by Laurie R. Kuslansky, Ph.D.
Expert Jury Consultant
A jury questionnaire is distributed to jurors when they arrive for service. More often than not, this is a highly contested document that all parties want to have a voice in crafting. Knowing what to ask for without overreaching is critical since a judge may revert to a default jury questionnaire.
As in any investigation, answers are only as good as the questions. Accordingly, a jury questionnaire should avoid “garbage in/garbage out” like the plague. I have seen far more bad questions than good ones on jury questionnaires. The following is a guide to help avoid questionnaires that ask a lot, but answer little by way of useful information and helpful results.
A good jury questionnaire …
- Avoids questions that reveal your good jurors.
Perhaps the most frequent mistake is asking questions to reveal friends rather than enemies. For example, why should a civil defendant ask, “Do you think there are too many frivolous lawsuits?” or “Do you agree there should be a cap on damages?” If someone agrees, you have just given your opponent a gift. You’ve done their job for them and made it easy to target your good jurors for follow-up questions or a strike, whether for cause or a peremptory.
Instead, target enemies! For example, better defense questions leave more room to reveal adverse opinions to your side, such as, “Do you believe that if a case gets to court, it must have merit?”
- Is based on data, not opinion or past experience alone.
Often, litigators hold beliefs about what makes a good or bad juror. Sometimes those beliefs travel from case to case, venue to venue, just like their courtroom suits, but have little to back them up when tested. Jury research, done properly, with a sufficient sample size to perform statistical analyses may reveal traits unrelated and unexpected to those theories.
Who cares if they have children, unless it might relate to the case? Instead of asking 5 or so questions, e.g.,
Do you have children?
If so, what are their names, ages and genders?
Are any employed?
If so, what is their job and who is their employer?
Are they married?
… ask what you need to know, e.g., “Do you or any immediate family member know any of the parties or witnesses in this case?”
For example, in a patent dispute involving American inventors with no commercial success and Japanese alleged infringers with great commercial success, the Japanese defendant wasted all its strikes on people who expressed anti-Japanese sentiment. The reality was, based on extensive statistical profiling, that was unrelated to verdict preference. Instead, what mattered was whether a prospective juror liked new gadgets or not. Those who did not were inclined to find for the inventors; those who did tended to find for the Japanese defendant.
- Isn’t too long.
Though the return on investment is unlikely to be worth it, one of the only benefits of an extensively long questionnaire is that it reveals people willing and able to complete it, possibly indicating endurance, perseverance, patience, and other traits.
However, there are better, more efficient ways to do so, such as looking for detail orientation in the nature, number and literacy of the responses. Another hazard of lengthy questionnaires is that trial teams tend to underestimate the time it will take to review and rank them all.
Unless you are doing an apples-to-apples comparison, i.e., using the same basis to rank all prospective jurors using all the answers, it is wasted, or worse: ranking using different criteria.
Ask what matters and what you need to know, not everything there is to ask. Tasking associates without trial experience with drafting the questions can be a recipe for lengthy, but misguided, questionnaires. Trying to prove their diligence often equates to longer, not stronger, questionnaires. In addition, it is imperative for anyone drafting the questions to have a firm grasp on the strategy planned for trial so the questions reveal who might reject it. For example, are you going to bash a competitor who isn’t a party? If so, you must ask if anyone may have ties to them.
- Makes it easy to express hostile feelings toward you/your client.
This is high art. An anemic, yet typical way to ask such questions is, “Have you reached any opinion in this case?” Or, “Do you have any negative opinions about (my client)?”
A more likely way to yield what you need to know (bias against your client), is to ask questions such as “Do you have the slightest doubt that you could find for my client if the evidence proved the case?” “Is there any reason, no matter how small, that you might not be able to see my client the same as the other side?” “Can you think of anything at all that might make you lean more toward the other side?” “Everyone has experiences that they bring with them to court. Can you think of any experiences that may make you think, right from the start, that you might not like my client or have sympathy for the other side?” “Is there any reason you might be uncomfortable finding against the other side?” “How difficult would it be to accept that my client did nothing wrong?” It is important to add a follow-up, “If so, please explain.”
Be sure to use open-ended questions (rather than yes/no) to learn more of what they think and how they express themselves.
- Looks for signs of potential leadership and impact on other jurors (higher education, related experience, prior jury service, extroversion, leadership positions, management experience, self-reliance, articulate communicators, know statistics, prestigious job, and the like).
Again, think broadly about this, not just literally. For example, a nursery-school teacher may have more skills to bring consensus and lead a group than a burly truck driver. Ever tried to get a dozen toddlers to nap at the same time?
- Explores potentially related knowledge or experience.
Don’t analyze your case in narrow terms when it comes to exploring potentially relevant experience. For example, if it’s a patent case, knowing whether or not someone ever applied for a patent isn’t likely to yield information about the majority of potential jurors. Instead, explore the mindset that could hurt you and applies to more people.
If you are the patent holder, you might ask, “Please explain if you believe that patents hurt competition.” “Do you think patents hurt consumers by driving up prices?” “Do you agree that, unless an inventor can make their invention a commercial success, it has no value?” “Have you or someone close to you ever been hurt in business by a larger/better known competitor? If so, how?”
If you are the alleged infringer, you might ask, ”Do you believe it is unlikely for the U.S. Patent and Trademark Office to make a mistake when issuing a patent?”
More broadly, you might want to explore whether they are interested in gadgets and new innovations and the type of technology and factors they consider when deciding whether to buy new technology in order to determine their attitudes about innovation. This may be more predictive of jurors who value commercial success over inventive credit.
Perhaps someone has a high regard (higher than warranted) for government agencies and doesn’t feel equipped to disagree with the U.S.P.T.O.
- Isn’t afraid to ask probing questions that are relevant, but assures privacy if the juror reveals such information.
- Isn’t afraid to express advocacy rather than pretending to be entirely neutral.
Do you really want someone impartial? Of course not! You want someone partial… to you, or at least not partial to your adversary, but you have to be able to ask a question that is allowed. Remember, though, not to ask questions to reveal your friends (or go back to point 1).
The solution? Ask about bias against your client and let the other side do its own handiwork. Instead of asking, “Can you be fair to both sides equally?” – you’ll do better asking, “Can you think of any reason you might not be able to be fair to my client? If so, please explain.”
- Includes questions that may bother the opponent, but not the judge.
Most judges amenable to a jury questionnaire will do so if the sides can agree on the questions. When there is a disagreement that goes to the judge – unless it is so vital that you ask certain questions – avoid ones that are merely for curiosity, but yield little fruit. For example, there is research that shows people who have bumper stickers tend to be angrier (regardless of what the sticker says) and wish to extend their ego boundaries to impact others more than people who don’t, but if your case is venued where most people take public transportation, why bother?
- Include meaningful follow-up questions to get to the truth if standard, but useless questions (“Can you be fair and impartial?”), must be asked.
The problem with stock questions is that they yield almost nothing useful. Perhaps you will find a rara avis who stretches out its neck and announces in public, “Yep. I can’t be fair or impartial.” The majority, however, will give the “pc” answer and say they can. And, they’re not lying. But what “fair” means to them is not what it may mean to you or the next person. It just means that whatever they believe, they can abide by their own yardstick. The problem is, what is their yardstick?
Better questions ask about their actual beliefs, experiences, and views. For example, are they more inclined to believe in personal responsibility, or tend to be victim/blamers? Do they inflate the obligations of others to take care of them? Do they believe in more regulation? Are they offended by decisions that are “just business”? These are more likely to get to prospective jurors’ world view and potential view of the case than wholesale questions that do not.
- Learn about A2L Consulting's trial consulting and jury consulting services
- 5 Questions to Always Ask in Voir Dire
- 10 Key Things to Know About Social Media & Jury Consulting
- 10 Ways to Spot Your Jury Foreman
- 13 Changes Coming to Jury Consulting & Trial Consulting
- 10 Things Every Mock Jury Says Everytime
- A2L voted #1 Jury Consultants by the Readers of LegalTimes