1. From 100 days through Opening Statement: Course 2: Jury Selection Topics: Purpose Before Jury Selection Begins Jury Selection (Voir Dire) Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

2. Purpose

3. Purpose Changes over past 3 decades Indoctrinate (control) Persuade (control) Get commitment (control) Establish connection likability (control) Learn/arm(listen/empower) Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

4. Before Jury Selection Begins Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

5. Pre-Voir Dire Work County Jury Pool profiles Court Procedure & Rules Judge Voir Dire Use of Questionnaires Mini-Opening? Time limits Challenges Alternates Opposing Counsel Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

6. Legal Briefs/Motions Use of jury questionnaires Time limits Sensitive subject matter Pocket brief cause challenges Batson/Wheeler Issues Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

7. Jury Selection Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

8. Create an opening for dialogue Introduce client and yourself Ask a question that requires a group response Explain: Only time we can have a conversation Want to discover: What you have learned about life through your experiences; How those experiences affect the way you view things; How those experiences may affect the way you evaluate case facts. Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

9. Explain What You Are Going to Do Way Things Work: Ask questions to you as group – raise hand Follow up with individual questions based on what comes up when we talk May not ask questions of everyone-not offended? Want to know what you think; how you feel on these subjects. Will protect your privacy-Let us know if need to discuss in private Be respectful Know their names – correct pronunciation Dont interrupt (with some exceptions) Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

10. Validate & Empower: No right or wrong answers; only your answers Justify & Excuse: Sometimes life experiences affect us in such way, certain cases not for you What The Law Looks For: People who can listen, evaluate, decide based on evidence presented here not on outside things Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

11. Facilitate Disclosure Its about them – Its not about you. Get the jury talking. Ask open ended questions & follow up Tell me more, why is that so…. Dont react to bad answers Many people feel that way, who else does... Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

12. Listen - Watch - Record Look at the juror when they are speaking Pay attention to answers & body language No writing; no shuffling papers Have someone else keep notes Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

13. Ask About Case-Critical Issues Ask about landmine issues Determine what percentage of proof they would require Key: If you can tie a case critical issue to the burden of proof, you can set up a successful cause challenge. E.g. How many do you feel strongly that lawsuits against nonprofits who provide services to the disabled creates the risk of forcing these companies out of business Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

14. Establish Agreement with Rules of the Road The concept of rules How do they feel about rules? (Have rules @ work; for kids; at home?) Are they important to you? Why are they important? Do you expect others to follow them? What happens if they are not followed? (i.e. – consequences/accountability) How they feel about the rules/norms for behavior in the case Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

15. Identify Leaders Jobs/work history- managers, supervisors, military officer, teacher Self confident, Articulate Able to use humor, including about themselves No narcissists: Big ego, grandiose sense of self importance, etc Prior jury service Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

16. Examples of Case-specific Issues To Cover in Voir Dire Defendants status Plaintiff lives out of state Plaintiff out of work since DOA even though medically released to return to work Secondary collision after accident which is subject of litigation Felony conviction Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

17. Red Flags Doesnt believe in civil justice system Tort reformers Frivolous lawsuits Caps/limits Money cant fix No general damages Status matters-different standard for nonprofits, doctors, etc. Closer potential jurors personal experience to facts of case = more dangerous Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

18. Unemployed people or people who are struggling financially w/o assistance People who do or have taken care of people with serious disabilities People who are not satisfied with their life People who think economy is getting worse Bitter, sour or angry people People who dont think rules are important. Jurors that use words like must/always/never/should/everyone Jurors that need to know more Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

19. Law Supporting For-cause Removal When a cause challenge is proper: If a juror cannot follow or is even substantially impaired from following the law, that is a cause challenge. Wainright v. Witt 496 U.S. 412 (1985) Two types of bias: Implied and Actual Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

20. Implied Bias The law presumes a prospective juror is biased and therefore disqualified if any of the following conditions exist: The individual is related by blood or marriage to party or witness; The individual has another relationship to a party or witness (i.e. fiduciary, domestic, or business); The individual was a prior juror or witness in litigation involving a party; The individual has an interest in the litigation; The individual has an unqualified opinion as to merits based on knowledge of material facts; or The individual has enmity or bias toward a party. (Code Civ. Proc., § 229.) Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

21. Actual Bias Prospective jurors are disqualified from a trial if they cannot act with entire impartiality. (Code Civ. Proc., § 225, subd. (b)(1)(C).) In other words, prospective jurors are properly excluded for cause if they require a party to go beyond the partys burden of proof, e.g. requiring more than a preponderance of evidence to render a plaintiffs verdict. (Liebman v. Curtis (1955) 138 Cal.App.2d 222, 226.) Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

22. Examples of Actual Bias Stock ownership in a party to the action is the type of business relationship that implies bias. Prejudging the merits of a case based on knowledge of individuals or entities involved in the matter constitutes an unqualified opinion for which a prospective juror should be excused. Enmity and bias established if prospective jurors confirm they will not follow jury instructions if the law went against their conscience. Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

23. No Rehabilitation Once a prospective juror has admitted bias, that prospective juror cannot be rehabilitated simply by stating, I can be fair, or I will follow the law. Prospective jurors are properly excluded for cause where prospective jurors admit bias but then promise to be impartial or to decide the case according to the evidence presented. (See Lombardi v. California Street Ry. Co. (1899) 124 Cal. 311, 314.) Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com

24. Scripting the For-Cause Challenge First on the leaders and then on everyone else: confirm & reconfirm bias to resist rehabilitation. Dont use cant be fair; instead use not neutral. How did you reach this feeling What are the things in your life led you to this conclusion Have had feeling for a long time Why is this important to you Sounds like these are strong feelings Fair to say it is the way you look at the issue; a philosophical position Have voiced this to others in past; would voice it to jurors in jury room if asked Couldnt set feeling aside even if another juror told you, you shouldnt think that way, or if attorneys said have to set aside Is it true that there is nothing anyone can say to make you feel differently Agree not neutral Agree be a better juror different kind of case – agree not case for you Cynthia McGuinn Miles Cooper Daniel Pleasant Rouda, Feder, Tietjen & McGuinn 415.398.5398 mc.team@rftmlaw.com