July 22, 2019 Articles

Effective Juror Selection Strategies: Part 3

Voir dire is ostensibly for choosing an objective, impartial jury, but nothing could be further from the truth.

By Steven Ginsburg

This is the third in a series of three articles on effective juror selection strategies. The first installment in this series was published in the spring 2018 newsletter from the Section of Litigation’s Pretrial Practice & Discovery Committee. The second installment was published in the spring 2018 newsletter from the Section of Litigation’s Business Torts & Unfair Competition Committee.

What strategies are available for jury selection? This article looks at juror stereotypes, when to keep bad jurors, things to avoid on voir dire, and special and sensitive areas of inquiry.

Juror Stereotypes

The fact that a juror shared a similar experience with a party does not necessarily mean the juror views the experience the same way. What the juror takes away from the experience is what will matter. It is what will shape the juror’s beliefs and thought processes and influence the juror’s biases. It is unwise to assume that every person reacts the same way to the same stimulus. Therefore, do not presume a predisposition. Use voir dire to delve into the juror’s attitudes that resulted from the experience, and determine whether the juror has beliefs or anticipates certain outcomes that may tend to guide the juror in deciding this case or in setting standards (or applying his or her personal standards) that will affect your positions. Jurors may respond to their personal experiences in the opposite manner in which one might expect. A juror with a bad experience may lower his or her standards and be more accepting of others who have a similar experience. A juror who experienced a great outcome may have higher hopes and greater standards. In either case, because it is the juror’s standards that will likely be applied, the conduct of the parties must be measured against the juror’s belief system.

Jurors who speak favorably about their superiors cannot be relied on to presume similarly about a party’s superior whose conduct is at issue in the case being tried. Such a juror may hold that party’s superior to a higher standard, based on what the juror has personally experienced, and may therefore be unfavorably disposed toward a superior who fails to match up. By the same token, jurors who have had bad experiences with companies or who have fallen victim to questionable business ethics may not empathize with a similarly situated plaintiff. Instead, such a juror may be more forgiving, expecting less based on the prior experience.

While there is nothing inherently wrong with using demographics, personality types, and techniques to infer personality and probable juror reactions from occupations or other characteristics and assumptions in jury selection, stereotyping has its risks. A juror who knows a party specifically or had direct involvement with the party must be carefully evaluated. A juror who experienced the same events forming the basis for a plaintiff’s claim and is expressive about that experience, as contrasted with a silent potential juror, may dispel concerns about his or her skepticism. An emotional juror may provide better insight than one who is passive or willing to accept error or inappropriate behavior.

Voir dire helps distinguish those jurors who appear to accept your case and those who appear not to or who appear to align with the opposition. As stated earlier, this is best accomplished by listening and understanding, and not by selling and persuading. Persuading or conditioning juries can still be woven into the effort, but it should be discrete and indirect, and it should be done by asking, not telling. Having jurors talk about their own beliefs and observations, their backgrounds, education, and training in a way that guides them toward agreement with your client and his or her case is more productive than talking to them and being perceived as force-feeding them. For instance, to persuade the jury that the defendant client tried to be careful in a breach of contract case, counsel could ask the jury whether “anyone here would not have a lawyer to review a complicated contract before signing it. Why wouldn’t you?” If jurors are asked whether they always read contracts before signing them, most jurors will answer “yes.” Instead, asking what the jurors would do when given a contract to sign allows the jurors to show their character, their attention to detail, their diligence, and level of responsibility. This, in turn, enables counsel to understand the juror who answers independently of suggestion by counsel.

For the same reason that it is counterproductive to force-feed jurors your arguments in voir dire, it risks irreparable harm to aggressively try your case at that time. The jury has no reason to accept your case, let alone believe you. Attacking the opposition can breed distrust, if not resentment, which will accompany you throughout the trial. Jurors do not appreciate being manipulated and can spot it instantly. Being the voice of reason and objectivity, in a calm, non-persuasive tone builds a foundation for confidence and trust, and provides an opportunity for your opponent to over emphasize its case. When the jury later sees the strengths of your case, the effect will be that more dramatic because you understated it early, at a time when the jury was not ready to be sold.

When to Keep Bad Jurors (Cause and Peremptory Challenges)                        

Challenges for cause. Another risk of early persuasion is exposing the more desirable jurors to challenges for cause. Disclosing the strengths of your case in voir dire may lead to the best jurors telling the court that they cannot be fair. By pointing out your weaknesses instead of strengths, the most unfavorable jurors can discuss their concerns and position themselves for being excused for cause. Similarly, if the opposition presents strong arguments during voir dire, it provides a further opportunity to disqualify unfavorable jurors, or at least identify who they are. You can even present your opponent’s best case for them, to expose risky jurors and influence those ultimately selected who later hear your side of the case. By lowering the panel’s expectations early, you can gain credibility as the case unfolds, and they realize how much stronger your case is than they suspected.

Jury selection consists of selecting and rejecting jurors. Through selective questioning, counsel can acquire knowledge and information about the jurors. Similarly, counsel may not want opposing counsel to obtain such information; consequently, you should take care not to ask questions that could provide the opposition with answers.

Securing a jury while minimizing the potential for unpredictable or even hostile jurors increases the chance for a favorable verdict. The use of voir dire to obtain open discussion and disclosure from jurors provides an opportunity for counsel to seek excusal for cause and to convince the court to remove unfavorable jurors who may otherwise exhaust peremptory challenges or remain on the panel.

Counsel seeking to excuse a juror for cause should try to get the juror to concede that he or she cannot promise or commit to being fair or objective, or cannot ignore his or her beliefs even if instructed to do so. Obtaining agreement from jurors that some aspect would be difficult to overlook in spite of the requirements of law makes it difficult for the court to deny a challenge for cause. However, to avoid alienating the juror (or the panel) in the event the juror equivocates or is rehabilitated by opposing counsel, questions should be asked in such a way as to keep the juror comfortable and not offended. Imposing values or judgments on the juror will likely be counterproductive in eliciting the desired answer, as well as in building rapport with the panel. Allowing jurors to feel that their beliefs are entirely acceptable and that everyone can understand their feelings, whether or not they have other opinions, allows for honest and candid responses—and potential cause to be shown. Hearing other jurors voice similar feelings is also supportive. Because most people do not want to acknowledge a prejudice, counsel must appreciate the unwillingness of jurors to admit an inability to be unbiased, fair, and impartial. So asking a juror whether he or she can be begs for a false “yes” answer, unless the juror wants to avoid jury duty and do so by disqualifying himself or herself.

The reverse strategy is true where you want to protect a juror from the other side’s attempt to have him or her excused for cause. In this case, you want to protect the juror and elicit an agreement to be objective, to render a verdict based only on the evidence and law as instructed by the court, irrespective of the juror’s personal feelings or opinions. Counsel can use the juror’s negative beliefs to advantage in obtaining a commitment to be fair by generalizing those beliefs and asking the juror if he or she can step away from what may be common knowledge and look at the specifics of this particular case based only on the facts and evidence.

Counsel should be thoroughly familiar with the standards that permit challenging a juror for cause. A challenge for cause should never be exercised until counsel has placed the juror beyond rehabilitation. Conversely, when your opponent challenges for cause, assist the juror in rehabilitation unless the juror appears to be so biased that you must agree with the challenge to show fairness. When a potential challenge for cause appears, consider a request to proceed in camera to avoid tainting the panel. Similarly, when presenting a challenge for cause, consider the effect of your foundational questions and challenge on possible contamination of the other jurors.

Peremptory challenges. Peremptory challenges require strategy and often depend on the procedure the court uses. Invariably, there are never enough available challenges. Different courts and different judges employ various methods. Some judges take a “use it or lose it” approach and require that each party announce its challenges to the entire panel that has been questioned. Other courts use some form of rounds, limiting peremptory challenges to the first 6 or 12 jurors, before moving on to the remaining jurors on the panel. Still other judges allow one side to “accept” or “pass” a particular panel, reserving the right to exercise further challenges before the panel is sworn. There are more variations, but these examples demonstrate the need for planning, anticipating, and preserving challenges to attempt to achieve an optimum panel. Optimum, because it is a virtual certainty that some jurors you want will not be seated and that others whom you prefer not to have will be. Know the number of challenges permitted and the manner the particular court employs for exercising them. The importance of knowing which procedure your judge employs, as well as the tendencies of your opposing counsel in jury selection, cannot be overstated. Equally important is knowing whether you waive any remaining strikes by passing or accepting a panel before it is sworn.

Sometimes, notwithstanding unfavorable jurors remaining, it may be better to accept them than what may follow should you excuse them. It may also be advantageous to leave such jurors on the panel if it prevents opposing counsel from challenging your preferred jurors who remain on the panel. Judgment must be exercised to strike the balance from the potentially available jurors, understanding that achieving a perfect jury is unrealistic, and an average jury panel may be preferable to one that is below average. Allowing unfavorable jurors to remain always presents risk, but using up all of your challenges before the other side has exhausted its challenges provides an opportunity for the other side to further shape the panel to your disadvantage. There are occasions where you have to accept jurors you would prefer not to, if only to avoid worse jurors or to maintain preferred jurors on the panel.

In weighing whom to challenge, consider whether the person you want to excuse will likely be a leader or a follower, strong-willed or flexible, emotional or passive, demonstrative or calm. Is he or she really potentially dangerous? Will that juror take other jurors with him or her? Does he or she care? If not, what is the risk of leaving that juror? Will your preferred jurors counterbalance or overrule? It may be to one side’s advantage to keep an influential juror capable of leading and persuading the others.

You should anticipate that your opposition will excuse your preferred jurors, and you should look ahead at additional jurors in determining whether to exercise challenges for which you may have doubts. Many of the same factors will be applied by opposing counsel that you should consider in weighing which potential jurors to challenge. It is usually safe to assume that the best juror for each side will be struck by the other side, and you should plan accordingly. This includes expecting that your panel will more likely than not be made up of jurors on either side of the scale, one side not outweighing the other.

Counsel will want to excuse those jurors who are openly adverse to or critical of their case or its underlying premise. Plaintiffs will want to remove all jurors who dislike lawsuits or are reluctant to award damages. Defense counsel will want to remove liberal jurors and those who dislike big business, insurers, or financial institutions. It is the remaining jurors in the pool who create the challenge; those who provide a gut reaction or instinctual feeling of discomfort. Your concerns may have basis or may be speculative. These jurors have not taken a strong position to enable you to determine where they stand, but they may fit a stereotype or characteristic that gives you pause. Identifying the jurors who should stay or who should go may be critical to the outcome of the trial. That is why it is so important, when questioning these jurors, that you address why it is that you feel they may not favor your position or your case. These are the jurors who should be questioned the most during voir dire, not the ones more certain to be gone.

While counsel should be careful to accept jurors who appear to lean to extremes  or appear to be overly extroverted, more protective or careful, more demanding or judgmental, counsel should recognize that these jurors will benefit one side or the other and that there will also be jurors who are unreadable or unpredictable; you cannot hazard a guess as to how they will react. The prudent lawyer will avoid unknowns such as these and exercise a challenge. Depending on the number of challenges you have left and depending on the court’s procedures, you may want to see if the opposition removes the juror first. And there are also circumstances that call for not striking an unknown—for example, your panel is largely unfavorable to you, and the unpredictable juror does not match up with them and could go your way. In any event, it is important to keep the overall composition in mind and whether the panel will improve or degenerate if the parties continue to use challenges.

Things to Avoid on Voir Dire

Burden of proof. With few exceptions, one of the most unnecessary, potentially dangerous, and time-wasting uses of voir dire is to ask questions about the burden of proof. Whether you are representing a plaintiff or a defendant, you gain no traction with useful information by asking jurors their feelings on rendering a verdict based on a preponderance of the evidence, a more-likely-than-not or tip-the-scales standard. Equally unproductive is asking whether a plaintiff will be held to its burden or whether a juror understands that the defense has none. Jurors will not buy this and will expect some explanation. They will infer concealment and liability or guilt without one. And asking about it can only plant the seed of doubt in a juror’s mind about the merits of your case, and that telegraphs that you are concerned about it and may have a weakness. Not only do “burden of proof” questions fail to identify unreceptive jurors, they actually harm your case by making jurors think your case is weak.

It is unlikely that jurors at the onset of a trial (unless they are lawyers or have litigated or served on a jury before) have any ability to grasp the quantum of proof needed and the method to apply it. Asking them about it does not produce many who will not follow the court’s later instructions on the burden of proof. However, jurors can perceive such questions as an indication that counsel lacks confidence in his or her case. Why is it being emphasized and isolated from the multitude of other instructions a court may provide? And, once again, jurors do not like to be lectured or told what to do. It can be perceived as a disrespect of their common sense and their ability to make judgments and apply the facts to render a just verdict. Worse, it promotes distrust and can be seen as a lawyer’s use of legal technicalities, which many jurors come to trial with unfavorable preconceptions of.

Time can be better spent on questions about circumstantial evidence, particularly where it plays a significant role in the case. Counsel will want to identify jurors who discount the value of circumstantial evidence. Similarly, delving into juror thought processes about reasonableness versus perfection, ethical versus legal, being willful versus careless, being proactive or overinclusive versus being negligent helps identify jurors’ leanings, biases, and potential for being excused for cause.

Two exceptions to avoiding burden of proof in voir dire are (1) in criminal defense cases, where it is essential to qualify (if not condition) each juror on ignoring probabilities and adhering to the reasonable doubt standard, and (2) where a plaintiff’s case involves or touches on parallel criminal conduct. In the latter instance, a plaintiff wants to avoid jurors who are concerned about following a higher standard than required in order to render a civil verdict only because a crime is involved.   

Ethical versus legal and other subtle distinctions. In the process of jury selection, it is often necessary to identify jurors who draw too fine a line. Numerous examples can be found in a variety of cases where questions of what may be legal are distinct from what is ethical. This can often be critical to the decision-making process, where jurors may ignore the law (or the court’s instructions) to impose different belief systems and values, depending on their sense of right and wrong, fairness or unfairness, acceptable or unacceptable social behavior, and thereby affect the outcome of a trial.

Was the conduct actually tortious or in violation of the law, or was it compliant but morally wrong? In the context of negligence cases, will the human condition of imperfection excuse an otherwise actionable claim? Will a juror be reluctant to find liability because “it happens to everyone”? Was the business conduct unethical just because it was outrageous, even if the law permits it? Even if there is no actual trademark or patent infringement, was it unfair competition in making misleading product claims? Does it matter that a manufacturer portrays particular sensitivity to safety or, on the other hand, only meets the basic standards? Do so-called “pillars of the community” avoid criminal consequences because they were charitable? Jury selection should include exploring these distinctions and the perceptions of prospective jurors. It can and should be done in a nonconfrontational manner that invites open and honest discussion. Jurors who demonstrate an understanding of the distinction between legal and ethical conduct may be more favorable to the defendants who have to justify sharp practices, unpleasant choices, injuring end users, or other conduct that can be morally deficient but otherwise within the constraints of the law.

Jurors who equate sharp business practices and unethical, unfair, or immoral behavior with illegal conduct will likely favor plaintiffs, impose liability, and award damages where the facts do not comport with their sense of what is right. To skeptical, doubtful, distrustful, suspicious, or idealistic jurors, anything unethical is by definition unlawful. It is often assumed that jurors who conflate ethics with legality tend to be receptive to plaintiffs. The more cynical the jury panel, the less a plaintiff’s lawyer should concentrate on trying to incense the jury and instead should try to persuade the jurors that the defendant did something actually and technically unlawful. The more idealistic the juror, the less defense counsel is able to explain away unfavorable conduct as technically legal, and the greater the need to demonstrate how the conduct was ethical. Ask the jurors if they believe there’s a difference between unethical and illegal. The key here is to understand the answers—what they are saying and what they mean—so that you can adjust your case presentation and themes appropriately.

Understanding and developing the jurors’ feelings are essential in selecting a jury who will more likely accept the theories and positions of your case. In addition to providing the potential for challenges for cause, it allows counsel to work toward presenting his or her case in a manner to persuade the jurors consistent with their personal judgments—either the conduct was unethical but the law was not violated, or the conduct was shockingly unfair and the jury should be incensed; either the conduct was to be expected and legal, or the conduct was unacceptable. Jurors who are easily angered by unfair or aggressive conduct will more likely ignore the fact that a written agreement permitted it or that an injury-causing automobile or other consumer good had been inspected and approved.

Special Subjects and Sensitive Areas of Inquiry

Accomplice testimony. Vulnerability lies with accomplice testimony, and caution is warranted so that jurors do not discredit your case. Whether this type of witness is going to testify in a criminal case for the prosecution or in a civil action, the accomplice is usually disreputable and undesirable and as despicable as the wrongdoer; yet, counsel must sell the accomplice’s veracity to the jury and therefore should address this as a subject in voir dire. While the first impulse is to recite the accomplice’s good qualities and defend the accomplice’s position to the jury, the testimony of an accomplice is inherently weak. An accomplice has much to gain and little to lose. An accomplice is used only when necessary.

Counsel must screen jurors who may prejudge and, in doing so, diminish the impact of the accomplice’s lack of virtue before opposing counsel has the opportunity to do so during the jury selection process or later upon cross-examining the accomplice. In voir dire (and later in opening and direct examination of the accomplice), tell the jury who the accomplice is and what his or her motives are. Don’t apologize, make excuses, or try to make a saint out of a sinner. Candidly tell the jury if the accomplice is bad or disreputable. Ask the jurors whether they understand that their function is not to judge a witness’s morality, way of life, or virtues, but to determine whether the witness is now telling the truth. This can diminish the impact of a counter-strategy during voir dire and certainly during cross-examination. The jury will not be shocked by information elicited by the opposition concerning the unworthiness of such a witness. In an effort to obtain a commitment from the jury to listen to, rather than reject out of hand, an accomplice’s testimony, prosecutors have been known to tell the jury, “I wish I could present to you bishops, rabbis, and bankers as witnesses in this case, but, unfortunately, those good people are seldom witnesses or privy to the planning or the commission of crime.” Even when counsel in a civil action is faced with having to call collaborators, informers, cronies, partners, co-conspirators, or racketeers, obtaining a similar commitment from jurors is possible:

I don’t ask for you to approve of him, his behavior, his style of living, or his morality. I tell you now you are not going to like him. But this is not a popularity contest. You’re not being asked to determine your affection for the accomplice. You are here to determine not whether he is a good man but whether he is here telling you the truth about this matter and nothing more.

One-witness cases. One-witness identification cases are inherently weak. These weaknesses should be brought to the attention of the jurors during voir dire in order to qualify the jurors and determine their views. Counsel is well advised to obtain a partial commitment from prospective jurors that the testimony of one witness is enough on which to base a verdict.

Prior inconsistent statements. During the course of voir dire, question the prospective jurors concerning their opinions of prior inconsistent statements, a weakness in many cases. Let your jurors know they exist, and get a commitment from them that merely because inconsistencies exist, their conclusion is not to automatically brand the witness a liar. During the course of your questions, let the jurors know that if a witness wished to lie, it would be easy enough to make his or her trial testimony consistent with his or her prior statements.

Police testimony. Many people are partisan concerning law enforcement. People are either for or against police. Try to determine the opinions of the prospective jurors concerning law enforcement authorities, if any are involved in the case. Questions about police officers’ testimony could suggest a lack of motive to falsely testify because of the absence of bias. (“What motive would this police officer have to lie, regardless of what the verdict will be? Tomorrow this officer will go back to the streets to protect property and lives. Will your verdict make him bigger? Better? Richer? Wiser?”)

Admissions or similar statements to investigating authorities are often incomplete. Admissions are not necessarily outright confessions. Opposing counsel will use such shortcomings in an attempt to discredit the witness. This can be blunted during voir dire by obtaining acknowledgments from jurors that if a witness (such as a police officer) wanted to testify falsely, he or she could do so merely by amplifying and supplying the missing elements that would have made the admission a complete confession.

The most compelling evidence should be left for the jury to discover for itself, from the witnesses’ own words. Voir dire and opening statement should lead jurors to expect little in a strong case so that the impact of the case’s strength creates a greater impression, once it is presented.

Conclusion

The following quotation offers a good analogy to trial preparation and jury selection:

Every morning in Africa, a gazelle wakes up. It knows it must run faster than the fastest lion or it will be killed. Every morning a lion wakes up. It knows it must outrun the slowest gazelle or it will starve to death. It doesn’t matter whether you are a lion or a gazelle: when the sun comes up, you’d better be running.

(There is conflicting information on the source of this quote. Wikipedia attributes it to Abe Gubegna, 1974. The Quote Investigator attributes it to Dan Montano, The Stock Exchange: Deregulation and New Technology, Oyez International Business Communications, London Conference of Stockbrokers, June 5, 1985; Economist, Special added section: “The other dimension: Technology and the City of London: A Survey”, “Lions or gazelles?,” Economist, July 6, 1985, at 37.)

Counsel must build greater trust and reliability with the jury than his or her opposition, or counsel can lose. The opposition must convince the jury to listen to him or her, or he or she will lose. Being smarter, more clever, better prepared, having the stronger case, or exercising powers of persuasion will not ensure a favorable verdict if the jurors do not trust counsel. A lawyer must be prepared to overcome jurors’ intransigence, cynicism, and skepticism, and cannot assume that jurors are even listening. A juror must listen for counsel to be effective and must consider the evidence and argument with an open mind. As outlined in this article, counsel must therefore prepare several alternative methods to build trust and to get the jury to listen.

Steven D. Ginsburg is a partner with Litchfield Cavo LLP in Atlanta, Georgia, and practices in Florida, Georgia, and New York.


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