Jurors are persuaded by evidence that confirms their inherent beliefs, a principle known as “confirmation bias.” If those beliefs run counter to your case, you are unlikely to win, despite the strength of the evidence and the justness of your case. Trial lawyers are often afflicted by what psychologists call “naïve realism,” believing that any reasonable juror will share their own perception of the evidence. But make no mistake—jurors process evidence as partisans.
Because prospective jurors have been exposed to years of negative publicity about personal injury cases, many are so profoundly indoctrinated against lawsuits that they may be unaware of their own subconscious and conscious biases. In this environment, the most effective jury deselection begins long before voir dire. Questioning the venire is the final important step in a long, detailed process.
Many factors figure into choosing the fairest possible jury, and each must be carefully considered. They include
- prevailing law affecting jury selection in the venue
- existing process for jury selection in the venue
- the judge’s proclivities
- unique case factors
- nature of the venire panel
- quality of pretrial research
- availability of supplemental juror questionnaires
- how questions and follow-ups are asked
- the nature of voir dire questions.
The laws of jury selection differ among states, as do the rules and methods of local judges. If you practice in the venue, you will understand these peculiarities. If you do not, you must study the variations long before the trial. Having a firm grasp of the law and applicable citations can greatly enhance the success of your jury challenges.
Know the law and the process. We recommend that you file a trial brief on the law of jury selection in every case. Even attorneys who have practiced in the venue may be surprised by their findings, and many learn that common practice does not always follow legal precedent. Others are surprised to learn how different the process can be from state to state, in different areas within a state, or even among courts at the same venue.
Consider, as well, the jury selection process for the venue. Some courts allow only five minutes for voir dire, while others allow up to two weeks. Courts may allow questioning of the entire venire, a smaller panel, or only one prospective juror at a time. Some courts immediately dismiss jurors for hardship, while others have them stay until the end of the selection process. Some venues use strike-and-replace panels in which a juror may be challenged immediately after answering a question, then dismissed and replaced by another member from the panel, either randomly or sequentially. Understanding these variations can be critical when using cause and peremptory challenges.
Know the judge. To use voir dire and motions to strike effectively, you must have detailed information about the judge’s attitudes about jury selection. For instance, many judges want to hear prospective jurors use specific language, such as the words “biased” or “prejudiced,” before they will dismiss for cause. Others may accept more general expressions, such as “one side starts out ahead (or behind).” Some judges consider the totality of the responses. All this information affects your approach to questioning and confirming bias.
The judge’s opinion on and process for rehabilitation is one of the most important areas to understand. Carefully research whether the judge allows opening remarks or individually questions each juror who has indicated some form of bias during general questioning. You may gain more favorable jury selection conditions by filing a motion for improved jury selection procedures (such as using juror questionnaires), additional time for voir dire, or a larger panel than usual.
Judges are trending toward limiting the amount of time devoted to attorney-conducted voir dire. The opportunity to have a lengthy, open-ended discussion with the panel is now the exception, not the rule. You must make the most efficient use of the allowed time. One way to save time and help identify important areas for follow-up and for cause challenges is by asking the court to allow you to use supplemental juror questionnaires. They are particularly helpful in gleaning information potential jurors might be uncomfortable or embarrassed to disclose in a group setting with attorneys and a judge present. Verbal questioning often elicits one-word answers, but questionnaires afford jurors more time for reflection and often result in more candid and complete responses. In complex litigation, attorneys may request that more complex questionnaires be given.
While some tenets of jury selection are well known, each case has unique circumstances that affect prospective jurors’ attitudes. It may be helpful to identify and test these variations through jury research.
Focus groups. We suggest using focus groups to help identify potential jurors’ biases and prejudgments. The information gleaned in these groups is invaluable in developing voir dire questions and supplemental juror questionnaires, which are crucial when voir dire is limited. A focus group allows you to test your questions and practice confirmation techniques when evaluating a venire for peremptory challenges.
Surveys. Survey research can help you understand the communities in which you prepare for trial. By using a survey to test questions, you can glean precise and dependable information to assist you in developing, refining, and analyzing questions for supplemental juror questionnaires. You can also compare responses from a questionnaire or oral voir dire to responses on a litigation survey, gaining insights into which questions are more likely to predict verdicts. By giving a short summary of the case and comparing the decisions made on the litigation survey, you may be able to identify specific questions or characteristics that are most likely to predict the venire’s “walk-in” bias.
Social media and online research. The Internet can yield valuable information that can help you make informed decisions about potential jurors. In one case, we found a person who professed no antilawsuit opinions in oral voir dire but had campaigned for local office a few years earlier on a tort “reform” platform.
Don’t limit your search to Google. In addition to the major search engines, be sure to include Facebook, local newspaper archives, and database sources such as LexisNexis Accurint in your search. But be aware the New York City Bar Association has promulgated rules that affect online jury research, and a dozen states are in the process of developing similar rules. Attorneys and trial consultants must stay abreast of these guidelines and adhere to them carefully.
Eight general steps can create the environment and conditions for effective jury deselection.
Inform the venire. When people are debriefed after being passed over for jury service, most reveal that they simply didn’t understand the process. If the judge permits it, explain to the venire, up front and step by step, what they can expect. You also may want to tell them why you cannot discuss the facts of the case, what the words “prejudice” and “bias” mean, that the process was established by America’s founders and is used by all courts, and that some people are good jurors for one case but not another. Providing detailed information about the process communicates that you care about the prospective jurors’ concerns, soothes their anxieties, facilitates the questioning process, and elicits more honest answers.
Share with the venire. The first task of jury selection is to give jurors permission to admit bias without feeling they are revealing something negative about themselves. Research has shown that people are more likely to disclose information about themselves to someone who has already disclosed something to them. Try disclosing something about yourself that is not too personal but demonstrates a life experience that might prevent you from being impartial in a certain type of case.
For example, if you had extraordinary problems with a certain computer manufacturer and its technical support—problems that nearly caused you to miss a filing deadline—then you might explain that if this company were a party to the case, your emotions would keep you from being an impartial juror. In doing so, you communicate that an experience may cause bias in one type of case but not in most other cases. This helps potential jurors save face.
Give permission to be open. In posttrial interviews, jurors often reveal strong opinions that they withheld during voir dire because they didn’t want to appear unwilling to perform their obligation to serve on a jury. Your words, voice, and body language must communicate to venire members expressing negative opinions that they are doing exactly what they are supposed to do.
Many jurors also withhold opinions because they find the court setting intimidating, especially when the judge looks down from the bench and asks them whether they can be a fair juror. Put the venire at ease by recasting the judge’s question. Use yourself as an example, making it clear that as an officer of the court and someone who understands the intricacies of the civil justice system, you wouldn’t hesitate to tell the judge if you felt you could not be fair on the jury.
Model the behavior you expect. Show jurors exactly how you want them to behave. When you talk about your bias, raise your hand, turn and look at the judge, and explain why you have a bias and would be a better juror on another case.
Reinforce negative opinions. When a venire member says he or she dislikes lawsuits or some aspect of your case, your words and body language must reinforce that what the person is saying is expected. Don’t let negative body language stifle openness. Focus on how glad you are that the person is sharing this bias now instead of during deliberations, or your body language will betray your true feelings.
Loop the responses to other venire members. Perhaps the most important step in voir dire comes when a prospective juror speaks negatively about your case. When this occurs, you must turn to the rest of the panel and ask, “Who else feels that way?” Then slowly identify each juror by name (if permitted) and number. If you skip over them or count them off quickly, they will feel you really don’t care. No matter how much time you have, the only way to ensure you get all hands is to go methodically, at a pace that allows your team to identify and record each negative response.
Confirm bias. Once you have identified a potential juror with a bias or prejudgment, you must get him or her to commit to that position to avoid rehabilitation by the other side. This means confirming that the juror feels strongly about this viewpoint, has held it for a long time, and would be unlikely to change his or her mind. Using closed-ended questions is an important technique in getting a potential juror to commit to his or her position. But be gentle in questioning, so as not to lose rapport.
For example, ask the venire member if he or she has had the opinion for a long time, or say something like, “You seem like a person who would not change their mind easily.” Getting the venire members invested in their opinions makes it easier to follow up by asking if they believe they would be a better juror on another case.
You might also say, “So the way you are with this case/issue is the way I am about (your own previously expressed bias).” This gives them permission to express bias and tell the judge they would be a better juror on another case. It identifies venire members with the bias and gives them a way to get off the jury without feeling un-American.
Minimize rehabilitation. It is frustrating to have a venire member clearly express a bias, only to be rehabilitated by the judge or defense attorney. You may prevent this by letting the prospective juror know the defense attorney or judge is going to ask them a similar question. Then ask them if they will give the judge and the defense attorney the same response they gave you.
Ask the questions
You should examine several areas for questions and peremptory challenges. Many are obvious, but it is surprising how often they are not specifically targeted before voir dire. Consider for exclusion individuals who
- have contact with the defendant’s profession (including regularly using the services of the defendant’s profession or having friends or relatives who use them).
- have had a positive experience with or hold positive opinions about the defendant or the defendant’s profession.
- believe lawsuits hurt the defendant’s profession.
- have a financial interest in the defendant’s profession.
- say they would not sue if they had an experience similar to the plaintiff’s.
- indicate they support tort “reform.”
- belong to political or social groups that have a history of supporting tort “reform.”
- have difficulty with or cannot award noneconomic damages.
- need more than a preponderance of the evidence to make a decision.
Preparing for jury selection in a case that is complex and subject to tort “reform” indoctrination cannot be accomplished within a few days of a trial. The process requires research about the law, the judge, and the venire members. This research must take into account local attitudes about the civil justice system that may profoundly affect your case.
To achieve maximum success obtaining a fair jury, the selection process must be planned and implemented in a way that gleans as much information as possible about the many variables peculiar to the venue and venire at hand. The structure of your questions is critical, but the way you ask them and the way you handle a potential juror’s responses is equally important.