Managing Director, Jury ConsultingA2L Consulting
by Laurie R. Kuslansky, Ph.D.
1. What makes a “bad” juror depends on your presentation plan.
It is easier to change your plan than to change the jury. Say you’re in Delaware (the headquarters of DuPont) and you plan to say at trial that your product is fine, and that DuPont makes a similar product, but yours is better than theirs. In that case, you might want to strike people with DuPont ties. The problem is that there are so many of them and they might otherwise be fine for your case, so instead of bashing DuPont gratuitously, drop this line of argument. Instead, frame the point more neutrally, e.g., that your client and DuPont make similar, perfectly fine products.
2. You are not there to make friends, but to spot enemies.
We often find stock questions among the list of favorites at law firms that are exactly ... wrong, because they ask questions that reveal who their good jurors are. If you’re defending an employer in a wrongful termination case, don’t ask if someone has ever fired someone. Ask if they’ve ever been fired.
3. Making friends is the best way to help your opponent know whom to strike.
If you sense you have a good juror, stop talking. Stop eliciting favorable information, but not so quickly that it signals a “tell” to your opponent.
4. How you ask questions makes all the difference.
Do you want the “PC” answer or the truth? If you ask a juror whether she can be fair, of course she will say yes.
Instead of asking if someone can be fair, perhaps ask:
“Can you think of a reason you might not be fair in this case?”
“Is there any reason my client should be uncomfortable with you as a juror in this case?”
“What haven’t we asked that we should know?”
“Is there even a little doubt that you could completely put that out of your mind when deciding this case?”
5. Asking open-ended questions yields better information.
“Can you describe your educational path?”
6. Asking why and how is more valuable than if, what and when.
It is more important to understand the reasons people chose to shift positions in their career path and how they felt about those changes than merely what jobs they had and when. Exploring transitions, whether professional or social, tells much more. Are they happy being retired? How did that come about – voluntarily or not? Is it the best thing or worst thing that ever happened to them? Why?
7. Making it easy to express bias takes more than just asking.
It requires setting the stage so that people are comfortable to admit to bias. For example, rather than saying,
“Does anyone here think that rich people like my client don’t deserve to get richer – even if they are right?”
Create comfort to admit it:
“Many people aren’t comfortable making decisions that result in awarding money, especially a lot of money, to people who are already rich, and we understand that. If you may be one of those people, that’s fine. Just raise your hand and let us know your thoughts (but don’t give them a chance to espouse their opinions in open court and risk polluting the panel).”
“If you’re even the slightest bit hesitant to award my client money because you may think he/she does not need it, you’d be doing us all a favor by letting us know now.”
8. Assume nothing.
Say your client is accused of mismanagement of money. You think that business supervisors will be your best friends. Think again. We often find that people with related knowledge and experience live to one-up your client and their opinion counts double to other jurors who see them as experts in deliberations. If you don’t ask pointed questions of them during voir dire, you won’t know if they are friends or frenemies until it is too late -- after trial.
9. Revisit stereotypes.
Assume your case involves the issue of whether a driver did the right thing or not. You hear that someone is a stay-at-home mom and dismiss their potential for leadership. Think again. If they are in charge of the family chauffeuring and car-pooling, they may spend more time on the road than anyone else with a “day job.” Ask questions that are specific about backgrounds and experience without making assumptions.
10. Judges are more willing to accept suggested voir dire questions from counsel that many lawyers assume.
Unless you ask, you won’t know, and sometimes a judge will vary his or her approach based on the case, so don’t assume that because they don’t usually permit this, or didn’t permit it the last time, they won’t this time.
11. Know the rules.
Many people assume they know the local rules for jury selection, but in fact, overlook a number of potential resources that can help, such as what constitutes improper rehabilitation, the impact of prior jury service in disqualifying a potential juror, affiliation with insurance companies, whether you are entitled to make a record, and so forth. Does the verdict have to be unanimous? If not, what is required? Review these in detail and have them available in court to cite as needed. Judges may not like it, but it’s your right to make a record and to enjoy your rights. You may be surprised to learn what they are. Here’s an example for New York State available on the state court website: https://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf.
12. Know the procedures in advance, e.g.:
How many peremptory strikes will each side get?
How many people will be in the voir dire pool?
How does voir dire proceed in that courtroom?
How many jurors will the judge put on the jury?
How many other jury trials are slated that week to pick from the same pool?
Will you be getting a fresh group or one that was already “picked over”?
Will there be alternates? How many? How many extra strikes does each side get for alternates?
What is the judge’s approach to hardship requests and excusals?
Who will ask the questions?
Will the judge permit the lawyers to speak to the prospective jurors directly?
Will he or she let the attorneys ask any follow-up questions?
What are the standard questions the judge or clerk always asks, if any?
What method does the judge use for reporting strikes – blindly, alternating, other?
How does the judge handle requests for strikes for cause?
What has the judge historically considered as a bias? Does the judge employ White’s or the Struck method? Do you have a choice/preference?
Will alternates be designated or not? If you pass your turn, do you lose your strike(s)?
Is there back-striking?
Will everyone be voir dired before you report strikes or only some, in rounds?
What information – if any – does the Court provide counsel in advance?
How much time will the judge give counsel to review the information before reporting strikes?
Is there wi-fi in the courtroom so your team can access social media about prospective jurors?
Can counsel and staff bring their mobile devices to court as a backup for online searches?
13. Don’t assume jurors are aware of all the information that the trial team knows.
We often find that when an opponent runs positive ads about itself or a litigant gets bad press, it is top-of-mind to our clients, while jurors are unaware of it or don’t care. While such information is at the center of the client’s world, it is not at the center of the jurors’ world. You don’t want to use voir dire to alert people who were not aware of this information, but you do want to find out if anyone is aware and if that biases them. One way to explore this is, rather than mentioning the press specifically, to ask generally whether anyone has heard, seen or read anything about the company and, if so, to explore their response -- but not in open court or, if the judge permits, in writing.
14. Check when proposed voir dire questions are due (in the pretrial motion? Another time?), leave time to review and edit, and don’t assign the task to people with no jury-selection experience.
15. Sometimes getting no information is better than getting information.
Remember, whatever you reveal, your opponent reveals at the same time. Lawyers instinctively tend to want more information and believe that more is better. However, they may forget that someone invariably benefits more from the information. For example, say your client is a manufacturer accused of making a dangerous product or a chemical producer charged with polluting the local groundwater. How many prospective jurors are likely against you just walking into the courtroom? Is it 75%, 80% or 90%? That means that about 10-25% may be open to hearing your side. If you ask nothing and learn nothing about the pool, you have a 1 in 4 to 1 in 10 chance of keeping your good juror(s). If you ask questions, on the other hand, then your opponent is less likely to miss them and more likely to strike them based on information rather than chance alone. You’d be better off with your opponent striking in the dark. In that case, ignorance can be bliss.
Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting: