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The selection and deselection of the persons who will decide a case is the single most important part of the trial. Eloquent opening statements, brilliant presentation of witnesses and powerful closing arguments will have diminished value and effect unless the trial lawyer is playing to an audience that is willing to listen and render the desired verdict. Too little thought and strategy is put into the voir dire process even in major cases. Judges and lawyers often seem to be in a hurry to get the jury selection over with so that the real case can begin. The problem is, when a lawyer does an inadequate job in the voir dire process, the case often is over before it has begun. In a major personal injury case, the respective parties’ general strategies are simple. The plaintiff wants generous, sympathetic jurors who are not reluctant to award substantial dollars in compensation. Defendants want stingy, unsympathetic, skeptical jurors who would find it extremely difficult to sign a plaintiff’s verdict, let alone a large verdict. The difficulty is selecting and deselecting the jurors who do not easily reveal these traits. One strategy that should be decided upon early is whether to use a focus group. Consideration also should be given to having a jury consultant sitting with the lawyer during voir dire. A well-run focus group wherein the case is fairly presented to a representative group of jurors will aid in voir dire and the presentation of the case. Focus group sessions including deliberations should be videotaped. Valuable information will likely be learned about what jurors believe the key issues in the case may be. Experienced trial lawyers have significantly altered their strategy based on observations of focus group deliberations. Remember, what a trial lawyer who has lived with a case for years thinks is important may be very different from what a lay person hearing the case for the first time thinks is important. There is a strong trend toward the use of jury consultants, although some very successful trial lawyers do not use them. A jury consultant can give valuable input in developing the “trial theme.” In the actual jury selection process, the jury consultant is a valuable resource for the trial attorney. It is impossible for trial counsel in selecting the jury to observe all the prospective jurors. A trained consultant can give useful insight on prospective jurors’ reactions to questions put to other jurors, the court and to the attorneys themselves. Also, too often, prospective jurors who should be excused are able to talk the lawyer into keeping them by not candidly answering questions put to them by the court and counsel. A good jury consultant will not let this happen. Two heads are often better than one in deciding whether to accept or excuse jurors. JUROR PROFILES Generally, any experienced trial lawyer knows the basic characteristics of a plaintiff’s juror or a defense juror. It is the unique facts of a case that can change expectations about particular jurors. For example, in a medical malpractice case, a defense juror who has had a very bad experience with a doctor or hospital may end up being excused by the defense. A plaintiff’s juror who hates motorcycles may not be appropriate for a plaintiff injured while riding a motorcycle. The individual facts of the case are important to take into consideration in relation to a juror’s similar life experiences. The skill of the lawyer, however, comes into play in determining whether a certain life experience of a juror that is relevant to the case will be more of a factor in that juror’s decision-making process than his or her overall personality makeup. Counsel should not let one experience in a person’s life cause her to excuse a potential juror she would ordinarily like unless she is certain that this experience is so compelling that it will likely be the major basis of that juror’s perception of the evidence and ultimate decision. Gender, race, age, profession, education and similar factors all play a role in determining a juror profile. However, the lawyer who stereotypes a juror based upon gender, race or age and ignores that individual juror’s personality and life experiences will often be disappointed with the verdict. THE ROLE OF THE JUDGE The length, manner and tone of voir dire are very dependent upon the trial judge. The more information counsel has about a prospective juror, the better. The more counsel can interact with a juror the better. Unfortunately, many judges seem to believe the backlog of cases will be relieved by limiting the length of voir dire. Some judges seem to take pride in never having taken longer than half a day to pick a jury. They simply dread the tedious process of voir dire. But the voir dire process is too important to be rushed. The trial lawyer must know the trial judge’s custom and practice for voir dire well in advance of the trial. The trial lawyer should use her skill in convincing the court that this case is worthy of detailed and thorough questioning of all prospective jurors. It is the trial lawyer’s obligation not to delay unnecessarily the process and aggravate the court. The number one pet peeve of all trial judges in voir dire is when an attorney repeats the judge’s questions to prospective jurors. Following up logically on answers given to the court’s questions, however, makes sense. When a judge witnesses firsthand a skilled trial lawyer asking pertinent questions that begin to elicit extremely important information bearing on that juror’s ability to be fair and impartial, that judge will likely give counsel the time that she needs. If the court, on the other hand, thinks an attorney is wasting time, the attorney will be cut off and placed in a bad light with the prospective jurors before the case has begun. Before the trial, the attorney should know whether the judge allows much questioning by the lawyers as well as how extensive and probing the judge’s voir dire is. There are other important questions that attorneys need to answer before voir dire: What is the system the judge uses, if the state gives the court this discretion? For example, are jurors picked in panels of four or 12 or more all at once? Is backstriking — i.e., the reopening of a panel of jurors already accepted by a party when the other party excuses a juror — allowed? If the court will not allow much in the way of attorney questioning, will he read written questions submitted to him? How hard or easy does the judge grant a challenge for cause? If the state gives discretion to the court, how many peremptory challenges is the judge likely to give counsel? Obviously, the more peremptory challenges the better. QUESTIONING POTENTIAL JURORS The trend seems to be to limit questioning of jurors by attorneys. When there is limited time to ask jurors specific information about their background and life experiences, the focus, in a personal injury case, should include general personality and decision-making characteristics. Plaintiffs look for jurors who don’t agonize over decisions. Simple questions dealing with how, for example, potential jurors purchased their last car, tells a lot about how they are as decision makers. A person who knows what kind of car he wants, goes into the dealer and does the deal without a lot of haggling is more likely to be a plaintiff’s juror than a juror who does six months of research and visits many dealers before finally deciding. The latter personality type is more likely to hold the plaintiff to a higher burden of proof. When liability is strong and the amount of damages is what is primarily in dispute, the prospective juror’s experience with money is crucial. A prospective juror who handles money at work or at home and who budgets projects and has to account for every penny is generally bad for the plaintiff. Open-ended rather than leading questions give the lawyer much more data about the juror: “How do you feel about money compensation for pain and suffering?” In a wrongful death case, “How do you feel about money damages for loss of society?” The lawyer for the plaintiff must make sure the prospective juror does not have in mind a “cap” on the amount of compensation he or she could award. A good question is, “Is there an amount of compensation above which you could not award regardless of the evidence?” Knowing detailed background information about the key witnesses in the case can be vital during voir dire. Often, certain jurors will have experiences, background traits or affiliations with schools similar or identical to key witnesses. These similarities may cause the trial lawyer to keep or excuse the juror. The important issue is to be aware of the possible influence on a juror so it can be considered, together with the other factors, in deciding whether or not to excuse a prospective juror. Generally, the court will not permit attempts to indoctrinate prospective jurors. Most judges will, however, permit lawyers to ask jurors certain hypothetical questions, such as whether they could render a certain verdict if certain facts are proven. Plaintiff’s counsel should strongly consider asking the venire whether they could award a certain sum of money if the evidence justifies it. The plaintiff must be certain the evidence will justify this figure. If unsure about how well the evidence will be accepted, counsel should use a dollar amount range during voir dire. The defense, on the other hand, must acknowledge that in a major personal injury case, the juror will feel sympathy for the plaintiff. The important commitment the defense needs to obtain is that a juror will set aside all sympathy and render a defense verdict if the plaintiff fails to prove his case. The defendant should look for jurors who give this promise without hesitation. WEEDING OUT BAD INFLUENCES Another important consideration during voir dire is making sure a bad juror does not poison the other prospective jurors. When the lawyer can sense answers to questions from a certain juror will be extremely prejudicial, a sidebar should be requested and, at that time, the court should be asked to have the questioning of this person outside the presence of the other jurors. Also, when the lawyer is outside the presence of other jurors, she can ask tougher questions of this “bad juror” in hopes of establishing a challenge for cause. Peremptory challenges should be saved if possible. Being able to control the final panels is key to picking a favorable jury. Too often lawyers think that they can get 12 perfect jurors. This is impossible. First, counsel wants to deselect the jurors who are likely to be adverse to her client and have strong personalities. The most dangerous juror is the person who not only has biases and prejudices against counsel’s cause but also has a strong personality and will push hard to impose his views on other jurors. This is the person counsel must identify and keep off of the jury. On the other hand, an attorney should not waste precious peremptory challenges on people who may not be very sympathetic to her client, but who do not have the personality to fight about it. The same careful preparation and strategy put into opening statement, witnesses, exhibits and closing arguments must be devoted to voir dire. Remember, these are the people counsel must persuade. Patrick A. Salvi is a partner at Waukegan, Ill.’s Salvi, Schostok & Pritchard, where he limits his practice to representing plaintiffs in catastrophic personal injury and wrongful death cases. He is a former president of the Illinois Trial Lawyers Association.

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