1. The definition of a "bad" juror is contingent upon your strategic approach.
When it comes to jury selection, it's often easier to adjust your strategy than to try and change the composition of the jury itself. Let's say you're in Delaware, where DuPont is headquartered, and you plan to argue in court that your product is superior to DuPont's. In this situation, you might initially consider striking potential jurors with ties to DuPont. However, the challenge arises when you realize that there are a significant number of these individuals who could otherwise be suitable for your case. Instead of needlessly attacking DuPont, it's better to reframe your argument in a more neutral manner. For example, you can emphasize that both your client and DuPont produce similar, high-quality products.
2. Your purpose is not to build friendships, but to identify potential adversaries.
In the realm of law firms, it is not uncommon to come across a collection of favored stock questions that, unfortunately, miss the mark entirely. These questions inadvertently expose the preferences of the jurors, rather than providing valuable insights. For instance, when representing an employer in a wrongful termination case, it is vital to refrain from asking if someone has ever fired another person. Instead, focus on inquiring if they have ever experienced being terminated themselves.
3. Building alliances is the most effective strategy to reveal your opponent's target.
If you detect that you have a promising juror, refrain from further conversation. Avoid extracting favorable details too hastily, as it may inadvertently reveal your strategy to your opponent. Instead, focus on building a rapport with the juror and establishing a connection. Engage in meaningful conversation that allows you to understand their perspective and values without giving away your own strategy. By taking the time to establish trust and connection, you can gather valuable information about the juror's beliefs and biases without jeopardizing your case. Remember, the goal is to gather information discreetly and strategically, ensuring that your opponent remains unaware of your intentions.
4. The Art of Questioning: Mastering the Technique
When questioning a juror, it's important to go beyond simply asking if they can be fair. Instead, consider asking thought-provoking questions like:
"Can you envision any circumstances where you might struggle to be impartial in this case?"
"Is there anything about my client that could make you uncomfortable serving as a juror?"
"What important information have we neglected to ask you?"
"Is there even a slightest hint of doubt in your mind that might cloud your judgment when reaching a verdict?"
By phrasing your questions in this way, you encourage the juror to think critically and provide a more honest and insightful response.
5. Unlocking Valuable Insights: The Power of Open-Ended Questions
6. Delving into the reasons and methods behind someone's actions holds more significance than simply knowing if, what, or when they occurred.
Understanding the motivations behind someone's career shifts and their emotions surrounding those changes holds far greater significance than simply knowing their job history. Exploring the transitions they have experienced, whether in their professional or social lives, can reveal a wealth of valuable information. Are they content with their retirement? Was it a voluntary decision or forced upon them? Do they consider it the best or worst thing that has happened to them? Uncovering the reasons behind these transitions can provide invaluable insights into their perspective and mindset.
7. Facilitating the Expression of Bias: A Deeper Approach
In order to encourage people to admit their biases, it is important to create a comfortable environment. Instead of directly asking, "Does anyone here think that rich people like my client don't deserve to get richer - even if they are right?" you can create a sense of comfort by saying:
"We understand that many people feel uneasy about making decisions that involve awarding money, especially large sums, to individuals who are already wealthy. If you are one of those individuals, it's perfectly fine. Just raise your hand and let us know your thoughts (but please refrain from expressing your opinions openly in court to prevent influencing the panel)."
"If you have even the slightest hesitation in awarding my client money because you believe they may not need it, it would be greatly appreciated if you could let us know now."
8. Embrace the Element of Surprise.
Consider this scenario: your client is facing accusations of mishandling funds. You might assume that business supervisors would naturally support your client, but be prepared for a surprise. Often, individuals with relevant knowledge and experience tend to compete with your client, and their opinions hold significant weight in the eyes of other jurors who view them as experts. To avoid any unpleasant surprises after the trial, it is crucial to ask pointed questions during voir dire to gauge whether these individuals are friends or frenemies.
9. Challenging Assumptions: Breaking Stereotypes.
Consider a scenario where you are dealing with a case that involves determining whether a driver made the right decision or not. Now, imagine you come across a potential juror who is a stay-at-home mom. It may be tempting to dismiss their capability for leadership based on this role, but think again. If this individual is responsible for all the family's chauffeuring and car-pooling duties, they likely spend more time on the road than anyone else with a traditional "day job." Therefore, when questioning jurors, it is essential to ask specific questions about their backgrounds and experiences without making assumptions based on societal stereotypes.
10. Don't underestimate the willingness of judges to accept voir dire questions proposed by counsel, as many lawyers often assume.
Never underestimate the power of asking. You never know what a judge's approach might be, as it can vary from case to case. Just because they may not have allowed it in the past, doesn't mean they won't this time. Always remember to ask and find out for sure.
11. Familiarize Yourself with the Guidelines.
In the realm of jury selection, many individuals mistakenly assume they possess a comprehensive understanding of local rules. However, they often overlook a plethora of valuable resources that can provide guidance. These resources encompass various topics, such as what comprises improper rehabilitation, the impact of prior jury service on potential jurors' disqualification, affiliation with insurance companies, the ability to make a record, and more. It is imperative to thoroughly review these details and have them readily available in court for referencing when necessary. Although judges may not appreciate it, it is your right to make a record and fully exercise your rights. Prepare to be pleasantly surprised by what you may discover.
12. Familiarize yourself with the courtroom protocols beforehand, such as:
Here are some key questions to consider when preparing for jury selection:
- How many peremptory strikes will each side be granted?
- How many individuals will be included in the voir dire pool?
- What is the process for voir dire in the specific courtroom?
- How many jurors will the judge ultimately select for the jury?
- Are there any other jury trials scheduled for that week from the same pool of potential jurors?
- Will you be given a fresh group of potential jurors or ones that have already been questioned?
- Will there be alternate jurors, and if so, how many? How many additional strikes will each side receive for alternates?
- What is the judge's approach when it comes to hardship requests and excusals?
- Who will be responsible for asking the questions during voir dire?
- Will the judge allow lawyers to directly communicate with prospective jurors?
- Will attorneys have the opportunity to ask follow-up questions?
- Are there any standard questions that the judge or clerk always asks during voir dire?
- What method does the judge use for reporting strikes – blindly, alternating, or another approach?
- How does the judge handle requests for strikes for cause?
- What biases has the judge historically considered, and does the judge use White's or the Struck method? Is there a choice or preference for the attorneys?
- Will alternate jurors be designated, and if you decide to pass your turn, do you lose your strike(s)?
- Is back-striking allowed?
- Will everyone be voir dired before reporting strikes, or will it be done in rounds?
- What information, if any, does the Court provide to counsel in advance?
- How much time will the judge give counsel to review the information before reporting strikes?
- Is there Wi-Fi available in the courtroom for your team to access social media regarding potential jurors?
- Can counsel and staff bring their mobile devices to court as a backup for online searches?
It is essential to familiarize yourself with these details and be well-prepared for jury selection to maximize your chances of success in the courtroom.
13. Do not presume that jurors possess the same knowledge as the trial team.
It is common for our clients to be highly aware of positive ads run by their opponent or negative press they have received. However, it is important to recognize that jurors may not have the same level of awareness or concern about these matters. While this information may be significant to our clients, it may not hold the same weight for jurors. We must be cautious not to bring attention to information that jurors were previously unaware of, but we should still inquire if anyone has any knowledge of these matters and if it impacts their biases. Instead of directly mentioning the press or ads, a more general approach can be taken by asking if anyone has heard, seen, or read anything about the company, and then exploring their response, either privately or in writing if permitted by the judge.
14. Make sure to determine the deadline for submitting your proposed voir dire questions, whether it's during the pretrial motion or at another specified time. Give yourself ample time to review and make any necessary edits. Additionally, it's crucial to assign this task to individuals with jury-selection experience to ensure the best possible outcome.
Keep in mind that whatever you choose to reveal during jury selection, your opponent will have access to that information as well. It's natural for lawyers to desire more information, believing that it will provide an advantage. However, it's important to consider that someone may benefit more from this information than you do. Let's consider a scenario where your client is a manufacturer accused of producing a dangerous product or a chemical producer facing charges of polluting local groundwater. How many potential jurors are likely to be against you from the start? Is it 75%, 80%, or even 90%? This means that there is a possibility that 10-25% of jurors may be open to hearing your side of the story. If you choose not to ask any questions or gather any information about the jury pool, you have a 1 in 4 to 1 in 10 chance of retaining favorable jurors. However, if you do ask questions, your opponent is less likely to overlook potential biases and is more likely to strike jurors based on the information revealed. In this case, it may be more advantageous for you if your opponent strikes blindly, without knowing the potential biases of the jurors. Sometimes, ignorance can indeed be bliss.
Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting:
- 5 Questions to Ask in Voir Dire . . . Always
- 5 Voir Dire Questions to Avoid
- 10 Ways to Lose Voir Dire
- Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations.
- The Voir Dire Handbook | Free Download | A2L Consulting
- Jury Selection and Voir Dire: Don't Ask, Don't Know
- 7 Tips to Take “Dire” out of Voir Dire
- A2L Voted Best Jury Consultants by LegalTimes
- Can we work on your next case? Run a confidential conflicts check.
- [New and Free Webinar] 12 Things Every Mock Juror Ever Has Said