Jury selection is often a dismal experience wherein the name of efficiency, time is wasted while lawyers learn nothing about jurors. At a minimum, as an advocate, lawyers need to know jurors’ opinions about relevant issues. This information is the most useful and can often be the hardest to get. The good news is that because things are so dismal, almost anything you do can improve the situation. With that in mind, here are a few suggestions – things I’ve personally experienced in courtrooms – that can make a meaningful difference the next time you de-select a jury.
Keep focused on your main goal.
When lawyers call to discuss jury selection, they ask me what kind of jurors should they be looking for; Women? Men? Educated professionals? Blue collar workers? I know this is a favorite pre-jury selection activity. Some see it as “preparation for voir dire.” To me, this exercise just wastes your mental energy: First, theories about ideal jurors are based on untested assumptions. You might think that certain types of jurors will be better for you, but without research like a mock trial or a focus group, such conclusions are nothing more than wishful thinking. I’ve seen it time and again: Lawyers believe one type of juror is best for their case and a mock trial proves the opposite is true.
Second, even if you could come up with a handy list of so-called ideal jurors, courtrooms are notoriously filled with less-than-ideal types. That is why fantasizing about the perfect jury takes you off track. In any jurisdiction, especially a limited one, your primary goal is to identify and eliminate the most harmfully biased jurors. These are people whose beliefs or experiences can prevent you from winning a winnable case.
Ask for voir dire that goes beyond “business as usual.”
There are some frustrated judges out there who understand that dangerous biases remain hidden in their courtrooms. ‘They know that one or two bad jurors can result in a miscarriage of justice. While judges aren’t necessarily interested in solving the problem, some would welcome a reasonable alternative to “business as usual.” As an advocate, if you consistently took steps to do something both fresh and efficient, you might be surprised by the results.
In a limited jurisdiction, instead of trying to cover every base, try trading five questions for one or two good ones. I was working with a plaintiff’s lawyer in an employment case and the lawyer was convinced that the judge hated him. He was worried that if he pressed for decent voir dire, he could anger the judge even more. After telling me that we wouldn’t learn anything during jury selection, he showed me three pages of meandering questions he had prepared for the judge.
Taking him at his word that the judge hated him, I took his three pages of questions and reduced them one page with ten questions on it. The last two questions were neutral-sounding opinion questions. Perhaps the judge appreciated our brevity. Perhaps he hadn’t seen a one-page request for voir dire in a long time. All that mattered was that the judge asked every single question plaintiff proposed, verbatim.The opinion questions were:
- What duties and obligations does an employee owe its employer?
- What duties and obligations does an employer owe its employee?
When the judge got to those questions, even though he was asking all the questions to the group as a whole, he had each juror individually respond. We learned what jurors expected from employees. We learned what they expected from employers. From their answers, we could glean important details about their workplace values and beliefs. When jurors were given the chance to share their views, the courtroom atmosphere shifted from boredom to keen interest. The jurors enjoyed hearing the views of their peers. The judge enjoyed hearing the jurors speak; he leaned forward, listening intently to each juror. In making our peremptory strikes, jurors’ answers to those two simple questions allowed us to understand jurors in a more multidimensional way. Without those questions, we would have had nothing to rely on but stereotypes. And we didn’t have to fight for those questions: The judge asked them because at some level, he too had tired of “business as usual.”
Use questions that cast a wider net.
If you slip in some good opinion questions but still fail to get a judge to ask them, that’s okay. You can also get more voir dire by broadening your questions. This allows a greater number of jurors to come up to the bench for follow up. For example, instead of asking “have you been a plaintiff or a defendant in a claim for personal injuries?” Ask:
- Have any of your close friends, family members or co-workers ever filed a lawsuit where they claimed to be injured or disabled in any way?
- Have you or anyone close to you (immediate family, close friends or co-workers) ever received an out-of-court settlement?
Both questions are necessary because jurors form beliefs about lawsuits based on the experiences of people they know. Jurors also mistakenly believe that an out-of-court settlement is not the same thing as a lawsuit. At side bar, both plaintiff and defendant benefit when a follow up question is as simple as, “Did you view your brother’s case as something that was legitimate or did you think he shouldn’t have sued? Tell me why.”
Make it easier for jurors to participate without confusion or embarrassment: Remember that during jury selection, jurors are not on their home turf and they not accustomed to hearing legalese. In the age of attention deficit disorder, don’t assume that every juror can easily follow a judge rattle off questions. Many different thoughts will be going through a juror’s head as he or she contemplates each question, like, “I wonder if my settlement is the same thing as a law suit…What does it mean to ‘be a party?’…..No one else is raising their hand…. Maybe the judge will get mad at me if my issue isn’t important enough…” Of course the most typical thought running through a juror’s mind is, “What did the judge just say? I just missed the last three questions! …”
Ask for a Read-A-Long: No juror will ever raise his or her hand and ask the judge to repeat a question and yet, the courtroom is full of jurors who are too preoccupied to catch every question. Because people comprehend information differently, you can ensure full comprehension by asking the court to give each juror a print-out of the voir dire questions. If you think this isn’t necessary, watch jurors trying to react to each question before the judge moves on to the next one. It will become immediately obvious that not everyone is keeping pace. In a limited jurisdiction, you can and should zealously argue that at a minimum, reasonable steps should be taken to reduce the barriers that impede jurors’ responses. If it’s worth the time to ask the question, it’s worth the time to ensure an answer.
When jurors read the questions along with the judge, they feel more comfortable responding because they understand the question. An even better way to increase the number of affirmative responses is to allow jurors to respond by circling the question instead of having to raise their hands and publicly identify themselves as “victims of domestic violence” for example. (If you have trouble seeing the utility of having jurors circle questions instead of raising their hands, imagine if doctors took their patients’ histories en masse in the waiting room, calling out, “Who here has had a urinary tract infection?”)
Increase what you learn once jurors get up to the bench: I’ve never seen a judge say “no counsel, you cannot inquire” and I never heard a judge cut off a juror and say “that is enough. Thank you.” To make the most of your side-bar opportunities, use the fewest words possible to get the juror to talk. When you allow jurors to talk, their pros and cons will be evident. Jurors do a better job exposing their biases with their own words than if you try to control the conversation. More importantly, judges are more apt to excuse jurors for cause when the record reflects a series of problematic responses coming directly from the horse’s mouth.There are a few easy ways to help jurors expose their biases. The easiest is to repeat the juror’s own words.
- You said “you aren’t a lawsuit person.” Tell me what you mean.
- You said your dad got “railroaded out of his job.” Tell me more.
Then, take the one problematic experience the juror has reported and see if there are other related problems. For example, after asking a juror to “Tell me what you mean by “not being a lawsuit person,” you can ask: “Do you know people who’ve brought lawsuits they shouldn’t have brought?” And/or “What is your opinion of a person who gets injured and decides to sue for things like pain and suffering, lost income, etc?”
Once a juror gives you one problematic answer, a judge is more likely to give you leeway to ask another question. If you keep taking the juror’s own words and build them into your next question, you can see whether the juror’s problems are isolated or global. If the issue will truly interfere with objectivity, you will know it by the juror’s responses which will amply support your challenge for cause.
Finally, the best alternative to “business as usual” is to argue for a simple, one-page written questionnaire, limited to just three or four questions. In Maryland, any case that last longer than two weeks, jury selection can self-destruct simply because so much time is wasted listening to each juror tell his or her tale of woe to the judge at side bar. Once all this time is wasted on hardship inquiries, judges have less patience to spend time on substantive voir dire. A questionnaire can turn this sorry situation around.
First, a one page questionnaire give jurors the opportunity to respond to key questions in their own words, which is the best protection against violating Batson vs. Kentucky. With no information, who can blame lawyers for relying on stereotypes? They have nothing else. Second, if efficiency is the goal, a one-page questionnaire can give lawyers far more useful information, far more quickly than the present arrangement where jurors line up one at a time to tell their story at the bench.Here is what just one question can reveal in a personal injury case:
- If you or someone close to you was injured due to someone’s negligence, do you think you would you bring a lawsuit?
- Why or why not?
Here are some actual responses:
- “Yes, reluctantly. If I was injured to the point of not being able to work or make money, it may be their responsibility to pay for your loss.”
- “No. Life is short and blaming others for one’s misfortunes is a waste of one’s precious energy and time.”
- “Maybe. It would depend on the extent of the injury but it is probably fair to have the opportunity.”
Sometimes a good question is rejected because a litigant wrongly perceives the question to favor only one side. Not so. The above responses illustrate the reality that all jurors are a mixed bag and biases fall along a continuum from ordinary to extreme. Why not display jurors’ true feelings and allow litigants to make their own tactical decisions about what to do with the information?
Sometimes questionnaires are rejected because courts fear that lawyers are trying to use the tool to “stack the deck” in their favor. Despite Grisham-like stories of deck-stacking, those of us with real-life experience know that non-fiction lawyers can only eliminate among a pool of less-than-ideal jurors. When jurors with the most extreme biases are exposed, lawyers have the ammunition they need to make meaningful challenge for cause and the judge has the insight needed to accept or reject those challenges. Most importantly, lawyers can exercise their precious strikes wisely, based on substantive unfairness, not stereotypes.
These are just a few things you can do that can make a big difference. Any lawyer can take a good hard look at “business as usual” and ask for something better. When you make a commitment to yourself as a lawyer to consistently advocate for better voir dire,with the same zealousness that you apply to every aspect of your litigation practice, you will inevitably experience better voir dire over time. You might not win every battle, but you will win some battles and in those cases, that extra information can mean the difference between a winning or losing your case.