The preparation of the trial and settlement strategies in a products liability case can be a difficult process not only because of the numerous potential theories of liability, and defenses, but because these cases combine the human drama of a personal injury case with the technical detail found in commercial litigation in the context of a rapidly evolving and still unsettled body of law. During the trial phase of a product liability case, counsel should not forget that the jury should be his or her�prime concern and that no major decision should be made without a consideration of its impact on the jury. The following guidelines focus on the�voir dire process.


There are four methods for selecting a jury:

(1) The federal method. The court asks the questions, and if counsel wants to supplement the court’s voir dire, he must submit questions for the judge to ask the jury. If the opportunity to communicate with the jurors and subtly influence their views before the trial begins is a legitimate purpose, then the federal method is the least satisfactory of the alternatives now being used. However, counsel should not assume that he cannot have an effect on the content of the voir dire merely because the judge insists on conducting it. Indeed, an open minded judge who is willing to be educated by counsel as to the possible trouble spots in the selection of the jury will probably pick a fairer, more open-minded jury than will be the case if counsel is left alone in the jury room with unfettered freedom to influence the jurors by their questions. Most judges will accept proposed questions from counsel. The questions should not be boilerplate, but should be tailored to the specific case. Counsel should also consider moving for the right to submit additional questions to the court based on answers obtained from the initial round of questions.

(2) The attorney questions the jurors without the judge being present. In courts in which this procedure is followed, the voir dire may well be the most outcome determining phase of the case. This procedure tends to favor the plaintiff since his counsel generally questions first and usually will dominate the entire proceeding. In courts in which the lawyers conduct the voir dire, counsel has the opportunity to communicate directly with the jurors. This is an opportunity that exists at no other time in the trial and is consistent with the tradition that prohibits the attorneys from talking with, as opposed to talking to, the jury.

(3) Same procedure as in (2) except the judge is present in the court room.

(4) Same procedure as in (1) except the judge turns the questioning over to counsel after he has asked his questions.


The following guidelines can be used for counsel’s initial voir dire orientation:

(1) When appearing for the first time before a particular judge or in an unfamiliar courthouse, it is essential to develop a feel for what can and cannot be done during the voir dire.

(2) Determine how the voir dire will be conducted, the method of making challenges and the number of peremptory challenges.

(3) Consider making a motion in limine to prevent prejudicial material from being disclosed to the jury panel during voir dire.

(4) Prepare a jury selection chart on which comments about each prospective juror can be noted.

(5) If local practice permits a voir dire during which the respective counsel describe their case, it is important to get before the jury counsel’s views on the strengths and weaknesses in his case. Establishing credibility with the jury is a paramount goal, and there is no better way to this than to candidly tell a jury both the weaknesses and strengths of the case.


I. Types of Jurors. Counsel should determine in advance of jury selection the types of jurors that are desired and the types to be excluded. Different lawyers use different selection criteria. Among the more commonly used are picking jurors who seem to be similar to their clients and will identify with them; whose backgrounds and characteristics are similar to those of the parties and the principal witnesses; whose ethnic backgrounds, socio-economic class, and family status will produce certain attitudes and beliefs; whose body language reflects more about their attitudes than the answers to questions; and whose personalities are likely to favor one side or the other. No method is infallible, and counsel probably should use all of the above tempered with his instinctive reaction as to whether a juror appears to be fair-minded and someone with whom counsel seems to have a rapport. Counsel should consider the following factors:

(1) The nature of the product, the accident and the injury.

(2) the community from which the jury is selected: rural, suburban, urban, mixed; affluent, middle income, improvised, mixed; professionals office workers, farmers, factory workers, mixed.

(3) Juror’s children.

(4) Siblings.

(5) Education (including wife, children, parents).

(6) Present employment and employment history (including wife and parents).

(7) Ethnic and religious background.

(8) Social and economic status.

(9) Acquaintance

(10) Familiarity with the case.

(11) Litigation history of prospective juror and his family as a party or a witness.

(12) Accident history of prospective juror and his family.

(13) Prior jury service, type of case.

(14) Body language, for example: appearance, behavior, and facial expression are as useful as verbal responses.

II. Types of Questions. There are four types of questions that counsel should consider asking the jurors:

(1) Specific questions designed to elicit background information (for example: are you married?). But if counsel feels the subject matter may embarrass the juror, use a softer, less direct approach (for example: tell us about your family).

(2) Open ended questions designed to elicit attitudes and prejudices (for example: what are your opinions about foreign made products?).

(3) Leading questions to familiarize the jurors with issues in the case (for example: could you decide the case in plaintiff’s favor if the evidence showed that he was speeding, but that the brakes were defectively designed?).

(4) Questions designed to extract promises from the jurors concerning their duties as jurors that you will remind them of during summation (for example: will you promise me that you will not let the wealth of my client influence your verdict?).

III. Comments to the Jury. Counsel for defendant should consider reminding jurors of their duty to:

(1) be impartial;

(2) follow the instructions on the law from the judge;

(3) keep an open mind until the end of the case;

(4) treat a corporation and an individual in a similar fashion. (Many lawyers feel that telling a jury not to treat a large, wealthy corporation any differently than an individual is like telling a little boy not to put jelly beans in his ear.)

Counsel for the plaintiff should consider:

(1) reminding jurors of their duty to return a substantial verdict if the facts so warrant;

(2) pointing out to jurors the difference between burden of proof in civil and criminal trials;

(3) asking the jurors about their feelings concerning the civil jury system;

(4) telling jurors that plaintiff doesn’t want their sympathy and asks only that they render a fair verdict;

(5) explaining to jurors that plaintiff is proceeding under the law of strict liability and determining whether each juror is prepared to render a substantial verdict against a defendant who acted without fault.

Counsel for each side should:

(1) Save one peremptory challenge for a last minute disastrous juror.

(2) Disguise reasons for exercising a peremptory challenge or exercise it after other jurors have been questioned.

(3) Ask for side-bar conference when exercising a challenge for cause.

(4) Remember that in small communities it may be possible to obtain names of prospective jurors in advance and learn something of their backgrounds before the trial begins.

(5) Consider retaining an expert to prepare a favorable juror profile in cases of major significance.

IV. Waiver of Jury Trial. Counsel for the plaintiff should consider waiving a jury trial and counsel for the defendant may want a jury trial when, for example:

(1) plaintiff is a high-income professional — a bench trial may be to his advantage particularly if jurors are largely drawn from a low income area; or

(2) the trial judge has a history of awarding large verdicts in personal injury and product cases.

V. Brief Guide to Counsel’s Demeanor and Comportment Before the Jury. The following list of guidelines should assist counsel in shaping his general psychological demeanor and legal presentation before the jury:

(1) Make notes of juror’s backgrounds; they may be useful in framing a closing argument that fits a particular juror’s background.

(2) Do not show off, or be arrogant, discourteous, unfair.

(3) Do not ask jurors questions that will embarrass them.

(4) Jurors should not be cross-examined.

(5) Counsel should ask some questions of the panel as a whole and others individually.

(6) Refer to “we,” “our” and “us” when talking about the corporation client.

(7) All technical terms should be defined.

(8) Counsel should observe the jury throughout the trial and pool what he learns with what was learned during the voir dire. This information may be useful when making tough decisions on such matters as choice of witnesses, extent of expert testimony and emphasis and style of summation.

See generally: Keeton, Trial Tactics and Methods Ch. 7 (2d ed. 1973); Mauet, Fundamental of Trial Techniques Ch. 2 (1980); Herbert and Barrett, Attorney’s Master Guide to Courtroom Psychology Ch. 4 (1980); Jean, Trial Advocacy Ch. 7 (1974); Morrill, Trial Diplomacy Ch. 1 (2d ed 1975); Goldstein and Lane, Trial Techniques Ch. 9 (3d ed 1985).

This outline is intended as a general guideline and should not be treated as a complete listing of all the details of trial preparation. This outline in no way constitutes legal advice and�may have to be modified in light of the rules and practices of a particular jurisdiction.

John S. Allee is of counsel to Hughes Hubbard & Reed LLP (�in New York. Theodore V.H. Mayer, a partner at Hughes Hubbard & Reed, focuses his practice in the area of�complex litigation including product liability, toxic tort, and professional liability lawsuits, commercial arbitration and insurance coverage litigation. Robb W. Patryk is also a partner at the firm. He practices in the�area of complex litigation including product liability, toxic tort, securities, professional liability and employment litigation.

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