At a recent Continuing Legal Education seminar we were presenting to a group of attorneys, we were discussing potential questions the attorneys might consider asking prospective jurors during voir dire. The specific question was, “Who believes there should be more regulation of workers’ rights or that there is no change needed?” Just as we were getting into our explanation about the value of this question, a hand shot up in the air. An attorney asked, “You don’t actually ask that question in voir dire do you? You have to tie that to some piece of demographic information, right?”
This is a common question we get from attorneys. Our answer is, “We do.” There are often reasons to ask questions that, at first, might not seem like an obvious voir dire question and are intentionally not tied to demographics.
There are many goals in conducting voir dire (e.g., building rapport, reinforcing your case themes), and a number of things to avoid. But your two most important objectives are to: 1) identify jurors whose attitudes do not align with your client or your case, and 2) establish the foundation for bias for using peremptory strikes and challenges for cause. In most jurisdictions, with only three strikes, this specific focus helps the attorney draft targeted questions to maximize your cause challenges and therefore more intelligently use your peremptory strikes.
With these goals in mind, let’s talk about questions you should and shouldn’t ask during voir dire.
What Questions Not to Ask: Demographics
Attorneys often want to ascertain demographic information and think this is the most reliable way to determine who you do not want on the jury. In fact, this is one thing the attorney at the CLE was asking about; “Shouldn’t you relate your question to demographic information about your juror?” In reality, demographics are not the most reliable predictors of jurors’ leanings. Relying on demographics can encourage stereotyping, which can create more erroneous jury deselection decisions.
One example of stereotyping based on demographics I hear from defense attorneys is that they don’t want any nurses on a jury regardless of the type of case. While some nurses are more traditional “helpers” or “bleeding-hearts,” there are a lot of nurses who have had to develop thick skin to deal with the trauma around them. Additionally, nurses sometimes have beliefs that help defense attorneys more than they hurt.
In one case involving a lifetime smoker, there was an oncology nurse who made the defense attorney very nervous but ended up voting against the plaintiff. When we asked her about the verdict in a post-trial interview, she said that she deals with people who get cancer through no fault of their own and it infuriated her that someone who made a decision to be a lifetime smoker would try to profit from that irresponsible choice. This is a case where having a nurse on the jury was helpful, and it goes to show that demographics alone are not a useful predictor of juror leaning.
What Questions Not to Ask: Positive Impressions about Your Themes or Your Client
Steer clear from questions in voir dire that can raise a strong cause challenge by your adversary. For example, avoid questions that provide jurors an opportunity to give answers favorable about the themes you plan to discuss in your case and about positive views they hold for your client or its products. While it can be tempting to let a juror go on about all the great things in your case, voir dire is not the time to showcase all of your ideal jurors to the other side. Doing so makes the other side’s job of choosing which jurors to strike or raising a challenge for cause very easy, so letting a juror talk about the great aspects of your case is only useful if you already know for certain that the juror is beyond rehabilitation by your side and you want to sacrifice them in order to strategically promote and reinforce your key messages.
What Questions to Ask: Attitudes & Beliefs
In voir dire, you should ask questions about jurors’ attitudes and beliefs. You want to ask about people’s views on government regulations, corporations and jury damage awards. Ask questions in such a way that the people who raise their hands are the jurors you who will ultimately disagree with your case. The question at the beginning of this blog about workers’ rights is the perfect example of how to do this. The question asked about people’s view of government regulation of workers’ rights. The response options are “more regulation,” “less regulation,” or “no change in regulation.” As a defense attorney your intuition might be to ask, “Which jurors believe there should be less regulation of workers’ rights?” However, we know from all of the research we’ve gathered on jurors that, in general, people who believe there should be less government regulation are good for the defense. So, asking the question this way would only identify our best jurors to the plaintiff. Instead, a defense attorney should ask, “Which jurors believe there should be more regulation of workers’ rights?” This will highlight the jurors who tend to favor the plaintiff. Additionally, asking the question in this manner hides your defense jurors. Jurors who don’t raise their hands are not automatically defense-leaning because they either believe there should be less regulation or believe there should be no change in the regulation. This is a good question because it leaves defense jurors hidden in a larger group.
What Questions to Ask: Life Experiences
Another useful predictor of juror leanings is life experiences. Especially revealing are any experiences that are similar to that of the plaintiff, such as personal injuries, working conditions, or even if the juror’s age approaches the plaintiff’s. Social science research has revealed that when a person’s life experiences match that of the target person, they are more likely to favor the target. We call this the similarity-leniency effect. Therefore, asking questions in voir dire to ascertain how similar a juror’s life is to the plaintiff’s (the target person) can be very helpful. This would involve questions about personal smoking habits in a tobacco case. In employment discrimination, it would involve questions about whether a juror has ever been discriminated against or even felt discriminated against. A case involving a car crash or car manufacturer would necessitate questions about driving habits, type of car driven and possibly accident history.
Using Juror Profiles in Voir Dire
Now, we know that for some attorneys asking these types of questions goes against what they have been taught about how to ask voir dire questions. We’ve come across a number of attorneys who think it’s best to ask questions where people don’t actually raise their hands. The reason we argue you should ask these more substantive questions to identify those jurors who are predisposed against your client’s case is because its ultimately more beneficial for you to deselect these jurors who will never be favorable to your case, than it is to indoctrinate these jurors during that time-limited voir dire session.
Here’s why: the questions we suggest you ask are not random. These are questions that Litigation Insights has asked hundreds of jury eligibles in cases around the country. We have an extensive database of questions and the effectiveness of each in identifying those jurors who will never “hear” your case or be favorable to your side.
When we do jury research projects, we ask extensive questions to all our participants – usually more than one hundred questions in the first questionnaire alone. We use these responses to determine which jurors are more likely to be pro-plaintiff and which jurors are more likely to be pro-defense. These juror profiles are invaluable to attorneys who know how to use them. They not only assist you in identifying what a typical plaintiff or defense juror might think, but they arm attorneys with specific questions to ask during voir dire. The answers to these questions will reveal which high-risk jurors to strike.
When used effectively, voir dire can help attorneys make the most of their jury panel and be confident in their strikes. When you aren’t sure what you should ask, give us a call and we can help with your voir dire development to determine key questions to include.
contributions from Merrie Jo Pitera, Ph.D. – CEO