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February 13, 2024 Feature

Voir Dire and the Modern Jury Panel

Michael F. Pezzulli
Jury selection is crucial. You must consider the questions to ask at voir dire and the charge to the jury from the day the client is retained.

Jury selection is crucial. You must consider the questions to ask at voir dire and the charge to the jury from the day the client is retained.

Guy Cali via Getty Images

Jury selection is a unique part of the trial, and every trial lawyer must consider the voir dire, what questions to ask, and the charge to the jury from the first day that the client is retained. To track the elements of the case, an efficient trial lawyer will set up a jury charge notebook and a voir dire notebook that can be annotated as the case progresses.

To even get to a jury selection, the parties must make a timely request for a jury trial. It is undisputed that “where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved . . .” (U.S. Const., amend. VII). However, at least one party must file a demand for a jury trial by serving the other parties with a written demand and filing in accordance with Federal Rule of Civil Procedure 5(d) (see Fed. R. Civ. P. 38). The same is true in state courts (see, e.g., Tex. Const., art. 1, § 15, “The right of trial by jury shall remain inviolate”; note that I will refer throughout this article to rules and procedures in Texas, as that is the state where I practice, but each state will have its own variations). A request for a jury trial must be timely made. “No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance. In addition, the jury fee must be paid” (see Tex. R. Civ. P. 216(a) and (b)). It is advisable to refer to your state’s individual rules as well as any local rules published by the individual courts so that you do not inadvertently waive your client’s right to a jury trial.

In all states, the right to a jury trial is clear in both criminal and civil cases. Sadly, jury trials appear to be a vanishing art. There has been a 25-year decline in the absolute number of civil trials. “Today, approximately 1 percent of all civil cases filed in federal court are resolved by trial—the jury trial disposition is approximately 0.7 percent and the bench trial disposition is even lower (Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, but Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does It Matter?, Judicature, Winter 2017, at 26).

What to Consider Before Commencing a Voir Dire

You must formulate a basic understanding of your case prior to the start of voir dire. What are your themes? What is good and what is bad for the case? The trial lawyer must always be prepared to address the bad facts because opposing counsel surely will seize upon them.

You must also decide how you will approach several more specific considerations:

The Motion to Bifurcate

Is a motion to bifurcate the actual damages from punitive damages appropriate in the case being tried? The decision to “isolate the punitive damages phase of the trial is within the sound discretion of the trial court” (Thorne v. Welk Inv., Inc., 197 F.3d 1205, 1213 (8th Cir. 1999); see Fed. R. Civ. P. 42(b)). In some jurisdictions, such as Texas, the motion to bifurcate the trial must be raised prior to the commencement of the voir dire, or it is waived. “On motion by a defendant, the court shall provide for a bifurcated trial under this section. A motion under this subsection shall be made prior to voir dire examination of the jury or at a time specified by a pretrial court order issued under Rule 166, Texas Rules of Civil Procedure” (Tex Civ. P. & Remedies Code § 41.009). Do not make the mistake of failing to move to bifurcate if you believe that bifurcation is appropriate.

The Texas Jury Shuffle

Apparently, the jury shuffle exists in only one state: Texas (Michael M. Gallgher, Abolishing the Texas Jury Shuffle, 35 St. Mary’s L.J. 303, 305 (2004)). In its simplest form, the Texas jury shuffle is a procedure where, if one of the parties does not like the “look” of the panel, he or she can simply demand a jury shuffle, which is a unique procedure that dates back to the 19th century (see Yanez v. State, 677 S.W.2d 62 (Tex. Crim. App. 1984) (en banc)). The purpose of the jury shuffle, at least in theory, is to make the panel fairer. Regardless, the existence of a Texas jury shuffle is a consideration that every attorney in Texas must recognize prior to the commencement of the voir dire examination and is guaranteed by statute (see Tex. R. Civ. P. 223).

The Batson Challenge

Every lawyer needs to be aware of what has come to be known as the Batson challenge. As the U.S. Supreme Court has stated: “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause” (Batson v. Kentucky, 476 U.S. 79, 80 (1986)). What does this mean to the lawyer conducting a voir dire in a civil case? In the 1991 decision in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 615 (1991), the U.S. Supreme Court held that “[r]ace-based exclusion of potential jurors in a civil case violates the excluded person’s equal protection rights. . . . The case is remanded for a determination whether Edmonson has established a prima facie case of racial discrimination under the approach set forth in Batson . . . such that Leesville would be required to offer race-neutral explanations for its peremptory challenges” (citations omitted). This is now, obviously, the law of the land.

Reverse Racial Preferences

Reverse racial preferences are now a reversible error in the state of Texas. In United Rentals N. Am., Inc. v. Evans, 668 S.W.3d 627, 631 (Tex. 2023), the court discussed the fact that “[d]uring jury selection, counsel for the plaintiffs stated that ‘the African-American female is the most favorable juror for this case.’ This announced preference was consistent with the plaintiffs’ peremptory strikes of four white men and one Hispanic man. . . . We hold that a new trial is required. Most Batson claims ask courts to engage in the speculative enterprise of inferring race-based motivations from a record that is facially race neutral. This is the rare case in which the record contains an admission of counsel’s preference for jurors of a certain race.” This language, probably universally applicable, disposes of the issue of whether or not an attorney should consider race in either picking or striking a potential juror.

Peremptory Challenges

A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation; however, as discussed above, the peremptory challenge cannot discriminate on the basis of race, ethnicity, or sex. If a Batson challenge is leveled at an attorney’s peremptory challenge, “the party exercising the challenge must provide a legitimate race-neutral reason for the strike. . . . If that is done, the trial judge must then make a finding as to whether the party exercising the peremptory challenge is telling the truth. . . . There is no mechanical formula for the trial judge to use in making that decision, and in some cases the finding may be based on very intangible factors, such as the demeanor of the prospective juror in question and that of the attorney who exercised the strike” (Flowers v. Mississippi, 136 S. Ct. 2157, 2158 (2016)). The essence of the case law is that if a peremptory challenge is leveled against a strike, then the attorney must be prepared to provide a legitimate race-neutral reason for the strike. Failing that, the peremptory challenge may be reversed.

Challenges for Cause

In its broadest sense, a challenge for cause means the lawyer has a specific reason for believing that a juror would not be able to be impartial. An example of a challenge for cause occurred in a five-week voir dire I was conducting in a sexual abuse case involving the Roman Catholic Diocese of Dallas. As we were down to the last 70 potential jurors and about to begin the process of weeding out the panel, a middle-aged Caucasian man came forward and announced he was a racist and hated Catholics, Jews, Blacks, Italians, and essentially anyone who did not look like him. I was so stunned I made the mistake of asking him, “What did you say?,” and he proceeded to repeat what he had just said. This ended up being a joint challenge for cause.

There is no limit to the number of jurors who may be excused for a challenge for cause; unlimited challenges are allowed because it is important under the U.S. Constitution to have a fair trial for both sides of a trial by jury. In federal court, all “challenges for cause or favor, whether to the array or panel or to the individual jurors, shall be determined by the court” (28 U.S.C. § 1870). Texas Rule of Civil Procedure 228 provides, “A challenge for cause is an objection made to a juror, alleging some fact which by law disqualifies him to serve as a juror in the case or in any case, or which in the opinion of the court, renders him an unfit person to sit on the jury. Upon such challenge the examination is not confined to the answers of the juror, but other evidence may be heard for or against the challenge.” The procedure for challenges for cause is codified in Texas Rule of Civil Procedure 227: “A challenge to a particular juror is either a challenge for cause or a peremptory challenge. The court shall decide without delay any such challenge, and if sustained, the juror shall be discharged from the particular case. Either such challenge may be made orally on the formation of a jury to try the case.”

Preservation of Error on Denial of Challenge for Cause

What do you do when the trial judge denies your challenge for cause? You must preserve error. The party aggrieved by the denial of the challenge for cause is required, before exercising peremptory challenges, to alert the trial court that the court’s ruling on the challenge for cause was in error and was harmful, affording the trial court to correct the error by reconsidering the merits of the challenge or granting additional preemptory challenges. To preserve error that the trial court abused its discretion in refusing to strike a juror for cause, the trial attorney must not only obtain an adverse ruling on the motion to strike but must also put on the record that he or she will be forced to use a peremptory challenge exhausting its remaining peremptory challenges, and, as a result of such, the attorney will have one or more specific objectionable venire members who will remain on the jury list. The attorney must also make a request for additional peremptory strikes. The counsel must also demonstrate to the trial court that if counsel had not been forced to use that peremptory strike, counsel would have used the peremptory challenge on a different particular juror; counsel here does not need to explain why the juror is objectionable. In effect, it is a five-step process on a denied challenge for cause to demonstrate that the party suffered a detriment from the loss of a peremptory strike, and the error harmed the party.

Practical Voir Dire Considerations

Many courts have a preferred seating chart for the panel. Make sure you know the size of the panel in advance of jury selection and how the court and bailiff want to seat the panel. Then, you can prepare a seating chart.

For years, I have either bought or laminated my own number cards for the jury, and as my eyesight has gradually become compromised, the number cards have gotten larger. These days, I bring in 8.5”-by-11” cards with the juror numbers on both sides of the card. I then give them to the bailiff to distribute to the panel. I will let the bailiff have them so the bailiff can use them for other trials.

Before the panel enters the courtroom, with the permission of the judge, move your seats at the counsel table from the side facing the judge to the side facing the panel so that counsel and clients can see the entire panel.

As the panel comes in and is seated, don’t be shuffling around, acting like you don’t know what you are doing. Be prepared to immediately stand and begin your voir dire.

Know what is called your “strike zone.” In other words, you will have 12 jurors, and each side has six peremptory challenges. That means, without any challenges for cause, you should focus on the first 24 potential jurors. You virtually never have the luxury of focusing only on the first 24, however. There will be potential jurors excused for a plethora of reasons, including having children at home, being unable to read or understand English, having a condition that prohibits them from sitting for any length of time, having a vacation that was planned for some time, having work commitments, etc. Therefore, you need to keep your strike zone flexible and never fail to encompass the entire strike zone as it expands beyond the first 24 individuals. You may end up with someone on the jury you truly regret if you fail to keep track of the shifting set of 24 potential jurors in the strike zone.

Make sure you know if the court you are in has any “unwritten rules.” For example, I was in trial representing a lawyer in Freestone County, Texas, against a national bank. After I finished my voir dire, the Dallas-based bank attorney stood up to commence his voir dire, pushed through the bar, and started to talk with the panel up close and personal. The judge, who was an old country judge, literally said, “What are you doing, boy?” The lawyer tried to explain he was conducting his voir dire. The judge said, “We don’t do that down here, get back behind the bar.” The poor lawyer turned beet red and came back and stood behind the podium for his entire voir dire. We settled the case as soon as the jury was in the box. This is a simple error to avoid. Call the clerk or bailiff and ask if the court has any preferences for conducting the trial, voir dire, and opening.

Finally, consider the process from the point of view of potential jurors. They don’t want to be bored, and they certainly don’t want their time wasted. They are already less than pleased that they have been forced to sit on a cold, hard bench longer than they want, which is a fact that the trial lawyer must recognize and work to avoid. If possible, attempt to persuade the trial judge to wait to call a panel to the court and let them sit outside the courtroom while the lawyers argue ad nauseam over motions in limine and preliminary matters. It is advisable to either have all those preliminary matters handled well before the day the trial starts or ask that the judge hold off calling the venire panel until absolutely necessary. Believe it or not, if you ask the court, it has been my experience that most judges are receptive to not frustrating their panels.

Conclusion

The voir dire is a unique part of any trial. Despite trying cases for 47 years, I turn to the books on how to conduct a voir dire and rework my voir dire every time. Every case is different, and I do what I can to avoid mistakes in the case I am trying.

There is so much more to voir dire that is beyond the scope of this article. I hope I have provided you with a good starting point, regardless of whether this is your first or 100th voir dire.

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Michael F. Pezzulli

Solo Practitioner

Michael F. Pezzulli (courtroom.com) is a Texas attorney board certified in civil trial law since 1986. For more than a decade, he was an examiner for the Texas Board of Legal Specialization, and he practices exclusively in the area of civil trials, having tried five jury trials in 2023 alone. He is a coauthor of four editions of the ABA publication The Attorney-Client Privilege in Civil Litigation.