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Jury Questionnaire by the Numbers

Laurie Kuslansky
By: Laurie Kuslansky

Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Judges

 

by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Attorneys considering using a jury questionnaire may not consider the math involved. Here are some guidelines that can help to prepare properly and make wise decisions:

JURY QUESTIONNAIRE - PROs

  • Ironically, prospective jurors who don’t have a background in the law or security seem to be more willing to admit bias in writing than in open court.
  • Just by the style, grammar and legibility of the responses, one can learn a lot.
  • One is more likely to gather more information about the potential jurors from a jury questionnaire.
  • You can rate the prospects on an apples-to-apples basis using the answers to all the same questions.
  • You have a written record to support potential strikes for cause.

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JURY QUESTIONNAIRE - CONs

  • It reveals a lot about your potentially good jurors to your opponents making them easier to strike.
  • It can lengthen the jury-selection process.
  • It can be costly to prepare.

JURY QUESTIONNAIRE - COMMON MISTAKES:

  • Not asking the judge if a written jury questionnaire is permitted
  • Asking closed-ended (“Yes” or “No”) questions that tell you little about the person, rather than open-ended and multiple choice questions that can reveal much more
  • Just as in voir dire, asking questions that can reveal your good jurors to your rival(s).
  • Asking so many questions that you don’t have enough time to truly consider the answers and compare each prospective juror to the others
  • Asking questions that are intellectually interesting to the drafter, but not good at revealing bad jurors for your side
  • Failing to ask questions that go to the root of the decision-making on core issues of your case
  • Omitting questions that can tee up bad jurors for cause strikes
  • Tasking people with little or no jury litigation experience with drafting the questions
  • Not opposing adversary’s questions which are off base.
  • Being afraid to ask questions about your side’s areas of vulnerability.
  • Giving up your good questions too easily without minor revisions that would leave them in the mix.
  • Wasting a precious opportunity asking “cute” questions that really aren’t meaningful predictors of bad jurors for your client(s)
  • Not building in enough time to draft the questions, vet them with the appropriate team members, and engage in negotiations with your opponent(s) on which are objectionable, which require revision, and the like.
  • Not coming up with a ranking system in advance so that you can truly compare your options on an apples-to-apples basis
  • Over-rating the risk of jurors unlikely to have any leadership potential or who are simply followers who pose little risk (e.g., barely literate, barely educated, insecure, shy, little or no related experience, poor verbal skills, weak knowledge of the language, etc.).

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JURY QUESTIONNAIRE - THE NUMBERS:

To understand why it is essential for a written jury questionnaire to be lean and mean, let’s use an example to help you consider the following:

1)     How long will it take for prospective jurors to complete it?

If there’s 10 questions per page and 5 pages (50 questions), it will take about an hour.

2)     How long will it take to make copies for all the parties?

Assuming two copies per side(4) and the Court keeps the originals, that’s 4 x 5 pages x 45 prospective jurors = 900 pages to be collated and distributed.

3)     How long will it take to review all the answers?

 In this example, 50 questions x 45 prospective jurors = 2250 answers to read and rank!

4)     How long will it take to ask follow up questions?

Assuming that each juror has 1-2 issues that arise as a result of their answers or failure to answer to questions on the written questionnaire, there can be about 45-90 follow-up questions per side, or 90-180 follow-up questions total, aside from any other questions that may be posed orally. If each question takes one minute to ask and answer (which is a conservative estimate), that’s potentially 3 hours of oral questionnaire follow-up in addition to the prior tasks.

Asking too many questions can be a case of diminishing returns if you don’t have enough time to weigh the answers and compare them among the prospective jurors. In addition, everything you learn from their answers, your adversary also learns, so consider who gets the advantage by revealing that information more.

In brief, if you are going to use a written juror questionnaire, you will get more by asking less, as long as the questions you do ask are extremely well thought out, allow room for open-ended replies, are written to permit potential jurors to feel comfortable to reveal even the slightest bias against your side, and leave enough time for you to review and follow up on the responses.

Other A2L Articles related to a jury questionnaire, jury selection and voir dire:

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