gabriel has assisted counsel in thousands of cases across the country, including the O.J. Simpson, Heidi Fleiss, Phillip Spector, Enron Broadband, Whitewater, Casey Anthony, and Kwame Kilpatrick trials. Three cases he has participated in have resulted in United States Supreme Court rulings.

 

Mr. Gabriel is a regular columnist for Lawyers USA on trial strategy and has authored numerous articles on litigation communication, social science, and litigation research for numerous State Bar Journals and other legal publications including the American Bar Association CLE Journal, the Daily Journal, and the Notre Dame and Loyola Law Reviews. He has appeared regularly on ABC, NBC, CBS, CNN, Fox, MSNBC, CNBC, and NPR as a commentator on high profile trials and is regularly interviewed by national legal publications on jury decision making and trial communication issues.

 

Mr. Gabriel is a former President of the American Society of Trial Consultants and the ASTC Foundation. He has been a guest lecturer at numerous law schools and has participated in both judicial education programs and over 100 training and CLE programs on jury and judicial decision-making, as well as litigation persuasion.