Group voir dire is a tricky business – it’s not easy to get a court-roomful of jurors to speak up and readily disclose the biases that will hurt you. Despite this general difficulty, there are a few advantages to jury selection in an employment case. The most obvious is that your court-roomful of jurors have many relevant experiences, opinions and biases that they’d love to spill, if only they had the chance. I’ve found that in group voir dire situations, the best strategy is to come armed with a short list of very good questions and aim to have the greatest number of potential jurors answer those questions. When you approach voir dire this way, you experience the following benefits:
- The judge will hear jurors talking, not lawyers talking. I’ve never heard a judge tell jurors to “hurry it up” when they are speaking but I’ve heard many a judge give lawyers “the hook” when question after question hangs in the air unanswered.
- The jurors hear each other talking. This encourages them to feel more comfortable to respond. It also makes them feel more positive about the voir dire experience: When jurors are asked questions to which they can both relate and answer, they feel that voir dire is truly a meaningful process.
- The attorney is able to compare apples to apples before making for cause and peremptory challenges. When a number of jurors respond to the same key questions, biases can be more accurately assessed along a continuum. It becomes obvious that some “apples” are only slightly bruised while others are rotten to the core.
Some lawyers are uncomfortable with the concept of exposing the biases that can hurt them in open court. They believe that these biased jurors might taint the other prospective jurors. In countless jury selections, I’ve never seen this occur. Harmful biases don’t spread from one person to the next like the stomach flu. Instead, exposed biases simply allow you to succeed on more challenges for cause, as well as exercise your peremptory challenges more intelligently. There is no point to voir dire if attorneys avoid exposing the very biases that can prevent them from winning a winnable case. So, with that in mind, here are a few of my favorite voir dire questions for both plaintiffs and defendants in employment cases.
- Do you think it’s too hard to fire people?
- Have you ever worked with someone who should have been fired but wasn’t?
- Have you ever wanted to fire someone but were told you couldn’t?
- Have you ever been falsely accused of treating a subordinate unfairly?
- Has a subordinate or co-worker ever complained to you that he or she was treated unfairly when in reality, they were just performing poorly?
These questions are some of my favorites for plaintiffs because jurors who respond affirmatively are more likely to have an ax to grind about employees who complain about their rights being violated. They are also more likely to have a negative view about employment laws: Instead of seeing them as necessary protection, they are more apt to see them as an impediment to a well-functioning workplace.
Question #4 asks if a person has ever been “falsely” accused. This is key because jurors don’t want to admit that they’ve been accused of something. By describing the accusation as false, the juror identifies with the feeling that he or she was wronged, making it easier for them to admit the experience and discuss it.
Follow up questions are as simple as saying, “tell me why” or “tell me more so I know where you are coming from.”
- Have you ever been laid off from a job? What was your impression about how your employer went about the lay offs? Did you think they were necessary? Unnecessary?
- Have you ever worked for a company that was involved in substantial lay offs or terminations? What was your view about how the employer handled that situation?
- Have you ever worked for a supervisor that treated you unfairly?
- Have you ever been in a work situation where you felt the employer was not concerned about _________? (Fill in the blank: it could be the employee’s rights or health, or safety or accommodating disabilities or some other issue relevant to your case).
- How do you expect an employer to handle a problem-employee?
These questions are some of my favorites for defendants because they expose jurors who are more likely to view the defendant-employer through a negative lens. Question #1 doesn’t ask about terminations because people don’t like to admit they’ve been fired. To a juror who loses his or her job, a lay-off can be just as traumatic as a termination and cause the same degree of hard feelings. By asking about lay-offs, the attorney can expose whether or not the juror has negative feelings towards, and unreasonable expectations about an employer that has had to let employees go. Follow up questions will reveal whether or not the juror accepts or rejects the employer’s stated need for lay offs. I’ve heard jurors answer both ways: Some say, “that’s life. It was a tough economic downturn.” Others say, “they still managed to pay the CEO millions and millions of dollars. I definitely think jobs could have been saved if the executives weren’t so greedy.”
Question #3 and #4 will give the attorney insight into whether or not the juror feels that he or she has been victimized and whether or not employers generally care or ignore employee needs. Question #5 gives the attorney some insight into what kinds of processes and procedures jurors expect for discipline and termination. Voir dire responses to these questions help the attorney discern whether his or her client is likely to satisfy or disappoint jurors’ expectations.
Group voir dire is a unique communication experience. The ordinary rules for question and answer don’t apply because in this setting, the most normal jurors (i.e., not the most bold, outspoken, or biased) will naturally keep quiet until they are sure that their own personal experiences are both responsive to the question and important enough to share. For this reason, the above questions are deliberately somewhat repetitive of each other: Asking similar questions in slightly different ways nudges jurors to respond. For example, if no one says a peep after you ask, “Do you think it’s too hard to fire someone?” someone is sure to break the ice when you follow with, “Have you ever worked with someone who should have been fired but wasn’t?”
The above questions also give jurors permission to articulate a bias that is harmful to the litigant who is posing the question. In other words, these questions are the opposite of indoctrination. Indoctrination merely inhibits jurors from being honest. If the first thing a lawyer does is lecture or indoctrinate, the lawyer signals to jurors that he or she is more interested in telling them what to think rather than learning what the juror already believes. Once the plaintiff’s lawyer or defense lawyer seeks only agreement, it instantly becomes harder for jurors to open up. Remember, the lawyers and judges are on their own turf. The jurors are like guests at a church for a religion to which they don’t belong: They don’t want to say or do the wrong thing. That’s why you want to make it easy for them to open up by signaling that now is both the time and the place to air their beliefs.
Finally, the questions don’t pertain to specific employment issues such as discrimination or accommodations, or sexual harassment but pertain to general issues that impact whether or not a juror is likely to start off viewing your case with a pro-plaintiff or pro-defense bent. In other words, you will see if a juror’s personal experiences and/or world view will make your case more of an uphill battle. This is why it’s so critical that you pose some of the same key questions to the greatest number of jurors. When you do, you will be able to draw critical distinctions between the best and worst jurors. To draw those distinctions, all you need are good listening skills and some simple follow up questions.
This is not to say that specific questions are to be avoided – not at all. You definitely want to add specific questions as well. For example, in a sexual harassment case, a plaintiff needs to ask, “What, if anything, do you think a woman can do to prevent herself from being sexually harassed?” A defendant can learn a lot by asking, “What, if anything, can an employer do to prevent employees from sexually harassing other employees?” These examples are specific to the subject matter, but not overly specific about the case. That’s what makes them so easy to answer. Jurors don’t feel like they are being asked to pre-judge a case. Instead, they are asked about topics about which they are sure to have an opinion.
If you give jurors a chance to use their own words, you will be amazed at how easily they will betray their own biases with colorful, value-laden language. You will hear jurors say things like:
“You hear people cry discrimination..”
“I’m just not a law-suit type.”
“Employers try to act like they care but all they care about is the bottom line.”
When jurors do use colorful, value-laden language, resist the urge to correct them, argue with them, or try to get them to admit they are hopelessly biased. Instead, side with them; listen to them; act as if you understand where they are coming from and you’ve heard it before. Let them know they are not alone in their beliefs. This will help you open up the vein even more. For example, you can either say “tell more what you mean when you say ‘cry discrimination.” Or, if you are afraid the juror might backtrack at the sound of his or her own biases, you can actually rephrase and broaden the juror’s comment by saying something like, “when you say ‘people these days cry discrimination,’ it sounds like you are saying that nowadays, people claim discrimination as an excuse.” If this reflects a juror’s true beliefs, your articulation of that belief will make it easier for the juror to fully share the depth of his feelings.
Traditionally, lawyers have looked at jury selection as an opportunity to bond with jurors and sell their case to them. To that I say, sell your case during the trial, after the jury has been selected. This is your one and only opportunity learn who jurors are and what they believe. If you use that precious time to sell your case, you will not be able to weed out harmful biases. As for bonding, if you really want to bond with jurors, the best way to do it is to ask questions that the jurors can answer, about issues that are important to them, and really listen to their responses, helping them flush out the depth of their true feelings. That is the only way you can protect your client’s interests during this most critical stage of the trial.