Voir dire is not jury “selection” – it is “unselection” of negative jurors
In today’s climate the importance of voir dire cannot be over-emphasized. Most of us know that if direct examination is the “ying,” cross-examination is the “yang.” Likewise, opening statement is the “ying” and closing argument is the “yang.” However, if voir dire is the “ying,” what is the “yang?” I submit it is “jury deliberations.” It is paramount that we get the potential jurors to deliberate in front of us without the fear of “tainting” the panel. They were tainted long before they were called to serve as a juror. Like it or not, they will say it in the jury room, so invite them to say it during the voir dire process.
- Convincing the judge to allow adequate time for the voir dire
- Use a well-conceived questionnaire. Do not be afraid to include questions suggested by your opposition. Include all case-specific questions that you anticipate to be sensitive matters, e.g., juror values and attitudes towards the tort system and lawyers, caps on damages, jury trial, religious and ethnic issues when applicable. Specific types of cases have unique issues. Examples are wrongful death, product liability and bad faith.
- Focus the judge on the need to obtain open-minded jurors. The misuse and abuse of rehabilitating a juror who candidly reveals bias and/or prejudice should be raised with the judge before the voir dire examination. Emphasize that the court is not doing justice to the system by the knee-jerk follow-up question, “Well, you can be fair, can’t you?” Why force the use of a precious peremptory challenge when obvious bias has been demonstrated?
It’s just not the same anymore
When I first began to try cases, I was told that it was important to indoctrinate the jurors and pre-condition them to the plaintiff’s point of view in the case. Like most lawyers I conducted the voir dire like I was interviewing the juror for a job in my company. Leading and closed-ended questions were the rule. If a juror responded in a negative matter, I would politely shut the juror down, gravely afraid the juror would taint the panel. I would try to ingratiate myself with the jurors and would spend too much time asking superficial questions, e.g., “Can you be fair to both sides?” etc.
About 20 years ago I began to realize that my value system, the one I was brought up with and believed in, was no longer the prevailing view in the U.S.A. Those values included that you are presumed innocent until proven guilty beyond a reasonable doubt. I believed that if you are honest and work hard, you would be rewarded and succeed. Cliches like “crime doesn’t pay,” “justice will prevail,” and “sacrificing for the common good” were part of the belief system of most Americans of my generation.
The reality of the “X” generation (“What’s in it for me?”), the governmental and corporate scandals and the Wall Street debacle with the resulting great “recession” changed the U.S.A. and thus our jury pool forever. The insurance industry and its allies, big business, etc., have made it most probable that the jury pool will contain “Tea Party” members and other egocentric jurors whose minds are made up and who do not want to be confused by the facts. I readily admit, however, that there once was a time, especially in Los Angeles and San Francisco, California when it was more likely that the jury pool would consist of its share of that vanishing breed known as “liberals.” But those days for the most part are gone.
The examination today
So the question is how does a plaintiff’s lawyer deal with a jury pool stacked and slanted towards the defense?
First, do not accept questionable-liability cases unless the damages are solid and significant. Second, if the damages are not objectively provable and substantial, do not try the case. Even clear liability will not overcome weak damages in a negligence case.
However, if you have a good liability case coupled with real and permanent injuries and damages, you can obtain a substantial jury verdict if you can weed out the egocentric, defense-minded jurors who will poison the case.
Conduct the voir dire as if you are “Donahue” – open ended questions, e.g., “Mr. Jones, how do you feel about a person who chooses to let a jury determine what is fair and reasonable compensation for the loss of his leg below the knee?” Follow up the response with “Who else feels like Mr. Jones?” “Why? Who disagrees with Mr. Jones? Why?”
“Mr. Smith, do you think jury verdicts are too high, too low, or about right?”
“Mrs. Brown, if you lost your leg because of someone else’s fault, would you hire a lawyer to represent you?” “Would you sue the wrongdoer? Would you allow a jury to determine what, if anything, you are entitled to receive from the wrongdoer?”
Always inquire of the other jurors how they feel about what was being said by a juror.
I have developed a technique to combat jurors that respond by indicating there are too many lawsuits and/or plaintiffs and their lawyers exaggerate and/or want something for nothing. I ask my “Cry Wolf” questions.
I inquire of the jury panel if they ever heard of the story of the boy who cried wolf. Virtually all of them acknowledge that they know the story. I then choose a “leader” on the panel and have that juror affirm the story as I recite a shorthand version ending with the boy’s cry of wolf when the wolf really appears, the town folks do not pay attention to his cry of wolf because of his previous false cries and the wolf eats the boy. I then ask the “leader” if he believes that many lawyers and their clients “cry wolf” at trial regarding the nature, extent and duration of the injuries and damages. The “leader” will agree that it happens, and I ask the panel if they also believe that crying wolf is something they expect to hear from a plaintiff.
At that point, I ask the “leader” if the evidence they hear in this case demonstrates that John/Mary is not falsely crying wolf but the wolf is really present, will they hold it against John/Mary or myself because some lawyers abuse the system and cry wolf when there is no wolf present. That question is repeated to a number of individual jurors and the panel as a whole.
There are usually jurors that believe in “caps” on damages. I suggest manipulating your questions so that you ask “So you’d rather trust a ‘politician’ to decide what is fair and reasonable damages than you and your fellow jurors who give up your time and sit for days in court, listen to all the evidence and follow the law that the judge will give them, is that true? Do you really believe one size fits every case?”
You don’t “pick” a jury
Remember, you do not “pick” or “choose” a jury. You merely “unselect” the jurors who you believe are the most negatively inclined towards your client. Try never to use your last peremptory challenge. Better the devil you know than the devil you don’t know.
I suggest you eliminate the strong, dominant, kingpin type of juror as well as the nitpicker-exacter type of juror. You will often find such a juror in architects, bankers, accountants and engineers.
Plaintiffs should also generally avoid nurses, military people and law-enforcement people.
Do not be afraid to mention money to a jury during the voir dire process. Even if you do not mention a specific sum, you should state that in this case, John/Mary has incurred medical bills of “x” amount and loss of earnings of “y” dollars, and is seeking damages over and above those economic damages for the significant pain, suffering and loss of enjoyment of life that he has and will continue to experience. Question the panel if they would hesitate to follow the law and include in their verdict a reasonable sum of money for pain, suffering and the loss of the enjoyment of life if the evidence justified it. Inquire if any juror starts out with any artificial limit in their head beyond which they would not go, even if the evidence and the law justified it.
Frankly, I would dispense with the entire voir dire process in any tort case if I could ask each jury just three questions. Those questions are:
- What are your religious beliefs?
- What are your political beliefs?
- What are your sexual beliefs?
I believe that today, more than ever before, voir dire is the most important part of a trial: More important than opening statement and closing argument.
I believe this because our society has become so polarized that, for the most part when you accept the jury as presently constituted, your case is all but decided. Depending on the juror’s value system, that juror will hear what they want to hear and reject what is inconsistent with their value system. Whether they do that consciously or unconsciously, the result is the same nonetheless.
Lastly, beware of the “stealth” juror. Smoking out the “stealth” juror is not always possible. A “stealth” juror will usually not reveal him/herself during the voir dire. They will intentionally say things you want to hear without causing too much concern to the defense. They want very much to be selected to serve on the jury. All I can offer is be aware “stealth” jurors exist and trust your gut if it signals you to excuse the juror. Usually your first impression is emotionally based and then your head takes over and rationalizes your decision. I would trust my gut over my head.
Stanley K. Jacobs has practiced law for more than 50 years. Having tried over 140 jury trials to verdict, he is a diplomat of ABOTA and was CAALA’s Trial Lawyer of the Year for 1985. He is a former president of the state trial bar, CAOC, and is a member of the CAALA Hall of Fame since 2006.
by the author.
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