Trial Magazine

There are a variety of ways to obtain information about biases, attitudes, and life experiences during jury selection. Most of us spend time on the substance of what we want to ask, but you should also think intentionally about how you ask questions, why you ask them that way, and whether it best serves your purposes. Thinking about the form of the question in relation to your goal, the information you’re seeking, and how it is going to be used can help you craft a tailored, more effective outline for voir dire.

Leading questions. These are designed to push the person answering to give the questioner what they want. There are aspects of jury selection that require us to have the potential juror say something specifically for the record and for challenges for cause. This goal simply cannot be achieved without using well-designed leading questions.

During jury selection, people will identify themselves as having, or likely to have, attitudes that risk their ability to be impartial. Just as with cross-examination, be prepared to establish that bias or prejudice through concession. Carefully craft questions to capture the admission that supports a motion to strike for cause. Consider the following examples:

• “So, for you, it is true that regardless of the evidence or any instruction from the court, your core belief system prohibits you from considering money damages for mental anguish?”
• “Based on that, it is fair to say that before hearing a shred of evidence, you are already inherently leaning toward the defendant before the case begins?”

Binary questions. A binary question allows for only two answers. There are three main variants for attorneys: true/false, yes/no, and agree/disagree. These types of questions measure a more discrete fact than an attitude or behavior and do a particularly good job of capturing a person’s opinions about vocabulary and definitions, formulas, or dates.

Although a scaled question allows enough latitude to find opinions between the poles, sometimes the inquiry needs to be simpler or tied to unequivocal legal rules or the case. On such topics, a binary question can be helpful.

From the plaintiff’s perspective, one topic lending itself to binary questioning is the definition of, and ability to accept, the “preponderance of the evidence” standard. Framing the question to provide only two answers more directly identifies potential jurors who are not aligned with your proposition:

“The law defines that burden as ‘the greater weight and degree of credible evidence admitted in this case. For a fact to be proved to this level, you must find it is more likely true than not.’ Many people feel strongly that they need more, so let me ask this question: ‘To render a verdict for the plaintiff, I will require more than a preponderance of the evidence as defined by the law.’ Do you agree or disagree?”

Supplemental jury questionnaires—where space is at a premium and collecting usable data quickly is a challenge—also lend themselves to binary questions. For example, you could ask: “If supported by the evidence, could you award significant money damages for mental anguish (circle yes or no), physical pain (circle yes or no), or impairments (circle yes or no)?” The variations are endless and require only the time and effort to develop tight binary questions to collect this range of information.

Scaled questions. This form of questioning has several characteristics that make it ideal for data collection. It is straightforward, simple to administer, and easy to analyze. It also allows you to measure qualitative variables that are otherwise hard to measure, such as feelings, perceptions, preferences, and antipathy. If you want to test opinions and behaviors in potential jurors broadly, then design scaled questions they can answer rapidly, elicit their numerical response for purposes of grading them, and have a sufficient team to collect the data.

I prefer to use a scale of 1 to 5, with a 1 representing the behavior or opinion that makes the juror hostile to my client’s case. Thus, a potential juror who answers four scaled questions with a 1 receives a total score of 4—the lowest score possible—making it easy to decide to use a peremptory strike on that person. The scaling could be opposite to search for the highest combined number—but the key is, each question is asking for the negative attitudes toward the case at the same end of the scaling spectrum. Here are some examples of scaled questions that could help you select a jury in a medical negligence case, concerned for people with the lowest number:

“On a scale of 1 to 5, with 1 being strongly agree and 5 being strongly disagree, how do you respond to these statements?

• A patient should never defer to a doctor’s treatment recommendation.
• A patient should always seek a second opinion before undergoing surgery.
• A doctor does not need to personally inform a patient about a surgery’s risks.
• Radiologists do not have a direct duty to a patient.
• A patient who is not bleeding should expect to wait at least an hour if they go to an ER.”

Open-ended questions. Open-ended questions must provoke thought to get into the belief systems you are trying to discover, even when the goal may be challenges for cause. This process does not lend itself to a template easily transferrable to any case. A minor car crash requires different inquiries into how people feel about accountability than a commercial tractor-trailer crash case. Likewise, inquiries in a medical negligence case may differ completely from those in a products liability case or a workplace injury case.

Consider the breadth of core attitudes that impact a potential juror’s ability to be fair in these examples:

• Who feels that if they or a close family member were injured by another person’s negligence, that they would never bring a lawsuit? Why do you feel that way?
• Who feels that the facts in an individual lawsuit just don’t matter anymore—you just see too many lawsuits that it affects the way you view any case?
• How many of you feel there just hasn’t been enough accountability in America in the last decade? Why?

Open-ended questions require surrendering control, which is why it’s imperative to think intentionally about how you craft them.

Knowing which of these question formats to use to obtain certain information from prospective jurors can help you achieve your goals during jury selection. Next time you prepare for voir dire, go back to the basics to consider how you can use the form of your questions intentionally to serve your goals and work to your advantage.

Jim Perdue Jr. is an attorney at Perdue and Kidd in Houston and can be reached at jperduejr@perdueandkidd.com.