For the novice and veteran alike, voir dire makes lawyers more nervous than any other part of trial. The dwindling number of cases going to trial means fewer opportunities to participate in seating a jury. Many lawyers do not know how to expose a potential juror’s bias. Others are just plain afraid to talk to people.
Yet, skillful, confident jury selection can mean the difference between winning and losing. Surveys of jurors show that not only do many form lasting opinions about the case during voir dire but also that lawyers’ success rate in altering juror bias is less than 15 percent. Anyone hoping to try cases needs to learn to root out bad jurors from the panel.
By “bad jurors,” I don’t mean bad people; rather, I mean those jurors whose life experiences and beliefs are adverse to your client’s position. Don’t waste time trying to persuade bad jurors to change their minds. Instead, focus on identifying and getting them off your jury. To do this, you need to get jurors talking about their beliefs.
The first step? Make a list of beliefs you don’t want your jurors to have. If you’re defending an employer sued for wrongful termination, you probably don’t want a current or former worker who is really unhappy with his or her own employer. If you’re representing a plaintiff demanding big money, identify jurors who are apt to be stingy because they think jury awards are excessive (think of the McDonald’s hot coffee case). Defending an insurance company? Spot jurors who believe insurers unfairly deny claims.
When addressing your bad-juror topics, don’t lecture or give speeches. Ask and listen. Ask open-ended questions to the group and to individual jurors. Listen as you let the jurors do the talking. In an insurance case, for example, ask the group how many have filed insurance claims; then ask them to keep their hands up if their claims were denied. Follow up with those jurors individually by finding out who thinks his or her claim was wrongly denied and why. In a wrongful termination case, ask how many have had a negative experience with an employer. (Notice I didn’t suggest asking whether any juror has been fired. . . . More on this later.) Follow up with those who raise their hands.
How do you dig deeper into a juror’s vague response? Start by repeating his or her answer. If a juror says “some people are greedy,” ask the juror to tell you what he or she meant by “some people are greedy.” A vague response like that usually signals a bad experience. So assume that juror has had one and ask the juror to tell you about an experience he or she has had with a greedy person. Ask the group if anyone shares that juror’s view. Perhaps the juror thinks people file frivolous lawsuits for money or that insurance companies deny claims to save money or that manufacturers ignore safety mechanisms to maximize profits. Drilling down on a vague response like this is a good chance to expose a bad juror.
Throughout voir dire, your job is to make each potential juror feel safe in being truthful about his or her feelings—safe to show you that he or she will be a bad juror. Many jurors won’t admit unpopular opinions. So if you ask, “Does everyone agree that . . . ,” you will find many jurors looking around to see how the majority votes before they raise their hands. Also, avoid asking jurors whether they can be “fair and impartial,” because most won’t admit they can’t be fair.
Instead, create the impression that whatever answer they give will be reasonable by acknowledging that people fall on both sides of the spectrum. For example, to pinpoint jurors who won’t award a large verdict, you might say: “Some people think juries award too much money to injured parties. Others think juries don’t award enough.” Ask for a show of hands on each side of the issue and follow up individually. Remember to thank jurors who are honest. Praising jurors who come forward may encourage others to do the same.
Finally, some topics are too sensitive for jurors to discuss in front of strangers (e.g., being fired, sexual harassment, bankruptcy). To minimize the risk that jurors will withhold important information or punish you or your client for embarrassing them, consider submitting jury questionnaires (ask your judge) or find out whether the judge will ask certain questions. At a minimum, ask jurors to let you know whether answering your question would require them to divulge sensitive information, so you can stop and ask the judge whether he or she will permit a private voir dire. Even if the judge says no, you have shown all jurors, bad and good, that you are on their side.