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Published: November 19, 2009
written by Jason J. Knutson
“A jury consists of twelve persons chosen to decide who has the better lawyer.” - Robert Frost (1874-1963)
How to Prepare for Selecting the Best Jury for Your Client
Preparing for jury selection necessarily requires that you prepare your case. Before you can determine what kind of juror will be best for your client, you need to know what your case is about and how it will be perceived by potential jurors. The easiest way to start this process is to identify the theme of your case. Are there certain experiences that jurors may have that will help or hurt them in understanding and appreciating your theme? What are the major issues of your case? Has there been any publicity? Who will be testifying in your case? What are the strengths and weaknesses of your case?
Next, think about your client. What kind of impression do you expect your client to make? Is your client likeable or will s/he polarize the jury? Does s/he have experiences that will be important to the jury? Does s/he have traits or characteristics that will remind the jury of someone else?
Naturally, where the case is being tried will go a long way in predicting the jury’s reaction. Even in a fairly homogeneous state like Wisconsin, jury characteristics vary widely from county to county. Venue must always be a paramount consideration in thinking about what kind of jurors will be best for your client. Venue will also play a part in advising your client how to dress and conduct herself during the trial.
Preparation for jury selection also requires a familiarity with the local practice. If you have not tried a case before this judge, talk to the clerk or another attorney in the area to ascertain local practice. You will need to know if the judge conducts the bulk of voir dire or if the attorneys will be expected to ask the questions. You will also want to know if the judge allows jury questionnaires and if there are any unusual rules regarding the number or order of strikes. Talking to a local attorney about the local practice will give you additional insight into what is important to the local jury pool and anything noteworthy that is happening in the community (e.g. a similar case in the newspaper, an important recent verdict).
Finally, find out if the parties are allowed to obtain a copy of the jury pool before voir dire begins. Even if you are only given a list of potential jurors the Friday before trial, you will still have time to run the jurors names through CCAP, Google, MySpace and Facebook. You may uncover that a potential juror has strong feelings about one of the key issues in your case or is involved in litigation. You may even be able to develop a strategy for a specific juror so that you can bring out key information through that juror during voir dire, or isolate that juror so the information you know would be damaging is never aired to infect the rest of the panel.
How to Make a Credible and Meaningful Connection with Prospective Jurors
The two most simple and profound ways to connect with jurors is to use their names (not jury box seat position) and to maintain eye contact. Keeping eye contact with a juror will also force you to stop taking notes so that you can listen and develop follow up questions.
The court has broad discretion as to the number and form of voir dire questions. Hammill v. State, 89 Wis. 2d 404 (1979). That freedom should not be abused by a lawyer during voir dire. Making a meaningful connection with the jury requires that you treat each member of the panel as an individual. Do not be repetitious and ask the same questions the judge or opposing counsel asked. Do show interest in the jurors’ answer and be respectful, not judgmental.
How to Uncover Attitudes, Biases and Values That May Impact Your Case
It is no secret that some jurors blame trial lawyers for litigation, insurance costs, property taxes and perhaps most importantly, having to miss work to sit on a jury. Some jurors will have other more insidious biases. To uncover these attitudes, you will have to ask difficult questions. Do not be afraid to confront difficult topics, like “tort reform” directly:
“How many of you think there are too many lawsuits?”
“Mr. Burke, you indicated you do. What in your experience has led you to that conclusion?”
A juror’s word choice can also give important signals amount the conviction a juror has in what she is saying. For instance, the response “I believe that’s true” is very different from “I guess that’s true”. This example is especially relevant when one of the missions in voir dire is to discern which jurors are potential leaders and which are followers.
The words jurors use to answer your questions may reveal some bias, but the words only tell part of the story. A juror’s body movement tells the rest. Some typical signals that a juror is “emotionally conservative” or simply not buying what you are selling include lack of eye contact, forced facial expressions, folded arms, clenched hands, shrugging, excessive blinking and tense laughter.
You should also consider the juror’s appearance. It is traditionally believed that a more conservative juror will be a pro-defense juror in a civil case. Many attorneys believe a juror’s shoes are a good indicator of personality. Using this theory, female defense jurors will wear closed toed shoes instead of heels and closed backed shoes instead of sandals. Likewise, a male defense juror will wear traditional loafers in a conservative style and color.
Like shoes, clothing can offer some clues to a juror’s characteristics. Defense jurors will tend to wear subdued colors and neat, clean clothes. Some jurors see jury duty as an opportunity to wear comfortable clothes, and others will treat the event as very formal.
Finally, pay attention to any inadvertent clues a juror gives through wardrobe and appearance. Many t-shirts will have logos, symbols, or phrases written on them. Consider how much jewelry the juror wears. Other jurors may wear lapel pins, or have other insignia on their clothes. Appearance can often convey important information about a juror’s experiences and decision-making.
Voir Dire and the Art of Asking the Right Questions
Simply put, the “right” questions at voir dire are the ones that benefit your client. One way to ask those questions is to try and load them with key phrases or buzz words you will be using throughout the trial. If a theme in your case is “carelessness,” then that word should appear periodically during your voir dire questioning. If you anticipate opposing counsel framing the case as “unavoidable,” then give the jury some examples of “unavoidable” situations. This will enable the jury to recall your conversation during voir dire when opposing counsel starts to establish her theme.
The right questions also require that you spend some time educating the jury. In a typical civil case, you will want to make sure the jury understands the preponderance standard and the order of presentation. Giving the jury these basic bits of knowledge helps you build a positive relationship with the jury when what you told them during voir dire materializes throughout the course of the trial.
Questions to Ask the Jury
Obviously, voir dire questions are keenly dependant of the facts of each case. That being said, the basic voir dire outline covers nine main areas: introduction, knowledge of any participants, background experiences, trial publicity, content questions, opinions and beliefs, legal opinions and beliefs, behavior issues and closing issues. [1]
These basic groups of questions can help uncover whether a potential juror is more likely to relate to one party. It may also establish whether a potential juror has a similar background as a party, or they share similar reference groups. For instance, jurors who ski are less likely to award money to someone injured on a ski hill – even though they might be in a better position to know how a ski run should be made safe. [2]
How to Get Jurors Talking
To learn the most about a potential juror, you need to engage the juror in conversation. All lawyers know the easiest approach to get information is to ask open-ended questions. Additionally, asking follow up questions gives the juror an opportunity to supplement an answer or present a new avenue of inquiry worth investigating.
Each juror should be asked a series of questions, and given many opportunities to answer. Some jurors will not want to interrupt another juror, so it is a good idea to invite comments on a topic area one last time before moving on.
Once a juror is comfortable talking, you should only interrupt a response if necessary to stop damaging information from infecting the rest of the pool. Finally, give sincere positive reinforcement to the juror for answering your questions. This will resonate with other jurors who are apprehensive about talking during voir dire.
The Importance of Active Listening During Voir Dire
Active listening shows the jury you respect what they are saying, and you are interested in what they have to say. Active listening requires that you:
- Look at the juror and avoid any other distractions (i.e. notetaking).
- Listen to the juror’s words and consider the emotion behind them.
- Show a sincere interest in what is being talked about.
- Restate what the juror said.
- Ask clarification questions occasionally.
- Be aware of your own feelings, opinions and biases.
- Acknowledge what the juror said.
For instance, imagine a juror is asked about anyone she knows who has been involved in a lawsuit. She goes on to tell the story of her sister who was injured in a car accident, but was not diagnosed with any injuries for months after the accident. Here the juror is trying to express her frustration at the delayed diagnosis. This provides an opportunity for the questioner to comment, “That delay must have been frustrating.”
Active listening by its nature requires the questioner to be empathic and supportive – two important tools for connecting with the jury. This will not only have a positive effect on the individual juror answering questions, but will also soften the reluctant juror who is observing voir dire.
Finally, active listening will quiet any underlying stereotypes inherent in the listener. By focusing on what the juror is saying, the attorney will learn more about his or her experiences and how s/he reacted to them – two of the best predictors of a potential juror’s reaction to the case.
Challenges for Cause
A juror that cannot fairly deliberate, or has knowledge of the facts of the case or the parties may be struck for cause. Occasionally a juror will acknowledge a bias and be rehabilitated by the judge or opposing counsel. If you believe the juror still merits being struck for cause, it is important to ask for the strike in order to preserve the record.
Normally, forms of bias that merit a strike for cause include: a blood, marital or adoptive relationship to a party or an attorney; a financial interest in the case, inability to set aside bias, knowledge of the facts of the case, or bias against a union, club or organization involved in the case. Gatzow v. Buening, 106 Wis. 1 (1900). Generally it is not permissible to ask jurors about politics or religion unless those issues are bound up in the case.
Similar employment to one of the parties is not grounds to strike for cause. Likewise, it may be good practice to excuse a juror with the same insurance company as the defendant for cause, but it is not an erroneous exercise of discretion for a court not to do so. Good v. Farmers Mut. Ins. Co., 265 Wis. 596 (1954).
There is no limitation on the number of challenges for cause a party may make. State v. Mendoza, 227 Wis. 2d 838 (1999), but if an attorney does not question a juror to uncover bias, the argument that the juror should have been struck for cause is waived.
Limitation on the Use of Peremptory Challenges
Wisconsin Statute §805.08(3) provides:
Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk, by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under sub. (2).
In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) the United State Supreme Court broadened the Batson rule, which forbids peremptory challenges of jurors based on race to also include gender. A juror cannot be struck based on race, creed, sex or national origin. State v. King, 215 Wis. 2d 295 (1997).
There will be times when an attorney perceives a juror would be harmful to his case based on voir dire answers and the juror just happens to be the only member of a protected class in the jury pool. As a result, if an attorney strikes the only representative of one of these classes from the jury pool, s/he must be prepared to explain a non-Batson basis.
Tools and Techniques That Can Help You Select the Right Jury
A key technique to selecting the right jury is to respect the time of all the jurors empanelled for a case. Even though jurors would generally prefer not to be called for duty at all, once in the box they take their job seriously and want to make good decisions. The best way to show you and your client’s appreciation for their service and sacrifice is to be brief, respectful and sincere.
One method to achieve that goal is to demonstrate your respect of the proceeding and the court staff. Being reprimanded by the judge during voir dire will hamstring your good efforts during questioning. Therefore, to avoid forcing the judge to limit your questioning, do not argue with a juror, do not seek an improper commitment, mislead, misinform, confuse, or “joke around” with the jury.
Using Jury Surveys and Questionnaires to Improve Your Success
Jury questionnaires have several benefits. They can save time and elicit information that might not otherwise come to light. Potential jurors may feel more comfortable writing something out than saying it in front of a group of strangers with a court reporter taking it all down. The use of questionnaires also limits the risk of a juror saying something during voir dire that could infect the entire panel.
If you believe a jury questionnaire would be a benefit in your case, ask the judge well in advance whether it is acceptable, and have draft questions ready in the weeks before trial so that the details can be worked out with opposing counsel.
Finally, be sure to set aside time to thoughtfully review the answers submitted by the jurors so the information you receive is made useful during any supplemental voir dire.
[1] Mastering Voir Dire and Jury Selection, 2d ed., Jeffrey Frederick, 2005.
[2] Id.
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