Practical Tips For Jury Selection
Read more about some practical tips for jury selection or Voir Dire from Louis J. DeVoto.
Practical Tips For Jury Selection
Institute For Continuing Legal Education-N.J.
Voorhees, New Jersey
March 20, 2010
Louis J. DeVoto
ROSSETTI & DEVOTO, P.C.
20 Brace Road, Suite 115
Cherry Hill, New Jersey 08053
I Why Voir Dire is so important
Despite the importance in selecting fair and unbiased jurors, it is perhaps the most overlooked part of a jury trial. The courts have treated the process as an inconvenience. Or, expert consultants often agree to disagree on the most effective way to select a jury. And, lawyers are guilty of paying far too little attention to the process. What the experts do agree on is that the jury make-up is probably more predictive of the outcome then any other part of a trial. Advertisers have known this forever. They spend countless hours making sure the right audience hears the message they convey. And, that the audience is receptive to the message.
So why do lawyers overlook this critical stage of the trial so often? The answer lies more in our inability to fully understand the psychology behind jury selection. And, what to do with the information we obtain rather than simply failing to make the effort. After researching the topic and reading many excerpts from jury consultants, (including Harry Plotkin), I have summarized some of their best points in this paper. I have also applied many of the principles to my practice with successful results. If nothing else, utilizing a proven methodology has given me confidence and consistency in jury selection. Moreover, it has led me to be able to better predict the outcome of a trial.
II. Define your goal before you begin Voir Dire?
Let’s start with a question I debated with myself for many years. Should I spend most of voir dire looking for my most receptive jurors? Or, should I focus on finding the worst jurors so that I can strike them? Don’t questions designed to identify my most receptive jurors simply signal my best jurors to opposing counsel, causing me to lose them? On the other hand, don’t questions designed to flush out hostile jurors poison the jury pool when those jurors tell their horror stories and voice dissenting opinions? More importantly, can my voir dire questions really give jurors positive or negative impressions of my case?
According to the experts, questions designed to identify the most receptive jurors does reveal them to opposing counsel. But it depends on how obvious or how subtle your juror profiles are. And, of course how sharp (or oblivious) your opposing counsel is. While it’s usually better to ask a subtle voir dire question over a transparent one, keep a few things in mind. First, it’s impossible to know who your receptive jurors may be without trying to identify them; if you don’t ask questions that could reveal sympathy, you may end up striking your best jurors. Second, if you ask enough questions and elicit enough opinions, you will undoubtedly hear good and bad feedback from almost every juror. The key is to ask questions that are central to the major issues in your case.
Asking questions of jurors that do not address the most important aspects of your case does not provide you with insightful information. Moreover, it often leads you to selecting or striking jurors for the wrong reasons. Select jurors who align with your central issues in the case, regardless of where they may fall on other issues.
III. Focus on Juror Values, Beliefs and Attitudes (based on their Life Experiences)
When selecting a jury, search for jurors whose values and beliefs about how the world SHOULD work match the values that your case is based upon. More importantly, identify and strike jurors whose values are in conflict with yours. Especially those whose values might get in the way of being able to support every verdict option. Jurors who have concerns about awarding damages to plaintiffs that have no practical purpose or specific use are far less likely to award non-economic damages. Jurors who value personal responsibility and self-reliance tend to shift far more responsibility and blame onto plaintiffs who fail to take pro-active action in any type of case.
Before your next trial, prepare for jury selection. Do this by thinking about more than just how your jurors will view your case at the beginning. Think about the questions you will be asking your jurors to answer at the end of the trial; long after they’ve made their minds up about who and what they believe. I suspect that most of you haven’t given much thought, if any, to the psychological methods your jurors rely upon to process information and make decisions. But, the type of judgments you ask your jurors to make play a large role in determining the pool of biases they will draw from when making those judgments.
Central Case Issue
When tackling a central case issue in voir dire, one of the greatest challenges is distinguishing between the opinions that shape verdicts and those that do not. Whether you are trying a personal injury case, a commercial or employment lawsuit, or a serious criminal matter, choosing the topic is the easy part; narrowing your focus and knowing which questions are truly insightful is challenging. In any case, there are an infinite number of on-point, case-specific questions you could ask your jurors. But, most are useless (even if interesting) in understanding your jurors’ predispositions toward verdict.
In an auto accident case, should you ask your jurors about every fender-bender, or only the serious collisions? Is it more important to understand how carefully your jurors themselves drive? Or, how safely they believe that others drive? Or, how they believe that others SHOULD drive? Does it matter if they’ve been in a collision or not? And, does it matter what their definitions of safe and dangerous driving are? What if they’ve been in an accident that was far worse than the collision involved in trial? Moreover, what if they’ve been both a plaintiff AND a defendant in an auto claim before?
The truth of the matter is your jurors’ experiences are less important than you might think; what matters most are the attitudes left behind by these experiences. It is more important to understand your jurors’ attitudes. In addition to ways of viewing the world after those experiences than to learn of the experience itself.
IV. Identify 3 types of Influential Jurors
A. NAÏVE Jurors
When you ask voir dire questions about your central case issues, naïve jurors are those that seem perfectly satisfied with the environment that your case involves. Naïve jurors in medical malpractice cases are happy with doctors and their medical care. And, they have overwhelmingly positive impressions of builders and contractors in construction defect cases, for example. The hallmark of a naïve juror is that all is right with the world. This is especially in the environment your case involves.
Identifying naïve jurors is relatively easy to do; they tend to have overwhelmingly positive experiences and have no complaints to express. Naïve jurors tend to appeal to both sides as prospective jurors. This is because they come across as friendly, happy people who are easy to please and more agreeable than opinionated. As with any type of juror, however, naïve jurors can only be predisposed to favor one side. So, beware of being seduced by their positive demeanor.
In personal injury cases, your “naïve” jurors are generally carefree people that have never been hurt. Moreover, they don’t worry about dangerous situations, and take few precautionary steps to protect themselves. On the other hand, in business cases, your “naïve” jurors are those that believe the business world is mostly fair. And, that corporations are usually honest. Yet, in employment cases, your “naïve” jurors are those whose employment experiences are overwhelmingly positive. Furthermore, they are those who are satisfied, trusting, and loyal to their employers.
As such, naïve jurors are in most cases predisposed to favor the defense. Plaintiff attorneys often talk themselves into keeping naïve jurors; they reason that, since this juror is accustomed to a fair employer, they will react angrily when they realize this defendant is unlike any boss they’ve seen before. In reality, naïve jurors have difficult relating to the plaintiff’s version of the world; in which employers are discriminatory, doctors make mistakes, and corporations lie and cheat. These jurors feel so much good will toward the employers, doctors, or corporations they know that they impose these positive impressions onto the defendant. And, they assume that the defendant is equally trustworthy. Changing the way a juror views the world is incredibly difficult even with slam-dunk evidence. So, it is wiser to strike unsympathetic jurors than to try to rehabilitate them.
B. IDEALISTIC Jurors
When you ask voir dire questions about your central case issues, idealistic jurors are those who are upset at perceived problems in the world and complain loudly about them. For example, idealistic jurors in construction defect cases not only admit that home builders may do shoddy work, they also become angry when mistakes are made. The hallmark of an idealistic juror is becoming upset when they perceive something being wrong in the central environment of your case. Identifying idealistic jurors is best done by probing for potentially negative experiences. Or, for approaches to situations that reveal distrust or second-guessing. When a juror admits to seeking a second medical opinion or disagreeing with a doctor’s treatment plan, you should realize that this juror will be receptive to the idea that doctors may make mistakes.
Although an angry juror with bitter feelings from a negative experience is obviously often pro-plaintiff, idealistic jurors who take precautionary measures and who acknowledge the possibility of negligence tend to appeal to both sides. This is because they seem intelligent and reasonable and often admit to judging negligence on a case-by-case basis. As with any type of juror, however, idealistic jurors can only be predisposed to favor one side. So, beware of being seduced by their ability to see both sides of a case.
Idealistic jurors view the world as flawed and unfair and are unhappy about it. Negative personal experiences may shape their views. But, they may also have developed negative impressions of the world without any personal experience. Take, for example, angry “tort reform” jurors; most have never seen a frivolous lawsuit firsthand. But, media coverage of lawsuits and the McDonalds coffee burn case in particular outrage them all.
With or without personal experiences involving your central case issue, idealistic jurors are those who complain about the world. They wish it were different, and are prone to bitterness and outrage. In auto accident cases, idealistic jurors firmly believe that they always drive safely and carefully, but that others don’t. However, in business cases, idealistic jurors view the business world as cutthroat. In addition to it being dishonest and greedy. And, any and every breach of business ethics upset them. Although, in employment cases, idealistic jurors are those who have bitter feelings and distrust of employers. Moreover, they are acutely sensitive to discrimination, employee rights, and fairness in the workplace.
Defense attorneys may appreciate it when idealistic jurors promise to be fair. But, in reality, the natural distrust that idealistic jurors cannot shake opens the door for these jurors to scrutinize and second-guess the defendant in any case. In every case, idealistic jurors have a chip on their shoulder; it tends to bode well for plaintiffs in most cases. From the first moment these jurors hear plaintiff counsel describe outrageous conduct by a defendant, this version of reality matches what idealistic jurors already suspect; that the world is filled with wrongdoing—and makes these jurors outraged.
The worst way to persuade an idealistic juror is to defend wrongdoing or to provide excuses. If these jurors could accept wrongdoing, they would be cynical jurors instead of idealistic. This is the type of juror I will discuss next. Instead, the best way to persuade idealistic jurors is to play to their natural sense of dissatisfaction and distrust. For plaintiff’s counsel, this means not only highlighting the defendant’s actions that caused your client injury but also any other breaches of honesty, trust, fairness and decency that may incite jurors predisposed to outrage. For defense counsel, persuading idealistic jurors is much more challenging. Making excuses, even legitimate ones, only tend to inflame idealistic jurors.
Disputing acts of wrongdoing with evidence can even be ineffective. This is because not only have most idealistic jurors decided to distrust you after opening statements, but jurors also tend to disregard evidence unless it comes from a trusted, perfectly objected source. Even the most valid, conclusive evidence, if it comes from the defendant, idealistic jurors perceive it as tainted and suspectable. The defense’s best method of pacifying angry, idealistic jurors is to either provide corroborating evidence of innocence from an objective third-party or to play to that juror’s distrust by attacking the honesty and motives of the plaintiff.
Keep in mind that few jurors are idealistic in every situation; a juror who may be idealistic in a medical malpractice lawsuit may be cynical or even naive in other types of cases. What matters is each juror’s attitude and approach to the specific environment that your case involves.
C. CYNICAL Jurors
Although cynical jurors view the world as flawed and unfair, they are rarely outraged. Unlike idealistic jurors, cynical jurors don’t necessarily care about what SHOULD be. Perhaps they’ve given up hope that the world can be changed for the better, but in any case, cynical jurors assume that everyone is perfectly aware and accepting of the flaws in society. Even more importantly, cynical jurors expect others—plaintiffs and defendants included—to approach situations with their eyes wide open, and are terribly critical of naivety. The surest way to identify cynical jurors is to notice those jurors who have negative impressions of your central case issues but minimize complaints or offer excuses.
Way of Thinking
For example, cynical jurors in eminent domain cases might believe that governmental agencies take private land for inappropriate reasons, but aren’t outraged by it, accept it as a reality, or offer some excuse like “land owners know that their parcels might be taken when they buy the land, so they have no right to complain.” One of the big excuses that cynical jurors rely on is the always-popular ‘personal responsibility’ refrain that most trial attorneys have undoubtedly heard.
In personal injury cases, cynical jurors are those who expect other drivers, construction sites, and products to be less than perfectly safe and who take steps to drive defensively and protect themselves. However, in commercial cases, cynical jurors assume that corporations and businesspeople are dishonest, greedy, and selfish to the point of being cutthroat, yet they feel no sympathy for victims of dishonest conduct because they firmly believe that both sides know and accept the me-first, trust-no-one rules of business. But, in employment cases, cynical jurors are those who expect employers to mistreat employees and follow the bottom-line, while expecting employees to understand these rules and treat their employers with just as little loyalty.
The fend-for-yourself philosophy that cynical jurors abide by tends to make them pro-defense, but not always. In most cases, the plaintiff is the party making the most excuses and leaving himself/herself open to scrutiny of ‘playing dumb,’ but in cases in which the defendant claims ignorance or naivety, cynical jurors can be adamantly pro-plaintiff. Give your case some long, honest scrutiny and decide whether your clients could be accused of making ignorant or naïve decisions, no matter how genuine their ignorance or defensible those decisions might be.
Cynical jurors have a difficult time believing that litigants, especially well-educated, experienced, or sophisticated people or big companies, could be ignorant or naïve in any situation, and they won’t believe you if you use ignorance as an excuse.
The worst way to persuade a cynical juror is to try appealing to a sense of outrage; cynical jurors are far too jaded and resigned to living in an unfair world to get worked up over issues of honesty and principle. Instead, cynical jurors are only likely to become upset at bad excuses. Highlight the supposed ignorance or naivety claimed by the opposing litigant and emphasize how experienced and sophisticated the opposing litigant actually is. The plaintiff wasn’t born yesterday, the cynical juror often says. He’s just playing dumb, the cynical juror thinks when a highly-educated plaintiff claims ignorance of a clause in a contract.
With all those executives, someone had to know it was wrong, says the cynical juror when a big corporation is sued for supposedly unknowingly violating a law or a policy. Cynical jurors scoff when a litigant (in their eyes) feigns shock and outrage at wrongdoing; in their view of the world, wrongdoing and self-centered behavior is an acknowledged part of any relationship.
V. Additional Voir Dire and Lawyer Conducted Follow-up
Because New Jersey has standard voir dire questions, the only way to ask central case issue questions to prospective jurors is with the additional voir dire questions that you are allowed to submit to the judges prior to trial. Make the effort to ask additional questions and make the questions relevant to your central issues in the case. In all but very few cases, I have also been afforded the opportunity to ask direct follow-up voir dire questions of jurors. In some counties, judges will conduct the follow-up. Take advantage of every opportunity to talk with prospective jurors if allowed. And, request follow-up when necessary to determine juror attitudes and values on the central issues in the case. In my experience, this part of voir dire is your only chance to decipher attitudes and values based on the jurors’ life experiences.
Remember, at this stage of jury selection, you have only gotten responses to standard questions that probably haven’t identified the jurors as cynical, idealistic or naïve. This is your chance to interact with the jurors and build a rapport. However, be respectful with questioning and don’t bully the potential juror toward your point of view. You are trying to learn about the juror—you are not going to change their values and attitudes.
The key to doing this well is preparation. Before you even arrive at jury selection, prepare a list of case specific questions and potential follow-up based on the anticipated responses. If you prepare ahead of time, you will be able to quickly formulate questions in open court or at side bar. The judge will also be more receptive to requests of case specific jury voir dire and follow-up voir dire because you will look like you know what you looking for and not trying to gain an unfair edge through voir dire.
VI. Assess Demeanor and Appearance
Regardless of how well you conduct voir dire, there will always be some that you can’t figure out or have no basis to know whether they are going to be good or bad jurors in your case. In those situations, I utilize demeanor and appearance as a method to determine my best juror. Demeanor and appearance can be somewhat predictive of juror attitudes and values. Research has shown that certain appearance types can be indicative of jurors being receptive to one side or the other. Here is the general consensus on how to quickly assess jurors based on appearance and demeanor. Consider some examples:
- Impeccably dressed vs. Casual dress
- Short hair vs. long flowing hair
- Big earings vs. diamond studs
- Big pocketbooks vs. little hand bags
- Loafers vs. tightly aced dress shoes
- Slight build vs. Husky build
- Open collar vs. Button up appearance
- Round and jovial vs. fit and in shape
- Clenched fists vs. open hands
VII. 10 Point Voir Dire Checklist
1. Focus your voir dire and your case on the BIG picture and why your case makes sense instead of distracting jurors with minutiae and confusing details about your case. Ask case-specific questions that address the central issues in your case (those that will be need to be answered on the verdict sheet). If the case is a low-impact auto case, ask voir dire questions designed to find out views on that type of case.
For example, This case involves a crash in which there was relatively little damage to the cars. Do you have any strong feelings about whether someone could be injured in a crash where there was not a lot of damage to the cars? Do you think people will generally be more hurt if there is more damage, even if there was testimony by experts that this may not be true? If your case involves multiple accidents, pre-existing injuries, failure to log something in a medical chart etc., bring out these issues and discuss it.
2. Know the difference between Naïve, Idealistic and Cynical jurors and decide ahead of time what jurors you need in your case.
3. Learn all you can about a jurors life experiences and then determine what ATTITUDES and VALUES they have formed from those experiences.
4. Observe jurors for appearance and demeanor, and when undecided, use this as a method to select and excuse jurors that fit your desired goals.
5. Strike your worst jurors but while going after your best jurors. Forget whether or not you use your challenges. A lousy jury will result in a bad outcome. Exercise your challenges until you get a jury that will give you the verdict you need. Worried about looking like bad for repetitive strikes, forget about it—Jurors wont remember by the time the case ends and don’t care. A recent story confirms that for a lawyer that said “jury is satisfactory” at every challenge. Jurors after finding against his client stated that it wasn’t a factor in their decision but they interpreted the continued “passes” as a lack of caring.
6. Always conduct follow-up voir dire whenever you can do so. Ask open ended questions, not conclusions.
7. Request additional voir dire if there are multiple parties on the opposing side with common interests.
8. Make sure your foreperson (seat 1) is a good juror for you. (Never keep a bad foreperson).
9. Thank the jury in your opening after they have been selected and tell them they were selected because you felt their experiences would make them the fairest jurors to hear the case.
10. Remember that the jury is ALWAYS watching you and how you treat the people around you, including your client. Be courteous to the court staff, your client and opposing counsel.