Juror attitudes and experiences are often a decisive factor in jury verdicts. Yet thorough and systematic jury selection that probes case-related attitudes and experiences of potential jurors tends to be the exception, not the rule in trial practice. Uncertain about best methods and uncomfortable with the voir dire process, many attorneys continue to rely on trial instincts or generalized stereotypes (e.g., women are more sympathetic; accountants are better defense jurors) to determine challenges. Such approaches often leave biased jurors on the panel. This article suggests a practical and efficient process for examining a venire, evaluating potential jurors, and exercising intelligent strikes, regardless of the nature of the case or the side being represented. By following the eight practical steps outlined here, jury selection can be a productive, less anxiety-provoking process for both attorneys and potential jurors.
STEP 1: Identify the Key Elements of Your Case
Examine your case from the “big picture” perspective and list all the elements or central issues most likely to strike a cord with jurors. For example, in a medical malpractice case, the issues might include quality of medical care, standards of care, informed consent, roles and responsibilities of health care providers, experiences with medical care (self and family), knowledge of medicine, work experience in medical settings, etc. In an insurance bad faith case, the elements might include attitudes toward the insurance industry, beliefs about claims processing practices, experiences with insurance companies and claims (self and family), work experience in the insurance industry, consumer advocacy, etc. In an employment discrimination case, the elements might include experiences with harassment or discrimination, past bad experiences with supervisors, witnessing unethical behavior in the workplace, management work experience, attitudes toward company leadership, attitudes about filing of grievances, etc.
The goal of your analysis is to identify case issues that may directly or indirectly interact with the individual beliefs, opinions, personal experiences, personality traits (such as leadership or authoritarianism), training and education, work experience, values or demographics of potential jurors. The key is to be inclusive in the analysis rather than exclusive.
STEP 2: Construct a High Risk Juror Profile
A High Risk Juror Profile (HRJP) is a carefully constructed list of specific juror attitudes and opinions, life experiences of self and family, personality traits, educational and work experiences, and demographics that are likely to interact with the central issues in the case, as identified in Step 1. For example, the HRJP for a case in which the plaintiff is seeking large damages might include the belief that people who file lawsuits have questionable motives, or the opinion that damages should be limited by law or have a “cap.” Personal experiences as a defendant in a lawsuit or legal claim, work experience in risk management, and the tendency to be very conservative with money might be important. A complete profile typically isolates the key 10-12 relevant attitudes, 10-15 case-related life experiences, 2-3 personality traits, 5-6 areas of training and experience, and 1-2 demographics (if any) that would be important to know about a prospective juror. While the HRJP will therefore vary from case to case, the process of assembling the profile remains the same.
A frequent question posed by attorneys is, “Who do I want on this jury?” Since jury selection is a process of eliminating biased jurors rather than retaining “good” ones, the question might seem irrelevant. However, it is important to know who are your best jurors, and thus, who are likely strike targets for opposing counsel. Constructing a “low risk profile” helps to 1) identify jurors who may warrant rehabilitation efforts if opposing counsel attempts a cause challenge, 2) identify those jurors you should question very little in order to avoid revealing them to opposing counsel, and 3) anticipate opposing counsel’s likely voir dire areas.
STEP 3: Develop Your “Top Ten” Voir Dire Questions
Knowing exactly what questions you intend to ask jurors reduces voir dire jitters and reinforces the image of a well-organized and systematic attorney. These traits earn high marks with jurors. To compile your “top ten” list, ask yourself, “What questions must I ask in order to discover the attitudes, life and work experiences, and other characteristics on the High Risk Juror Profile?” While there is no magic to the number ten, your key areas should be fairly focused and may include a number of sub-questions.
For example, as plaintiff’s counsel in a personal injury auto accident case, critical voir dire areas might include attitudes toward lawsuit claimants; opinions about lawsuits and damages; experiences as the party at fault in an auto accident; training or work experience in traffic or
highway safety; experience in caring for a severely injured or disabled person; experience with the specific injuries involved; training in the medical or rehabilitation field; etc. These areas would flow directly from the HRJP. Thus, once you know who the high-risk jurors are likely to be, developing the top ten (or more) general voir dire questions is relatively straightforward.
STEP 4: Begin With the Easy Questions
Voir dire can be a tense time for everyone. Attorneys are concerned about making a good first impression while probing into jurors’ personal experiences and beliefs. Jurors are concerned about possible embarrassment or invasion of privacy. To ease these tensions, begin with easy questions that require jurors to simply raise their hands in response. Start by going down the list of case-related life experiences from the HRJP: “How many of you or someone close to you have ever …..” Using this preface, rather than the traditional, “Has anyone ever …” casts a wider net and can preserve some level of privacy on more sensitive issues. Using this preface and simultaneously raising your own hand also signals that at least one person is expected to have had this experience. Then go to the next area: “How many of you or someone close to you have ever ……” You will want to have a system for recording these responses quickly. Reserve follow-up until you have finished the hand-raising questions.
The hand-raising technique accomplishes four important goals: a) it is a non-threatening way to ease everyone into the voir dire process, b) it quickly identifies those jurors who have had several experiences associated with “high risk” for your case, c) it enables you to tailor and focus your follow-up questioning, and d) it enables jurors who are reluctant to speak in public a means for responding to questions. Using a grid to record hand-raising responses allows you to identify quickly those jurors that warrant follow-up.
Next, follow-up all case-related experiences by probing for attitudes and opinions formed as a result of the experiences. Two jurors may have had very similar experiences, but formed distinctly different opinions about them. Assume nothing. Use open-ended questions such as, “What did you learn from that experience?” or “Can you tell me more about that?” to get jurors talking about feelings associated with their experiences.
STEP 5: Brush Up on Effective Questioning and Follow-Up Techniques
Good attorneys are not always the best communicators during voir dire. This happens when attorneys fail to use a style for voir dire that is distinctly different from their cross-examination style. Treating potential jurors like witnesses being “examined” makes them feel defensive and uncomfortable. Here are some important communication rules to brush up on before beginning voir dire:
a) Relax. Jurors are good at “reading” the anxiety levels of attorneys. Avoid sending the message that you dislike the voir dire process (dislike them?) or that you are uncomfortable conducting
voir dire (not a very skilled lawyer?). This is the time to reveal your most personable self.
b) Stop talking and start listening. Your time to talk will come later. This is your only opportunity to learn the information needed to exercise informed strikes. Jurors expect you to be listening to them, not talking about your case.
c) Ask open ended questions to get jurors talking. Closed-end questions that require only a “yes” or “no” response tell you little. Make jurors comfortable talking about their feelings, thoughts, and experiences by appearing interested and empathic. Give each juror your full attention.
d) Treat every juror with respect by using their name, not interrupting their answer, and looking them in the eyes. Don’t write down responses while they are speaking. Always thank them for being honest and candid.
e) Avoid empty questions such as “Is there anyone here who thinks they cannot be fair in judging this case?” or “Can you listen to the evidence in this case and make a fair and impartial decision?” Asking jurors to admit biases snares only those who wish to avoid jury duty. Most people are unaware of their biases and are likely to give a socially desirable answer, not an honest one.
f) Don’t avoid asking important follow-up questions out of fear of “poisoning the well” or “tainting” other jurors. Attitudes are rarely formed over the course of voir dire, and few jurors form opinions on the basis of the experiences of others. The experiences and attitudes expressed by other jurors may validate their own, but rarely create new ones. It is much better to learn of jurors’ negative attitudes toward your client before the jury is empaneled, when you have a chance to strike them, than after the adverse verdict is delivered!
STEP 6: Prioritize Jurors Based on Risk
Comparing the responses of potential jurors to the HRJP enables you to begin categorizing them according to degree of risk. Regardless of the system used (e.g., red-yellow-green or high-moderate-low), begin classifying each juror as soon as possible, and revise ratings as you
learn more about them. For example, “red” jurors may be those whose attitudes and life experiences are very clearly adverse to your case (i.e., match critical elements of your HRJP), “yellow” jurors may be those about whom you do not know enough, or whose risk level remains uncertain. “Green” jurors are those who tend to match your low risk profile. Avoid extensive follow-up with “red” jurors, as their responses will most likely continue to reflect negatively on your client. Avoid extensive follow-up of “green” jurors because you may
reveal them as likely targets for opposing counsel strikes. Focus your follow-up on “yellow” jurors in order to learn enough to categorize them with some confidence.
You will most likely revise classifications throughout voir dire as both sides question prospective jurors. Here is where the “science” of jury selection melds with the “art.” Listen to your gut instincts and those of your client when revising classifications. A potential juror who “looks good on paper” may be shooting visual bullets at you or your client.
STEP 7: Pursue Cause Challenges With Sensitivity
Many litigators are reluctant to pursue challenges for cause, for understandable reasons. Pursuing a cause challenge, only to be denied by the judge, can be the source of disappointment if not outright embarrassment. Attorneys often fear that the questioning necessary to establish a cause challenge on the record may be viewed by jurors as hostile or invasive. Some attorneys simply don’t feel comfortable “challenging” a juror in front of others and want to avoid making the juror feel targeted. Yet in many cases attorneys find themselves with more high-risk jurors than strikes. Knowing you are seating biased jurors, or jurors highly likely to be adverse to your case, is a painful reality for any trial attorney.
With the right methods, the pursuit of cause challenges need not be unpleasant for either attorney or juror. Rather than suggesting a potential juror may not be capable of fairness, try inquiring whether the issues in the case might elicit painful memories, arouse negative feelings or make the juror very uncomfortable. Ask if a particular experience or situation would make this a difficult case for the juror to sit on. Inquire if the juror would prefer to sit on another jury, perhaps one that involves different issues. Demonstrating your sensitivity to how a juror’s case-related experience may affect him or her if chosen to sit on the jury removes the appearance of a “challenge” and wins the respect of other jurors. In fact, when pursuing a cause challenge, the words “biased,” “prejudiced” or “unfair” should never be spoken.
STEP 8: Exercise Peremptories Systematically
Once you have prioritized jurors according to risk, pursued necessary cause challenges, and evaluated the jury roster against good instincts, the exercise of peremptory challenges is straightforward. If you find yourself in the position of having too many high-risk jurors for the number of peremptory strikes remaining, consider which of those jurors are more likely to exert
influence in deliberations. It is wiser to leave on the panel a high risk juror who can be expected to be less influential and to play a minor role in decision-making than a lower-ranking (yet high risk) juror who has leadership abilities, who has been articulate and outspoken during voir dire, and who is likely to be a discussion opinion-leader.
Be cautious about allowing a juror to remain on the panel who has substantial personal or work experience regarding the issues in the case. Such “jury room experts” can exercise considerable influence during deliberations. It’s not uncommon for jurors to give more weight to the arguments of a fellow juror than to a “hired gun” expert who testified in court. Also, be cautious of leaving anyone on the panel with legal training (especially attorneys), regardless of how strongly you feel they are on your side. There are few harsher critics of a professional practice than one’s colleagues, and no more influential jurors once the deliberation room doors are closed.