From the Multnomah Lawyer: Tips from the Bench – Jury “De-Selection,” Not Jury Selection
“You can’t always get what you want, but if you try some time, you might find, you get what you need.”
-The Rolling Stones
It is a misnomer to refer to the process of empaneling a jury as “jury selection;” it should really be called “jury de-selection.” The parties aren’t picking who they want on the jury, they simply have an opportunity to remove jurors who might create a problem for them. The best way to determine who might be a bad juror for your side is to have the prospective jurors tell you. To get them to share their biases, it is important to make it comfortable for the prospective jurors to provide the negative information, which can be done by making their feelings seem reasonable and steering them towards saying things that are hostile to your side. Most lawyers, however, reflexively shy away from these methods.
Your case is almost certainly going to have at least one systemic problem that may be of concern to at least some jurors. For example, on the civil side there may be some prospective jurors who think there are too many frivolous lawsuits in which too much money is being sought, or some who might think corporations are evil and always put profits over people. Rather than hide your head in the sand about these issues, it’s best to confront them head on and try to get the panel talking about their feelings on these topics. It may seem counterintuitive to bring up in voir dire feelings that might be antithetical to what you are going to advance during trial, but it is better to learn about the harmful feelings at the outset of the case while you can get rid of the jurors who hold those views instead of having those beliefs come up for the first time during deliberations when you no longer have control.
As jury consultant Harry Plotkin writes in his excellent July 2017 Jury Tip, Good Voir Dire Should Feel Uncomfortable: “good voir dire questions encourage bad jurors to say awful things about your case. Bad voir dire questions discourage bad answers” (www.yournextjury.com/jurytips). Mr. Plotkin stresses the need to ask questions in a way that gives prospective jurors the permission and safety to be brutally honest in voir dire, even though they may be biased against your client’s position: “If your question makes the juror feel stupid for admitting it, you’re discouraging honest answers. Instead, ask questions that make your jurors’ biases seem reasonable.” Id. For example, a plaintiff’s attorney asking for a sizeable damages award may want to ask, “who feels like too many people exaggerate their damages to ask for more than they really deserve?” Id. Or a lawyer defending a corporate client may want to ask, “who feels that corporations only care about profit and don’t care about people?” You may get some uncomfortably honest answers but at least you will have identified the jurors who are most problematic for your side.
One of the best voir dires I’ve seen was an insurance coverage case where the panel was extraordinarily hostile to insurance companies, a hostility the plaintiff ’s attorney was happy to inquire about. When it was the defense’s attorney’s turn, rather than run from those uncomfortable answers he politely and diligently dug even further into the prospective jurors’ preconceived notions and biases and encouraged them to say what they really felt about insurance companies. He didn’t argue or try to convince them they were wrong about their beliefs, he simply wanted to find out what those beliefs were. As a result, he was able to remove the worst jurors, and was also able during the evidentiary phase of trial to address and neutralize the concerns of some other jurors. He obtained a defense verdict.
To those who are concerned that negative comments made by a prospective juror during voir dire will taint the rest of the panel and bias them against your client, it is unlikely that will occur. How often have you changed your opinion when a stranger, in a public setting, made a somewhat outlandish statement? I suspect the answer is close to zero. The much greater risk is that a juror with deep-seated negative views against your client’s position might make it onto the jury because the person was not asked questions to elicit those views, or the person did not volunteer that information because the way the question was posed would make an honest answer sound stupid.
It is not easy to employ this strategy effectively; it will require significant thought and preparation to decide what type of questions will work in your particular case to elicit this type of information. It is especially difficult because usually the prospective jurors don’t realize they have biases; in fact, they will often think they simply have reasonable beliefs as opposed to a potentially disqualifying predisposition. At a minimum, you will need to ask open-ended questions, as opposed to yes/no questions, and it is often helpful to focus on how the jurors feel about certain topics. There are many nuances that you will need to figure out - too much nuance to address in this limited space - but considering that few lawyers seem to have even thought of possibly using this type of questioning in voir dire, my hope is that this strategy at least be considered.
For more reading on this topic I strongly recommend Harry Plotkin’s June 2017 jury tip mentioned previously as well as his November 2017 jury tip, Why You Should Talk Like Opposing Counsel in Voir Dire (www.yournextjury.com/jurytips). Each article is only two pages long and has great ideas and tips.
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