Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Months, sometimes years, of hard work are devoted to developing a courtroom communication strategy for trial. Case themes are developed, persuasive arguments are devised and witnesses are prepped. The ultimate goal of this intense endeavor is to convince a small group of ordinary people that the arguments developed over the past months and years are persuasive ones. How, then, does an attorney constructively build a jury that will be receptive to the arguments, when in fact the process only allows a lawyer to eliminate jurors from the jury pool? Identifying juror bias is the first step toward building a winning jury. Although identifying bias is a deceptively simple process traditionally employed during voir dire on the first day of trial, it is an endeavor that should begin well before trial starts. To identify juror bias, the attorney must incorporate a nontraditional strategy to understand and expose juror prejudice. The traditional approach used to identify bias entails the use of conventional voir dire questions such as, “Can you put your views aside and be fair?” This approach, however, is too confining to identify the more widespread juror bias that may exist in the venue. Traditional voir dire relies on a simplistic legal definition of bias that is concerned only with jurors’ overt expressions of their willingness to act with impartiality and without prejudice. The legal definition does not identify the more insidious or subtle case-relevant juror attitudes and experiences that may prevent jurors from rendering a verdict in an objective manner. Nor does this definition recognize the intense social pressures that compel jurors to express socially acceptable responses in open court regardless of their true predispositions. IDENTIFYING JUROR BIAS To build a winning jury, the successful trial lawyer must first understand what kinds of bias exist in the venue as well as their prevalence. Two general types of bias are intensely held cognitions that distort a juror’s perceptions of the evidence, and intensely held verdict conclusions arrived at before hearing any evidence. Intensely held cognitions that distort a juror’s perception of the evidence are specific to the issues and evidence in the case. For example, jurors who believe that the federal government is an omniscient bureaucracy with strong lines of communication that run throughout its structure would find it difficult to entertain seriously an argument that the federal government was unaware of some of its own internal activities. If these jurors were asked the traditional questions in voir dire such as, “Can you set aside any views you have about the federal government and make your decisions based solely upon the evidence presented to you?” their response would likely be “Yes.” That answer, unfortunately, would not reveal biases important to an attorney who must defend a federal bureaucratic error that arose from a problem with communication between departments. Intensely held verdict conclusions, another form of bias, are arrived at a priori and tend to be associated with more global aspects of a case. In a criminal trial, a juror who strongly agrees that “a person charged with a crime is probably guilty” exhibits this bias. Regardless of the evidence presented during trial, this juror will have already made an assumption regarding the defendant’s guilt, and the defense will be faced with the daunting task of proving the defendant’s innocence. Similarly, a juror who is predisposed to believe that large corporations are always more interested in profits than the safety of their products would have a difficult time being fair to a corporate defendant in a products liability case, having decided well before the trial that a corporate defendant should be held liable for any alleged wrongdoing. The task before voir dire is to determine what biases will likely be encountered in the venue that are related to the case issues and the litigants. The lawyer has available both formal and informal methods for evaluating these biases. There are several informal methods that may be used to evaluate bias and they are available to most attorneys. A perusal of the media coverage about the case, for example, can provide a wealth of information. News coverage is seldom objective and may serve both to reflect the prevalent attitudes in the community and to shape them. Another informal source of information about biases may come from an attorney who has practiced in the venue for many years, understands the values that are widely shared in the venue and has successfully tried similar cases in the venue. A systematic, scientific content analysis of relevant media coverage is a formal method of identifying bias in the venue. Of course, not all trials are covered extensively by the media. This however, should not imply that there are no repercussions for the parties simply because the case itself has not been subjected to overwhelming publicity. In a trial involving an environmental group, for example, there may be no specific references to the group in the media. Environmental issues, however, may be a salient media topic. It is therefore likely that jurors would have attitudes and opinions regarding environmental issues and that those attitudes and opinions may bias jurors’ perceptions of the environmental group. A structured community attitude survey is also an extremely effective formal means of evaluating biases. This type of survey would include questions designed to probe effectively the attitudes and experiences that are related to the case issues and the parties involved, that are widely shared in the venue, that are likely to be held by those who are called for jury duty and that are expected to shape jurors’ perceptions of the parties, the issues and the evidence. USING SURVEY RESULTS The next step depends on the constraints imposed on the voir dire process. Some judges allow no voir dire questionnaires and little or no attorney-conducted oral voir dire. Where this is the norm, a community attitude survey can be extremely useful. When conducted properly, a survey can generate a wealth of information about the jury pool before voir dire begins. The sample used in a survey of this type should be demographically representative of the jury pool without actually consisting of prospective jurors. Surveys of this type are typically conducted by telephone; they sample upward of 200 to 400 subjects and are used to draw inferences about the jury pool. Examples of questions a survey could be designed to answer for the trial lawyer are: What are the attitudes toward the parties? How will jurors feel about the evidence? Who are the dangerous jurors? For example, a survey may reveal that 95 percent of the sample feels that Industry X puts profits above plant safety but at the same time has contributed enormously to the prosperity of the community and provides generous economic incentives to its workers. Given this set of preconceptions, the attorney for Industry X may decide to tailor the argument to augment the second and third beliefs and avoid futile attempts to change the first. So, although the survey in this instance has little use in voir dire, it has tremendous potential for trial strategy and decisions about how to optimally position the parties. If juror questionnaires or oral voir dire are allowed, a community attitude survey can assist counsel in designing insightful voir dire questions to reveal juror bias that would otherwise go undetected. Assume that a large insurance company was preparing to defend itself in a bad faith case. Simply asking jurors if they can keep an open mind and reserve judgment until all the evidence has been presented is unlikely to elicit anything more than lukewarm affirmative responses. On the other hand, a survey may reveal that 20 percent of the sample surveyed had filed more than five claims with an insurance company and that all of these individuals were dangerous for the attorney’s client. This question would be an appropriate one to ask on a voir dire questionnaire or orally. Having identified these potentially dangerous jurors, the lawyer could then attempt to question them further to uncover specific biases or exercise a peremptory challenge. DEFENDING AGAINST BIAS Further, knowledge of juror bias obtained before jury selection can be employed to defend the use of peremptory challenges, should such defense be required. In the event of a Batson challenge, understanding the biases that exist in the venue allows the lawyer to defend the strike based on attitudes or experiences displayed by the juror. See Batson v. Kentucky, 476 U.S. 79 (1986). Batson challenges are raised when peremptories appear to be based on a juror’s demographic characteristics, usually race. Jury research has demonstrated that demographic characteristics are only rarely correlated with verdict decisions. Underlying experiential, psychological and sociological variables are more often linked to biases. Therefore, identifying these variables will give counsel the advantage of developing specific voir dire questions for specific jurors that are likely to reveal biases regardless of whether the juror is a member of a protected group. Unfortunately, there may be times when the number of strikes counsel can exercise will not eliminate from the jury panel every juror whose biases will hinder his ability to hear the arguments that are made by counsel. By identifying juror biases that exist in the venue, however, counsel has an advantage in dealing with those jurors. Consider a discrimination dispute, in which the plaintiff alleges that he was passed over for promotions because he is black. Assume also that pretrial survey research indicated that 75 percent of jurors in the venue believed institutionalized forms of racial discrimination are prevalent in corporate America. Prepared with this knowledge, defense counsel, having an obligation to eliminate this bias, could develop strategies for addressing it during voir dire, thereby laying the foundations for the case before opening statements. Counsel could, for example, construct voir dire questions that require jurors to assume the role of an employer dealing with an employee who has been, as the evidence might show with regard to the actual plaintiff, a consistent underperformer. One question counsel could pose might read as follows: “If someone were working for you, taking the money you pay him for service, and did such a poor job that you had to spend all your time correcting his mistakes, would you promote him to a position that required him to accept additional responsibilities?” Such questions remove the bias-inducing factor of race from the equation and force jurors to consider the situation from an entirely different perspective. While such tactics would not eliminate the existing biases, they could temporarily circumvent the hot-button issues that prevent some jurors from objectively evaluating the evidence and permit counsel to prime jurors with a commonsense argument in support of the defendant’s position. The sophistication or eloquence of the arguments to be presented during trial will have no bearing on the jury’s final verdict decision unless jury members are capable of meaningfully considering those arguments. Identifying the biases that may constrain jurors’ ability to consider the evidence, therefore, is always the first step in building a winning jury. Successful identification of juror bias requires understanding the types of bias that exist and the unconventional strategies that may be used to reveal them. Once biases have been identified, this knowledge can also be of assistance in the development of trial strategy and tactics. The information may direct counsel to the most appropriate avenues of inquiry during voir dire, making the process more effective and more efficient; it may guide counsel in exercising peremptory challenges and defending them if the need arises; and it may be used to develop methods for diffusing the effects of bias that cannot be completely eliminated from the jury panel during voir dire. Donald E. Vinson, who holds a Ph.D. in marketing and consumer behavior, is chairman of Vinson & Dimitrius, a jury research and trial consulting firm headquartered in Los Angeles.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.